Thursday, November 12, 2015
Today's edition of Throwback Thursday highlights the work of Wake Forest immprof Margaret Taylor. In 1997, Professor Taylor wrote an article for the Center for Migration Studies series In Defense of the Alien. Her piece was called Symbolic Detention.
In that article, Professor Taylor criticized the "use of detention to send a message, in the hopes of deterring certain conduct or building confidence in [immigration] enforcement efforts," which she termed the "symbolic component of immigration detention." Her work continues to have relevance today as our government has not tired of using detention to "'restore credibility' to the immigration enforcement system."
To close, I offer you a throwback photo of Prof. Taylor from the former Wake Forest website featuring the ever popular "professor interacts with student" pose.
On-Line Symposium on Texas v. United States: Summary of the Fifth Circuit Opinion (Nov. 9, 2015) by Sadie Weller, Student, UC Davis School of Law
As part of the continuing on-line symposium on the Fifth Circuit ruling in Texas v. United States, UC Davis Law Student Sadie Weller prepared this summary of the opinion:
Summary of Texas v. United States, Fifth Circuit decision
On November 9, the Fifth Circuit handed down a lengthy opinion affirming the U.S. District Court for the Southern District of Texas’ grant of preliminary injunction against the United States, forbidding implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”). The Fifth Circuit, reviewing the order under abuse of discretion, decided that the district court’s decision must stand because 1) the states had standing to bring the complaint, 2) the states established a substantial likelihood of success on the merits of their procedural and substantive APA claims, and 3) the states satisfied the other elements required for an injunction (substantial threat of irreparable injury which outweighs any harm that would be caused if injunction were not issued, and the grant of the injunction would not disserve the public interest.)
First, the majority established the plaintiff states’ Article III standing. They agreed that DAPA would cause a significant economic injury of at least “several million dollars” because of the widened eligibility for state-subsidized driver’s licenses (which cannot be offset, as the government contended, by registration fees, auto insurance, and decreased reliance on social services resulting from employment authorization). In response to the government’s assertion that this injury is self-inflicted because Texas chose to use federal immigration classifications in deciding who to give licenses to (those lawfully present in the country), the court said that it was the federal government’s policy changes, not Texas’, that caused the injury. The court also found that DAPA affects the states’ “quasi-sovereign” interests by pressuring them to change their state laws. Without much discussion, the court concluded that DAPA was the proximate cause of these injuries, and enjoining DAPA would redress them.
The court rejected, or found unimportant, the government’s contentions that the states lacked jurisdiction because decisions not to prosecute cannot be challenged, that the states have no jurisdiction in the immigration context, and that the standing analysis ought to be more rigorous when the court, in deciding the merits of a case, would have to weigh on the constitutionality of an action of another branch of the federal government.
Next, the majority found that the states satisfied the “zone of interests” standing test in order to sue under the APA. This relatively undemanding test requires only that the plaintiffs’ interests are arguably protected by the statute; here, by the INA. Since prior legislation explicitly allows states to deny public benefits to illegal aliens, the DAPA provisions that change the immigration classification of millions of people affect the states’ immigration enforcement rights.
Though actions committed to agency discretion are generally unreviewable under APA §701(a)(2), the action can still be reviewed to determine whether the agency exceeded its statutory authority. Rejecting the government’s contention that DAPA is “presumptively unreviewable prosecutorial discretion,” the court found that “removing a categorical bar on receipt” of public benefits is not a prosecution or nonenforcement decision and thus is subject to judicial review.
Substantial Likelihood of Success:
In deciding whether Texas had established the substantial likelihood of success on its claim that DAPA must be subjected to notice-and-comment rulemaking, the court found that DAPA had a binding effect and modified substantive rights and interests, and was thus not exempt as a “policy statement.” The court thus found that the states established a substantial likelihood of success on this procedural claim.
As to the states’ substantive APA claim, the court found that, even if Chevron deference applied to the Department of Homeland Security (DHS)’s action, DAPA is still an “unreasonable interpretation that is ‘manifestly contrary’ to the INA.” Since DAPA grants lawful status to individuals who have never had legal status, and “may never receive one,” the majority found that it is unlike other programs such as the “Family Fairness” program, an “interstitial” part of a statutory legalization plan, or other programs that merely changed the status of individuals from one legal status to another. The majority classified DAPA as “affirmative agency action” and agreed with the states that the agency should have gone through notice-and-comment rulemaking.
The majority also found that Congress did not, in fact, leave a “gap” for the DHS to fill. The majority thus concluded that the DAPA Memorandum was not authorized by statute and substantively violated the APA, a holding which reached beyond the scope of the district court’s decision. As the last prong of the injunction requirement, the court found that “the public interest easily favors an injunction” because the states’ interests would not be easily restored if DAPA were implemented and then invalidated after trial.
Scope of Injunction
In response to the government’s contention that the nationwide scope of the injunction constituted an abuse of power, the court responded that the Constitution, Congress, and Supreme Court all call for uniform immigration policy.
The court concluded that the district court did not abuse its discretion and thus affirmed the order granting the preliminary injunction.
Judge King opens her thorough dissent by asserting that of DAPA’s three primary objectives, two explicitly further long-standing goals of U.S. immigration policy: to permit lawful employment and enhance immigrant’s ability to be self-sufficient, and to “come out of the shadows” and register their identity and location (which furthers DHS’s law enforcement objectives). Judge King argues that the DAPA Memorandum’s deferred action decisions are, in fact, exercises of prosecutorial discretion and thus unreviewable. Alternatively, she argues that since DAPA is to be implemented on a discretionary, case-by-case basis, then it is not subject to notice-and-comment rulemaking requirements.
