Wednesday, May 13, 2020
By Guest Blogger Prof. Hillary B. Farber of UMass Law School
At this moment when our nation is celebrating the heroism of our immigrant work force, who in large numbers are among those the government now deems ‘essential workers’, President Trump is banning almost all migration into the U.S. The truth is immigrants have always been indispensable to our economy and this crisis amplifies that reality.
Immigrants are disproportionately represented among those who are risking their safety, their lives and the lives of their families to transport food to our tables, remove hazardous waste from our medical centers, and sanitize rooms in our hotels so medical workers can isolate from their families and continue caring for our sickest. We hail their heroism, applauding them every night, sponsoring rallies of honking cars down our streets, and filling our windows and doors with colorful rainbows and thank you signs. A local grocery worker originally from Mexico recently remarked “who would have thought that I would be considered an essential worker, literally risking my life to stock shelves at my local grocery store?”
Where were these workers a year ago, two years ago, a decade ago? Many of them were here, working as hard as they are today. We took them and their commitment to do these jobs for granted and they were nearly invisible to us. We may have noticed them behind a cart in a hotel hallway or asked them for fresher lettuce in the produce section of our local market. Could we have imagined that they would be the heroes we would cheer and the people whose unwavering work would keep us alive? We say “it takes a village” but often ignore the thousands, if not millions, of immigrant workers laboring in the supply chain for all of our basic necessities, often silently sustaining our society. Now, the COVID-19 pandemic has shone a bright light on their faces and exposed their dedication. When the busyness of our lives came to a screeching halt we finally took notice of the identities of those whose plight we otherwise ignored as the immigration debate reached a fever pitch in our country.
The worst of times often bring out the best in people. If we’re honest about who is sustaining us through this hardship, we may find a silver lining of clarity and compassion in our darkest hour. After 9/11 we said “we will never forget” and after the Boston Marathon bombing we were one as “Boston Strong”. When this pandemic is over let us remember and uphold those who have kept the shelves stocked and the hallways clean. Let us be more honest and more accepting of those who drive the engine of our economy and perform the tasks that save lives. Let us acknowledge President Trump’s actions simply play into a xenophobia that distracts from what we have learned about the power of unity in a crisis.
Friday, March 20, 2020
By guest editor UMass Law Professor Irene Scharf
An editorial in The Boston Globe in late February lamented the “mid-case deportations” that ICE has been conducting in Massachusetts and presumably elsewhere. Rather than allow the state’s criminal justice system to “do its job” by conducting trials in cases involving serious charges against immigrants already found deportable, ICE has been swooping in and deporting them. It’s unclear from the article whether the Globe editors were more concerned by the failure to provide “justice” for the crime victims, which they frequently referenced, or by the unfairness of these deportations to the accused immigration detainees.
While I of course deplore the acts these crimes involved, as an immigration lawyer and advocate I am deeply disturbed by ICE’s systematic and ongoing attacks on the Massachusetts judicial system. The Globe editors referred to their hope that the federal courts will address and contain these actions. However, given what we’ve seen recently, it is unclear whether the federal government, acting through ICE, would even abide by a federal ruling. To me, that is the most alarming issue behind these ICE moves.
There is already sufficient evidence that our judicial system has become severely compromised, that lack of adherence to the rules of precedent, and even of procedure, threaten to take down this third branch of government that helps to avoid lawlessness. If thwarting of court rulings, currently on the upswing, becomes the norm, it is a small step to “take the law into our own hands” when we have grievances against one another.