Judge King contends that because the majority has no “legitimate basis” for concluding that DHS’s decisions to grant or deny DAPA requests would be cursory, the majority could not affirmatively rule, as it did, that these reviews were not truly exercises of discretion. Judge King asserts that DAPA is instead a general statement of policy and exempt from notice-and-comment. She argues that the “indirect economic effects of agency action” constitute insufficient injury to bestow standing upon the states. Judge King also refutes the majority’s conclusion that DAPA confers legal status upon its recipients, since the memorandum itself states that “deferred action does not confer any form of legal status in this country” and “may be terminated at any time at the agency’s discretion.”
Judge King also disagrees with the majority that, in determining whether Chevron deference applies, Congress has directly addressed the issue of deferred action provided for under DAPA. She instead argues that Congress has not spoken to the precise question at issue, so Chevron deference applies, and because DAPA was formulated under a reasonable interpretation of what the INA authorizes, it does not go beyond the agency’s statutory authority. Thus, it does not constitute a substantive APA violation.
This is the second installment of the ImmigrationProf blog on-line symposium on the Fifth Circuit's ruling on Monday in Texas v. United States, which enjoined the Obama administration's expanded deferred action program. The author is Stephen Legomsky, John S. Lehmann University Professor Emeritus, Washington University School of Law, and former Chief Counsel, USCIS and former Senior Counselor to the Secretary of Homeland Security.
After an extraordinary delay that dissenting Judge Carolyn King rightly called “unjustifiable,” the Fifth Circuit on November 9 finally handed down its decision in Texas v. United States. The ultimate outcome didn’t surprise anyone on either side of the DAPA debate. The two judges in the majority had long ago signaled their feelings about DAPA generally and the legal issues it raises.
Still, there were a few things about the decision that I think worth highlighting:
The most obvious point is that the Fifth Circuit went even further than Judge Hanen, who had based the preliminary injunction solely on the procedural ground that DAPA could not be implemented without formal notice-and-comment rulemaking. In contrast, the Fifth Circuit found Texas likely to prevail on both the notice-and-comment issue and the substantive legal authority issue.
Silver linings are hard to find in this decision, but in ruling on both issues the Fifth Circuit might have done DHS a favor. Had the court affirmed Judge Hanen’s order solely on notice-and-comment grounds, it would have been exceptionally risky for DHS to issue a Notice of Proposed Rulemaking. Doing so would have jeopardized the chances of the Supreme Court granting certiorari, since it would have been much harder to convince four Justices that the issuance of an NPRM would not render the case moot.
By affirming on both grounds, the Fifth Circuit has dramatically changed that calculus. Now, initiating the notice-and-comment process would still not enable DHS to implement DAPA unless and until the Supreme Court reverses the Fifth Circuit on one of the other issues -- standing, justiciability, or substantive legal authority. While it is still possible for an NPRM to render those other issues moot (for example, if the content of the regulation differs substantially from the content of DAPA), it is now less likely to jeopardize the granting of certiorari than it would have been had the Fifth Circuit relied solely on the notice-and-comment argument. As a result, the Fifth Circuit has given DHS a strategic option that a narrower opinion based solely on notice-and-comment would not have afforded.
A second observation is that, like the district court, the two judges in the Fifth Circuit majority conflated what should have been two separate, albeit related, issues. One issue is whether DHS has the authority to implement DAPA itself. The other issues are whether, once deferred action is granted, DHS has the authority to deem the person lawfully present and/or the authority to grant work authorization. The latter consequences flow from preexisting legal authority (statutory in the case of lawful presence, and statutory, regulatory, and judicial in the case of work permits) that the DAPA memo does not change in any way. DAPA itself is simply a specific vehicle for prosecutorial discretion, which the court did not question. So if the court felt that DAPA itself would be legal but for these other consequences, it should have approved the DAPA memo and only then proceeded to decide whether the Secretary had the authority to deem the recipients lawfully present and grant them work permits. Each of these issues generates its own set of competing legal arguments and competing policy considerations. By conflating them, the court abdicated its duty to explain why these preexisting authorities did not permit DHS to deem the recipients lawfully present and grant them permission to work.
A third observation, which follows from the preceding one, specifically concerns the concept of “lawful presence.” ‘This was a dominant theme in the majority opinion. The majority repeatedly says or implies that there is no statutory authority for deeming millions of undocumented immigrants lawfully present. I found it striking that the majority would rely so heavily on that assertion without even mentioning INA § 212(a)(9)(B)(ii), which at least on its face seems to provide precisely that authority. This provision recognizes that the Attorney General (now the Secretary of Homeland Security) may authorize a period of stay for “an alien” (it does not limit this authority to particular subclasses of “aliens”), even when such periods of stay are not already authorized by the statute itself. The same provision explicitly defines unlawful presence so as to exclude any such authorized periods.
Perhaps one can argue that this provision doesn’t mean what it says. If that’s what the Fifth Circuit thought, then it could and should have acknowledged this provision and explained why it fails to supply the necessary authority. But the Fifth Circuit did not do even that. Instead, like Judge Hanen, their preferred path was to ignore this provision entirely. Since both the government and amici had cited section 212(a)(9)(B)(ii) in their briefs, and since the dissent cited it as well (the majority surely had the opportunity to read the dissenting opinion in draft before finalizing its opinion), this omission is inexplicable – unless the majority felt it could not persuasively explain this provision away and hoped no one would notice.
Finally, the Fifth Circuit majority approved Judge Hanen’s “finding” that, if DAPA were to be implemented, the DAPA adjudicators would defy the Secretary’s clear and repeated instructions to evaluate each case individually and to exercise discretion even when the threshold criteria are met. I would submit that this is not even a case in which the evidence to support that speculation was merely flimsy; it was nonexistent.
As Judge King cogently pointed out in her dissent, the burden of proof on all the issues before the court rests with the plaintiffs. Yet none of the considerations that led Judge Hanen to his conclusion amount to probative evidence that USCIS adjudicators will fail to exercise true discretion. He emphasized, for example, that the approval rates for DACA were high. (He actually overstated them, saying that they are somewhere between 95% and 99.5%. USCIS’s actual data showed a 95% approval rate. The 99.5% figure was based solely on the unsupported and wildly inaccurate assertion of USCIS employee Kenneth Palinkas, the President of the employee’s union.)
Well, of course the DACA approval rates are high. If you’re undocumented, and in addition you have some other negative conduct in your background, the last thing you’re likely to do is initiate contact with the immigration authorities and say “This is my name, this is where I live, I’m undocumented, I have this other misconduct you should know about, and here are my fingerprints so that the FBI can do further investigation on me. And also, here’s a check for $465 for a benefit that I know I’m unlikely to receive.” So this is a highly self-selected group. The leap from “the approval rate is 95%” to “therefore the decisions are being rubber-stamped” is a nonsequitur.
Judge Hanen had also relied on Palinikas’s other assertion – also unsupported – that because the adjudications are being performed in the regional Service Centers on the basis of a paper record (and FBI investigation) rather than with personal interviews, the decisions must be getting rubber-stamped. Never mind that an interview could either help or hurt any given applicant. Never mind that this is how USCIS conducts the vast majority of its adjudications, not just DACA requests. Never mind that the guidance encourages the DACA adjudicators to refer individual cases to the local offices for personal interviews in cases where they think interviews would be helpful. And never mind the surprise that the more than 40,000 DACA requestors who have already been denied on the merits will feel when they read that DACA requests are rubber-stamped.
Judge Hanen also stated that USCIS had been unable to identify any cases in which DACA requestors had been found to have met all the threshold criteria but denied nonetheless in the exercise of discretion. First, that is not true. In his sworn affidavit to the court, Associate Director for Service Centers Donald Neufeld had identified several such cases. Some critics have said that his only cited examples were ones in which the adverse discretionary factors also eliminated eligibility under the threshold criteria. That too is incorrect. For example, fraud in prior dealings with DHS (not just fraud in the DACA requests themselves) accounted for some discretionary denials, even though such prior fraud did not negate any of the threshold criteria. Perhaps more important, as Judge King noted in her dissent, the adjudicators exercise additional broad discretion in applying some of the threshold criteria themselves, especially those relating to public safety and national security.
But most unnerving of all was the assumption that, if DACA adjudicators were rubber-stamping approvals (a premise for which, again, there was no evidence in any event), DAPA adjudicators will do the same. Since DAPA has not begun yet, that assumption is speculative. Moreover it is speculation that is both unsupported by the evidence (keeping in mind, again, that Texas has the burden of proof) and irrational. The court’s only asserted basis for this speculation was the Secretary’s statement that the DAPA process would be “similar” to the DACA process. As Judge King pointed out, “similar” does not mean “identical.” Since the substantive threshold criteria for DAPA bear little if any resemblance to those for DACA, the assumption that a high approval rate for DACA (whose beneficiaries were brought here as children) augurs a similar result for DAPA has no basis in the evidence.
There are many other flaws in the Fifth Circuit opinion, but I’ll stop with that list. DHS immediately announced it would seek Supreme Court review, and I hope the extraordinary delay by the two judges in the Fifth Circuit majority will not prevent the Court from hearing the case during the current term. I would expect DOJ to file its certiorari petition with unusual speed to minimize the chances of missing the relevant deadlines. Given the national importance of the issue, the short time left for implementation if the injunction is vacated, and the divergence of views from judge to judge and state to state, I fully expect the Court to take the case.
Will the government ultimately prevail? Justice Kennedy is the most likely swing vote, and the government has three alternative paths to victory. It needs to prevail on (a) the standing issue; or (b) the justiciability issue; or both the notice-and comment issue and the substantive legal authority issue. Although the comments in this blog go only to the substantive issue, I think the government has a strong case on all of those issues and remain optimistic as to the ultimate outcome. If that prediction pans out, millions of our long-term neighbors and their families will achieve what they have craved for so many years – a recognition of their human dignity, a sense of hope, the freedom from fear, and meaningful life opportunities for themselves and their children. As so many others have observed, our nation will benefit even more.
In 1997, an underdog group of lawyers and activists prosecuted rape as a crime against humanity. The Uncondemned is the against-the-odds story of their fight for the first conviction—and of the women who braved witness assassinations to testify.
In 1994, Pierre Prosper had 22 triple-murder cases on his desk at the Los Angeles District Attorney's hard-core gang unit. Sara Darehshori was about to start her first job at a law firm. Former Philadelphia public defender Patricia Sellers had just moved to Brussels to be with her new husband. Human rights activist Binaifer Nowrojee was working on her thesis. Lisa Pruitt was finishing her PhD. And then, two simultaneous genocides shocked the world.
Bosnia and Rwanda were resounding failures of UN doctrine. But the perpetrators had every reason to think they had gotten away with war crimes--none had been prosecuted since 1946. However, they hadn’t counted on the overwhelming power of Western guilt.
Two tribunals were set—sort of. When Sara Darehshori landed in Kigali, Rwanda in September 1995 to begin her job as an investigator, there was no one at the airport to greet her—she didn’t even know where she was staying, let alone working. She hitched a ride with a NGO to the nearest hotel.