A case out of the Seventh Circuit highlights the creeping lawlessness in our judiciary. In Baez-Saenz v. Barr (947 F.3d 1033 (7th Cir. 2020)), the Court chastised the Board of Immigration Appeals (BIA), the administrative appellate court for immigration cases, for flouting its remand instructions. The case involved a Mexican national who appealed the BIA’s denial of his request for a waiver while he sought a U visa (crime victim protection) from the DHS. The Court remanded the case, but on remand, the BIA defied the Appeals Court. Following Mr. Baez-Saenz’s second appeal to the Seventh Circuit, Judge Easterbrook wrote:
“We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold (at 1035) them in contempt, with all the consequences that possibility entails. … Yet it should not be necessary to remind the Board, all of whose members are lawyers, that the “judicial Power” under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government. …. We acted under a statutory grant of authority to review the Board’s decisions. … Once we reached a conclusion, both the Constitution and the statute required the Board to implement it. … The Attorney General, the Secretary, and the Board are free to maintain … that our decision is mistaken—… But they are not free to disregard our mandate in the very case making the decision. … The Solicitor General did not ask the Supreme Court to review our decision, and the Department of Justice is bound by it.
The Attorney General’s brief … asks us to remand so that the Board may “address … whether an immigration judge may adjudicate an application for a nonimmigrant waiver … in removal proceedings.” The request is bizarre. We have already held that immigration judges do possess this power …. We directed the Board to consider whether the power has been transferred by statute, regulation, or reorganization plan to the Secretary of Homeland Security. The Board chose not to address that question, and we are hardly going to remand so that the Board can write another opinion about whether we erred in construing 8 C.F.R. sec. 1003.10(a). That’s water under the bridge. … we held that the regulation is unambiguous. An agency is entitled to reinterpret an ambiguous regulation, …, but cannot rewrite an unambiguous one through the guise of interpretation. Change requires rulemaking.
The only remaining question is what should happen next. After concluding that an administrative decision is flawed, a court of appeals normally must remand to the agency. …. Yet we have already remanded, only to be met by obduracy. The remand rule is designed to afford the agency an opportunity (at 1036) to have its say on an issue,… The Board had that opportunity and disdained it. Another remand would do little beside give the Board a free pass for its effrontery, while delaying the alien’s entitlement to a final decision. … Baez-Sanchez has waited long enough. ... The petition for review is granted, and the Board’s decision is vacated. This leaves the immigration judge’s decision in force. The Executive Branch must honor that decision, ….” (at 1037) (emphasis supplied)
More recently, a former Hawaii state judge, James Dannenberg, resigned from the Supreme Court bar because of his lost faith in the Court. In a letter to Chief Justice John Roberts, the Judge explained his decision:
“... You are doing far more – and far worse – than “calling balls and strikes.” Your are allowing the Court to become an “errand boy” for an administration that has little respect for the rule of law … It is clear to me that your Court is willfully hurtling back to the cruel days of Lochner and even Plessy. The only constitutional freedoms ultimately recognized may soon be limited to those useful to wealthy, Republican, White, straight, Christian, and armed males— and the corporations they control. This is wrong. Period. This is not America."
One question … might this actually be America?
Sunday, March 1, 2020
On Friday the 9th Circuit Court of Appeals entered a nationwide ban on the Trump Administration's practice of forcibly returning migrants to Mexico to await their asylum hearings under the administration's Migrant Protection Policies. According to the UC Hastings Center for Gender and Refugee Center, the Center along with the American Civil Liberties Union, and the Southern Poverty filed suit against the policy in 2019 and won a preliminary injunction. "In the months since (the suit was filed) nearly 60,000 asylum seekers have been left stranded in Mexico, where they have faced grave human rights abuses. Human Rights First documented over 1,000 public reports of murder, torture, rape, kidnapping, and other violent attacks against asylum seekers and migrants returned under MPP, a figure that represents only the tip of the iceberg."
“Although the ruling cannot repair the profound pain and suffering that MPP has caused over this last year, we are hopeful the United States can once again stand as a safe haven for the persecuted.”
The full opinion may be read here.
Tuesday, February 25, 2020
In an effort to prevent additional deaths of migrants doctors and others have encouraged vaccination of border migrants. But Custom and Border Patrol refused. CPB's refusal to vaccinate migrants rejected advice from the Center for Disease Control and Prevention that recommended migrants receive flu vaccinations at the earliest possible time.
According to KTAR News: On Feb. 19, a federal judge in Tucson determined that CBP facilities in southeastern Arizona violate the Constitution because the conditions are “presumptively punitive.” In fiscal year 2019, 12,030 individuals were kept longer than the 72-hour limit in that border sector.