In Brussels, Patricia Sellers thought she’d work as a “normal trial attorney” with the tribunals. But the chief prosecutor had another idea. He handed her the dossier on sexual assault. Although rape had been declared a war crime since 1919, it had never been prosecuted. That was going to be her job.
Binaifer Nowrojee was a researcher at Human Rights Watch, working in the women’s rights division. There were a lot of rumors about sexual violence during the genocide, but no firm numbers. Binaifer pushed HRW to send her to Rwanda, where she would end up writing the report-heard-around-the-world.
Pierre Prosper showed up just in time to build the case. And then suddenly the 31-year-old found himself in charge.
And Lisa Pruitt, age 32, was sent to do a special report for the tribunal about the possibility of pursing charges of rape as a war crime. She was devastated when the report was buried.
These were the leads who intersected on the way to making judicial history. They were between 27 and 34, making up international criminal law as they went along. They probably had absolutely no business being the leads on the first genocide trial in history, but there was no one else to do it. And as for tying sexual violence into the charges—no one was sure they could make it stick. The case at hand was a small-potatoes mayor who hadn’t raped anyone himself.
But then, three women came forward…and the world of criminal justice changed forever.
On-Line Symposium on Texas v. United States: Seeking to Understand the Fifth Circuit Ruling on Deferred Action by Shoba Sivaprasad Wadhia
This is the first installment in an on-line symposium on the Fifth Circuit's ruling on November 9 in Texas v. United States, which affirmed the injunction barring the implementation of President Obama's expanded deferred action program.
Last November 20, 2014, President Obama announced a series of executive actions on immigration, which contained two specific programs to focus deportation resources. The first was for young people and extended “Deferred Action for Childhood Arrivals” 2 to 3 years, among other changes. The second created a new guideline called “Deferred Action for Parents of Americans and Legal Residents” for qualifying parents who have resided in the United States for at least five years. Deferred action is a form of prosecutorial discretion in immigration law which in turn, is associated with the government’s decision to refrain from bringing enforcement actions against individuals for humanitarian and resource reasons. This type of discretion has existed in immigration law for decades and is not only grounded in the immigration statute and other laws but is also inevitable in light of the limited resources the Department of Homeland Security holds to enforce these laws. The recent deferred action programs have been on hold because of litigation brought by the state of Texas and 25 states challenging the legal authority of the president’s actions.
On November 9, 2015, a majority panel at the Fifth Circuit Court of Appeals ruled against the Administration, and went even further than the lower district court by concluding that even if the Deferred Action for Parents of Americans and Legal Residents (DAPA) program followed the procedural requirements, the DAPA memorandum is nonetheless contrary to the Immigration and Nationality Act and substantively violates the Administrative Procedure Act. The following day, the Department of Justice issued a statement confirming that it would appeal the decision to the U.S. Supreme Court. The Fifth Circuit’s decision was predictable in light of the panel composition (two conservative judges who previously ruled against the Administration when it filed an appeal to an emergency stay with the Fifth Circuit on the same case). Of note, Judge Carolyn King issued a sharp dissent that ran as many pages as the majority opinion and agreed with the legal foundation advanced by the Department of Justice, more than 130 law professors, and scores local government officials (including the Mayor of my own hometown State College). Possibly, the case will be heard by the Supreme Court in summer 2016, and pave the way for the Department of Homeland Security to implement the deferred action programs now on hold before the presidential election.
While there is a possibility for the Supreme Court to hear the case in Texas, the political moves and legal mistakes uttered throughout this litigation cannot be ignored. Oral arguments on the merits of the injunction were held on July 10, 2015 and heard by a three-judge panel. In my commentary to this hearing, I expressed frustration about the flaws made by the plaintiffs during the oral arguments as it related to the definition of “deferred action” and the myth that the DAPA created new law. To the contrary, and as eloquently phrased by Judge King in her dissenting opinion, “Deferred action decisions, such as those contemplated in the DAPA Memorandum, are quintessential exercises of prosecutorial discretion.”
Left untouched despite the litigation was the Administration’s priorities memo entitled “Policies for Apprehension, Detention, and Removal of Undocumented Immigrants.” The priorities memo is operational today, and in six pages attempts to spell out the Administration’s priorities for removal and a refined prosecutorial discretion policy. This same memo lists more than one dozen types of prosecutorial discretion in immigration law. The implementation of this memo coupled with a four-month delay by the Fifth Circuit in issuing an opinion has inflicted great concern and fear to individuals and families who had placed their faith in the president’s deferred action programs. Judge King expressed concern for this delay in her dissent when she remarked: “I have a firm and definite conviction that a mistake has been made. That mistake has been exacerbated by the extended delay that has occurred in deciding this “expedited” appeal. There is no justification for that delay.” Whether or not the delay by the Fifth Circuit was innocent or political, the human impact of this hiatus is real.
As we approach the one-year anniversary of President Obama’s announcement on executive actions on immigration, I hope that the longstanding legal foundation for prosecutorial discretion in immigration law; the common sense need for the Administration to target its limited resources towards true enforcement priorities; and the compassion that has laced the deferred action program for decades prevail.
Shoba Sivaprasad Wadhia, the Samuel Weiss Faculty Scholar and Clinical Professor of Law, Penn State Law; author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press 2015). This contribution is cross-posted on the ACS blog.
CNN reportys on a horrendous case of a human trafficking victim from Mexico. Karla Jacinto told the reporter that, by her own estimate, 43,200 is the number of times she was raped after falling into the hands of human traffickers. She says up to 30 men a day, seven days a week, for the best part of four years. Her story highlights the brutal realities of human trafficking in Mexico and the United States, an underworld that has destroyed the lives of tens of thousands of Mexican girls like Karla.
Human trafficking has become a trade so lucrative and prevalent, that it knows no borders and links towns in central Mexico with cities like Atlanta and New York.
Wednesday, November 11, 2015
Over the next month or so, the ImmigrationProf blog will be running an on-line symposium on the Fifth Circuit's ruling in Texas v. United States. Stay tuned. If any reader is interested in contributing, please let me know at firstname.lastname@example.org. Stay tuned!
Airing on PBS on December 28, East of Salinas takes us to the heart of California’s “Steinbeck Country,” the Salinas Valley, to meet a bright boy and his dedicated teacher — both sons of migrant farm workers.
With parents who are busy working long hours in the fields, third grader Jose Ansaldo often turns to his teacher, Oscar Ramos, for guidance. But Jose is undocumented; he was born in Mexico,. Like many other migrant children, he is beginning to understand the situation— and the opportunities that may be lost to him through no fault of his own.
East of Salinas follows Jose and Oscar over three years: the boy is full of energy, smarts, and potential, while his teacher is determined to give back to a new generation of migrant children. Many of the students that enter Oscar's third grade class at Sherwood Elementary School in Salinas have never been to the beach, even though it’s only twenty miles away. Their parents work from sunup to sundown. They live in cramped apartments in neighborhoods plagued by gang violence. The kids take on the day- to-day stresses of their parents: making ends meet, dealing with acute health issues, fearing deportation. In the face of these challenges, Oscar gives his student’s access to a world that often seems beyond their reach.
Jose is one of Oscar’s most gifted students. Despite having moved between seven different schools in three years he still excels in math. But Oscar can only do so much. For Jose, a student with such promise, East of Salinas demonstrates the cruelty of circumstance — a cruelty that touches on the futures of millions of undocumented kids in America.
Guest blogger: Sally Horna, second-year law student, University of San Francisco:
Picture your very worst fear as a teenager. Was it getting caught sneaking out of the house on a school night, or perhaps failing your driver’s test three times? These fears are practically juvenile when compared to the nightmare that became Diane Guerrero’s reality when she came home from school one day to find that her parents and brother had been detained and deported to Columbia. That tragic afternoon marked the beginning of Diane’s new life, where she had to grow up alone without the comfort and guidance of her family.
For the average American teenager, having your parents taken away from you seems like an odd concept, but for Diane and the millions of teens living with undocumented parents, it’s a fear they hope they never have to face. So what separate’s Diane’s experience from the many other accounts of family deportation? Her visibility and advocacy.
Unless you’ve been living under a rock, you probably recognize Diane from her standout role on Orange is the New Black where she plays “Martiza” – along with her comedic counterpart “Flaca” (Jackie Cruz)– as well as her supporting role as “Lina” on Jane the Virgin. One year ago on November 15, 2014, Diane shared her personal and heartbreaking experience in an Op-Ed for the Los Angeles Times where she boldly calls out the government for neglecting to see if she would even survive on her own as a fourteen-year-old without supervision.
Who would pay the rent and all the bills? How would she feed herself? The government could not care less. It’s clear that while the government was quick to invade her home and tear her family apart, they nevertheless turned a blind eye when it came to helping Diane solve a problem they created.
In the Op-Ed, Diane adds that the issues of the immigration system affect everyone, not just those who are undocumented. She issues a call to action targeted specifically at President Obama, urging him to follow through on his promise to provide deportation relief for families.
As with any opinion piece, Diane’s article received criticism from readers. One reader, Jeanne Mount, had the audacity to blame the victims–her parents–for “their own bad choices” and for failing to make arrangements for her in the event of their deportation. Her argument is, “If someone doesn’t want to be deported, then [they] shouldn’t violate the immigration laws laid out in Title 8 of the United States Code.” Congratulations, Jeanne, you’ve proven you know how to Google “Immigration Law Codes.”
Mount goes so far as to say, “The ‘system’ is not what needs fixing–it’s the attitudes of those who want to game and abuse the system that need fixing.” Seriously, Jeanne? People who come into this country, work themselves to the bone, and make countless sacrifices for their families need an attitude adjustment? That’s what you say about rowdy teenagers who talk back to their parents, not about people who risk their lives coming to America. It’s the “system” that needs an attitude adjustment because as of right now it’s almost impossible for people to enter the country legally. Not only that, the path to citizenship is no more than a lonely, unpaved dirt road.
Just as a contextual note, Jeanne Mount writes in from Beverly Hills, California. You read that correctly. Beverly Hills, the sheltered little superficial bubble where people’s biggest concern is what brunch spot to go to or what new yoga studio they want to try out next. Thanks for your insight, Jeanne from Beverly Hills.
Diane is living proof that immigrants are not abusing birthright citizenship, but instead using it to really affect change. For instance, she partnered up with Marriott International’s “#LoveTravels” Campaign, where she and many other notable Latin artists share their personal stories about traveling and how it connects them with their culture and their families. She also opens up about her passion for human rights, primarily immigration reform for separated families, and how traveling is her way of connecting to her roots, but also connecting with other organizations that are pushing for change. Through this campaign, Diane is using her citizenship and her status as a celebrity to bring awareness and visibility to this pressing issue.
But Diane’s activism doesn’t stop there. She also volunteers at the Immigration Legal Resource Center, a nonprofit organization that advances immigrants’ rights. Additionally, Diane worked with the Obama administration on their “Commit to Citizenship” campaign that strives to make the path to citizenship much more attainable fore legal residents.
Most notably, Diane and fellow Orange co-star Jackie Cruz joined forces and appeared on a video released earlier this month¬– featured on MiFamiliaVota.org¬– urging young Latinos to register to vote in this upcoming presidential election. The video emphasizes that now is the time for Latinos to “show their political muscle,” and they are absolutely right. As citizens, especially birthright citizens, it is now within our power to make change happen, but that can’t be done if we as young Latinos are passive this election and in the elections to come. Small actions today can lead to a snowball effect that will have a significant effect on immigration reform in the future, but we need to act now.
I commend Diane, Jackie, and many other Latinos for not only starting a conversation on immigration reform, but for showing us that anyone can be an active participant. We don’t have to be celebrities to advocate for immigration reform, but it’s refreshing to see people in the spotlight who are bringing these issues out of the shadows and into the public eye. So I thank you, Diane Guerrero, for using your power for good, and for giving us, tu gente, an icon and someone to believe in.
Jonathan Martin and Patrick Healy in the New York Times reported on the Republican presidential candidates clashing over immigration and other policies at the debate (full transcript here) in Milwaukee, Wisconsin last night, with Ohio Governor John Kasich and former Florida Governor Jeb Bush "heaping scorn on Donald J. Trump’s plan to deport unauthorized immigrants." Kasich and Bush presented themselves as experienced chief executives who had practical solutions to deal with national challenges like immigration. Yet Trump and Senator Ted Cruz of Texas, attacked any"amnesty" and argued that undocumented workers were driving down Americans’ wages.
In discussing immigration, Trump again endorsed a new mass deportation campaign targeting persons of Mexican ancestry like that championed by President Dwight Eisenhower (and was known as "Operation Wetback"). Now viewed as a civil rights blemish on U.S. history, Operation Wetback resulted in mass arrests and deportations, allegations of physical abuse and civil rights violations, and the deportation of thousands of U.S. citizens of Mexican ancestry. Juan Garcia's book Operation Wetback: The Mass Deportation of Mexican Undocumented Workers in 1954 (1980) is the classic historical treatment of this regrettable chapter in U.S. history.
Immigration clearly is a dividing line among the Republican candidates. Bush and Kasich favor a comprehensive immigration overhaul. Trump has expressed harsh language about immigrants in the country illegally.
Several other candidates, like Senator Marco Rubio of Florida and Ben Carson, received a pass from the moderators on immigration. Kasich took on the issue directly after Trump defended his plan to build a wall along the Mexican border and to identify and deport some 11 million people.
Donald Trump also praised the Fifth Circuit decision on Monday putting on hold President Obama's expanded deferred action program.
Tuesday, November 10, 2015
Georgetown University's Center for Applied Legal Studies (CALS) announces that it is now accepting applications for its annual fellowship program in clinical legal education. CALS will offer one lawyer a two‑year teaching fellowship (July 2016‑June 2018), providing a unique opportunity to learn how to teach law in a clinical setting.
At CALS, our two fellows and faculty members work as colleagues, sharing responsibilities for designing and teaching classes, supervising law students in their representation of clients, selecting and grading students, administering the clinic, and all other matters. In addition, the fellow will undertake independent legal scholarship, conducting the research and writing to produce a law review article of publishable quality.
This fellowship is particularly suitable for lawyers with some degree of practice experience who now want to embark upon careers in law teaching. Most of our previous fellows are now teaching law or have done so for substantial portions of their careers.
Since 1995, CALS has specialized in immigration law, specifically in asylum practice, and our docket focuses on presenting asylum claims in immigration court. Applicants with experience in U.S. immigration law will therefore be given preference. The fellow must be a member of a bar at the start of the fellowship period.
The fellow will receive full tuition and fees in the LL.M. program at Georgetown University, and a stipend of at least $53,500 in each of the two years. On successful completion of the requirements, the Fellow will be granted the degree of Master of Laws (Advocacy) with distinction.
Recent holders of this fellowship include Mary Brittingham (1995-97), Andrea Goodman (1996-98), Michele Pistone (1997-99), Rebecca Story (1998-2000), Virgil Wiebe (1999-2001), Anna Marie Gallagher (2000-02), Regina Germain (2001-2003), Dina Francesca Haynes (2002-2004), Diane Uchimiya (2003-2005), Jaya Ramji-Nogales (2004-2006), Denise Gilman (2005-2007), Susan Benesch (2006-2008), Kate Aschenbrenner (2007-2009), Anjum Gupta (2008-2010), Alice Clapman (2009-2011) Geoffrey Heeren (2010-2012), Heidi Altman (2011-2013), Laila Hlass (2012-2014), and Lindsay Harris (2013-2015). The current Fellows are Jean C. Han and Rebecca L. Feldmann. The faculty members directing CALS are Andrew Schoenholtz and Philip Schrag.
To apply, send a resume, an official or unofficial law school transcript, a writing sample, and a detailed statement of interest (approximately 5 pages). The materials must arrive by December 1, 2015. The statement should address: a) why you are interested in this fellowship; b) what you can contribute to the Clinic; c) your experience with asylum and other immigration cases; d) your professional or career goals for the next five or ten years; e) your reactions to the Clinic's goals and teaching methods as described on its website, http://www.law.georgetown.edu/clinics/cals/index.html; and e) anything else that you consider pertinent. Address your application to Directors, Center for Applied Legal Studies, Georgetown Law, 600 New Jersey Avenue, NW, Suite 332, Washington, D.C. 20001, or electronically to email@example.com.
When Eril Andrade came back from sea in a coffin his body was covered in bruises and cuts, and he was missing an eye and his pancreas. The handwritten note from his captain said he died in his sleep.
Ian Urbina's Series "The Outlaw Ocean" continues.
For local Filipino police investigators though the real mystery came when they realized that for over two decades thousands of other men from the Philippines and a half dozen other countries had been similarly recruited by a Singapore-based manning agency under false promises, dispatched to sea sometimes for years on notoriously violent and dangerous Taiwanese tuna longliners, then sent back home, often without pay. How could a firm like this operate with such impunity?
This next installment in The Outlaw Ocean series looks at the little-known industry of maritime manning agencies which supplies the crews working on most of the world's ships. We reported from Taipei, Cape Town, and Singapore but especially in the Philippines which produces roughly a quarter of seafarers globally. I focused on one firm in particular, Step Up Marine Enterprise, which recruited Mr. Andrade and has had an especially egregious track record of human trafficking over the years.
At the twelfth plenary meeting of the Migration Policy Institute’s Transatlantic Council on Migration, experts focused on the scale and implications of these trends for countries in Europe and beyond, and posed the question: What concrete actions can governments and societies take to mitigate the costs of emigration and capture more of its potential benefits?
Today, the Transatlantic Council launches the first in a series of reports from the meeting, with the release of the Council Statement. In Rethinking Emigration: Turning Challenges into Opportunities, Transatlantic Council Convenor and MPI President Emeritus Demetrios G. Papademetriou outlines the reality of today’s emigration, which is much more complex than past flows while still being driven primarily by individuals seeking to take account of pronounced opportunity differentials and create better futures for themselves and their families. He also identifies a number of challenges and opportunities for governments looking to address the departure of their residents and set the stage for their continued engagement with their countries of origin.
Papademetriou outlines a series of guiding principles to help governments attenuate some of the adverse effects of emigration, emphasizing the importance of long-term structural reforms that create better opportunities to retain (and attract back) talented workers, and the importance of engaging thoughtfully with nationals while they are abroad.
Read the report online here.
Violetta Armour holds family close to her heart, a concept she hopes to share in her new book “I’ll Always Be With You.” Drawing from her own experience as a first-generation American with Bulgarian roots, Armour tells the story of Teddy, a young boy who has lost his father and finds comfort in a book his great-grandfather carried with him to America. Through this life-changing book, Teddy embraces his origins and finds the peace of mind he’s been looking for. “I’ll Always Be With You” offers insight into the trials of facing racial tensions and prejudices while encouraging the celebration of culture and traditions.
Veterans, service members and military spouses across the country will become U.S. citizens this week as they take the Oath of Allegiance at special Veterans Day naturalization ceremonies. U.S. Citizenship and Immigration Services will highlight the sacrifices that military members and their families have made while serving our country. From Nov. 7-13, USCIS will welcome more than 10,000 new citizens in nearly 130 naturalization ceremonies across the country and around the world. Of those being naturalized, more than 255 are veterans, service members and military spouses.
Many current and former military members and their families are eligible for citizenship, including expedited screening and overseas processing, under special provisions of the Immigration and Nationality Act. Since Oct. 1, 2001, when data collection on military naturalizations began, more than 109,000 service members have become U.S. citizens, including individuals serving in Iraq, Afghanistan, South Korea, Germany, Japan and elsewhere. In 2015 alone, USCIS hosted nearly 175 naturalization ceremonies at military installations in the U.S. and abroad.
USCIS has a military outreach program that provides information about immigration and naturalization to service members and veterans at military installations, Department of Veterans Affairs hospitals, universities and various military organizations. USCIS also has offices on multiple military installations, including Fort Benning, Georgia; Camp Lejeune, North Carolina; and Joint Base San Antonio-Lackland, Texas. These offices identify recruits who may be eligible for naturalization.
USCIS’ Veterans Day activities this year will feature a naturalization ceremony at the USS Torsk and USS Constellation, located at the Inner Harbor in Baltimore, Maryland, on Nov. 11. During this event, Dan Renaud, USCIS associate director for the Field Operations Directorate, will administer the Oath of Allegiance, and Sgt. Maj. Mercy A. Diez of the U.S. Army Band will be recognized as an Outstanding American by Choice.
Other ceremonies include events at:
- American Heroes Air Show in Orlando, Florida, on Nov. 7.
- Cullman Performance Hall of Tryon Palace in New Bern, North Carolina, on Nov. 11.
- Joint Base Lewis McChord in Seattle, Washington, on Nov. 13.
In addition, 12 recruits will become new citizens at the Marine Corps Recruit Depot in San Diego, California, through the Naturalization at Basic Training Initiative. Developed with the Department of Defense, this program allows enlisted service members to complete the naturalization process during basic training.
Tom Jawetz and Sanam Malik for the Center for American Progress consider the challenges to birthright citizenship. They begin: "Once again, the topic of birthright citizenship has resurfaced in the broader immigration debate. Immigration opponents are proposing legislation intended to undo this bedrock principle of American society written into the 14th Amendment of the U.S. Constitution: If you are born in the United States, you are a citizen."
The 2010 death of 42-year-old Anastasio Hernandez-Rojas raised complaints of excessive force from the Mexican government and others. The Justice Department examined the case for evidence of a civil rights violation.
Last Friday, November 6, 2015, the U.S. Department of Justice announced that following a comprehensive investigation it would not pursue criminal against the federal agents involved in the in-custody altercation that resulted in the death. The announcement states that:
"After a careful and thorough review, a team of experienced federal prosecutors determined that the evidence was insufficient to pursue federal criminal civil rights charges. Under the applicable federal criminal civil rights law, prosecutors must establish, beyond a reasonable doubt, that an official willfully deprived an individual of a constitutional right, meaning that the official acted with the deliberate and specific intent to do something the law forbids. This is the highest standard of intent imposed by the law. Neither accident, mistake, fear, negligence nor bad judgment is sufficient to establish a federal criminal civil rights violation. In the present matter, the federal government could not prove beyond a reasonable doubt that the subjects acted willfully, that is with the specific intent to deprive the victim of a constitutional right. Specifically, the federal government cannot disprove the agents’ claim that they used reasonable force in an attempt to subdue and restrain a combative detainee so that he could be placed inside a transport vehicle.
The federal government is also unable to prove, beyond a reasonable doubt, that the subjects violated the federal homicide statutes within the Special Maritime and Territorial Jurisdiction of the United States. Although positional restraint of Hernandez-Rojas and electro-shocks from the taser were contributory factors in his death, there is no evidence that any of the federal agents deployed the taser or restrained Hernandez-Rojas with malice. Nor is there sufficient evidence to establish that the federal agents’ conduct violated the federal manslaughter statute, which does not require malice but requires that the federal agents committed a lawful act in an unlawful manner, or without due caution and circumspection, that might produce death. Rather, the federal agents’ restraint and deployment of the taser against Hernandez-Rojas when he was non-compliant and physically assaultive was not unlawful and, based on the evidence gathered relating to the federal agents’ use of force training, the federal agents’ action were not done without due caution and circumspection.
While the loss of life is regrettable, the facts of this matter do not support a federal prosecution. Accordingly, the investigation into this incident has been closed."
Immigration Article of the Day: The Curse of the Nation-State: Refugees, Migration, and Security in International Law by Jill I. Goldenziel
The Curse of the Nation-State: Refugees, Migration, and Security in International Law by Jill I. Goldenziel, Harvard Kennedy School; Harvard University November 1, 2015 Arizona State Law Journal, 2016
Abstract: How does international law protect migrants? For the most part, it does not. Of the millions of people who flee persecution, conflict, and poverty each year, international law protects only refugees: those who flee persecution on the basis of religion, race, nationality, political opinion, or membership in a particular social group. The 1951 Convention Relating to the Status of Refugees provides critical protections for minorities that must never be diluted. However, it is insufficient to protect the swarms of migrants landing on the shores of Europe and elsewhere, or to guide states on how to protect them while guarding their own security. This article argues that states have always revised international law regarding displaced people to protect their own security interests and changing circumstances of displacement. The time is thus ripe for the creation of an additional instrument of international law to protect the 35 million displaced people who do not meet the definition of “refugee.” To support this argument, this article presents a comprehensive history of refugees in international law, combining primary sources and original interview data to trace how states have used refugee law to protect minority rights, even as state security interests have changed refugee protection over time. In doing so, the article makes two theoretical claims that contribute to growing scholarly interest in the history of human rights law. First, the article argues that refugee law is paradigmatic human rights law, although it is often excluded from the human rights canon. Second, the article claims that refugee law predates the modern human rights regime, challenges its foundations, and extends its claims to universality.
Judge Jerry Smith
The big news is that the U.S. Court of Appeals for the Fifth Circuit late yesterday issued an opinion in Texas v. United States. The court, in a 70 page opinion by Judge Jerry Smith (and joined by Jennifer Walker Elrod), summarized its ruling as follows:
"The government appealed and moved to stay the injunction pending resolution of the merits. After extensive briefing and more than two hours of oral argument, a motions panel denied the stay after determining that the appeal was unlikely to succeed on its merits. Texas v. United States, 787 F.3d 733, 743 (5th Cir. 2015). Reviewing the district court’s order for abuse of discretion, we affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive [Administrative Procedure Act (APA)] claims; and they have satisfied the other elements required for an injunction."
In synthesizing the essence of the case, the majority stated that "[a]t its core, this case is about the Secretary[ of the Department of Homeland Security's] decision to change the immigration classification of millions of illegal aliens on a class-wide basis. *(page 70).
Judge Carolyn King dissented:
"There can be little doubt that Congress’s choices as to the level of funding for immigration enforcement have left [Department of Homeland Security (DHS)] DHS with difficult prioritization decisions. But those decisions, which are embodied in the [Deferred Action for Parental Arrivals (DAPA)] Memorandum, have been delegated to the Secretary by Congress. Because federal courts should not inject themselves into such matters of prosecutorial discretion, I would dismiss this case as non-justiciable.
Furthermore, the evidence in the record (the importance of which should not be overlooked) makes clear that the injunction cannot stand. A determination of “pretext” on the part of DHS must have a basis in concrete evidence. Of course, as appellate judges, we may not substitute our own view of the facts for that of the district court. But we must also embrace our duty to correct clear errors of fact—that is, to ensure that factual determinations are based not on conjecture, intuition, or preconception, but on evidence. Based on the record as it currently stands, the district court’s conclusion that DAPA applications will not be reviewed on a discretionary, case-by-case basis cannot withstand even the most deferential scrutiny. Today’s opinion preserves this error and, by reaching the substantive APA claim, propounds its own. I have a firm and definite conviction that a mistake has been made. That mistake has been exacerbated by the extended delay that has occurred in deciding this “expedited” appeal. There is no justification for that delay.
For Politico commentary on the ruling, click here.
Obama's November 2014 executive actions have been on hold since February. The Fifth Circuit agreed in March to hear the appeal on an "expedited" basis, and the case was argued July 10. The Fifth Circuit Circuit decision would seem to allow the Supreme Court enough time to take up the dispute this Term.
Stay tuned for analysis of the ruling.
UPDATE (10:30 PST, Nov. 10, 2015): The Obama administration has decided to seek review of the Fifth Circuit ruling in the U.S. Supreme Court.