"Noting that the migrants held in those facilities are civil detainees and not convicted criminals, Judge David Bury said conditions “are substantially worse than conditions afforded criminal detainees at the Santa Cruz County jail or other jail facilities, where detainees are medically screened by medical professionals; have a bed with cloth sheets, blankets, and pillows … have clean clothing … showers, toothbrushes and toothpaste, and warm meals.”
The organization One Hundred Angels in cooperation with the Mexican Red Cross, organized a clinic to vaccinate migrants who are waiting to enter the US but who remain on the Mexican side of the border. Willing migrants received chickenpox, measles and flu vaccinations. Vaccination of children was a priority since several have died while in US custody.
Thursday, January 9, 2020
BorderX is a project that incorporates artists from around the world in documenting crisis around the world. Artists are working at the southwest border documenting the plight of immigrants. The BorderX website says:
"The BORDERx Anthology Project has attracted artists from around the world. Argentina, Egypt, South Africa, The United Kingdom and of course the U.S.A. We are artists and writers united who are willing to stand in the face of oppression and to denounce it in words and pictures. We use comix as our medium and we have partnered with many other organizations to put the current policies on record. By diving deep into the details, we seek to bring context and depth beyond the headlines. The collected works will be assembled and published in both digital and paper volumes and are available through our crowdfunding initiative we are raising funds for the South Texas Human Rights Center who provide water stations, search and rescue as well as forensic recovery for migrants who take the treacherous journey to cross the border in search of a better life. We have also partnered with Project Amplify and Asylum Seekers Advocacy Program (ASAP) to bring sworn testimonies from migrants to the page."
Wednesday, September 4, 2019
As reported on Monday, the Trump Administration had announce in late August that it would suspend the policy of deferred deportation for undocumented immigrants who require life-saving medical treatment in the United States. The same would apply to immigrants whose family members require treatment. As reported, 127 Senators signed a letter criticizing the President's decision in addition to public outrage.
Now the Trump administration has reversed its position, at least in part. The administration announced it would review the medical deferral requests on a case by case basis. The government announced that it had not yet deported anyone who had received an August 7th letter informing applicants of the deferral's suspension. Allegedly the applications received as of August 7th will still be reviewed on their merits. But no information was given as to whether the program will be reinstated for new applicants.
Monday, September 2, 2019
Previously this blog has addressed issues of human rights in the digital age. In a recent article, Prof. Sherley Cruz addresses social justice access and biases in digital technology. Coding for Cultural Competency: Expanding Access to Justice Through Technology. Here is the abstract:
Innovations in legal technology are revolutionizing access to justice for individuals who previously had little or no ability to obtain legal assistance. This Article explores how the lack of culturally competent designs within legal technology negatively impacts diverse communities, thereby hindering the ability to expand access to justice. An examination of the underlying theories of access to justice and cultural competency illustrates why it is necessary for legal professionals and technology designers to incorporate culturally competent designs when developing legal technology. In light of ongoing changes in United States’ demographics, and the heightened need to provide access to justice given the current political climate, this Article uses the example of the Latinx community to illustrate how culture impacts the effectiveness of legal technology. Applying cross- cultural competence theory to legal technology allows for the identification of potential risks and provides a critical point of view from which to generate design principles that will increase access to justice for all.
Sunday, August 18, 2019
The US Court of Appeals for the 9th Circuit has decided the case brought against the Trump Administration for human rights violations against the immigrant children being held in detention. The lower court had found the administration in contempt of the 1997 Flores settlement which addressed specifically the treatment of migrant children. The Court of Appeals affirmed that decision. The settlement requires the administration to provide safe and sanitary conditions for the children held in detainment. You may recall that the panel was astounded at the Justice Department's argument that the Flores agreement did not mandate permitting children to sleep or allowing them to wash.
Judge Marsh Bezon authored the opinion, stating: “Assuring that children eat enough edible food, drink clean water, are housed in hygienic facilities with sanitary bathrooms, have soap and toothpaste, and are not sleep-deprived are without doubt essential to the children’s safety.” The lower court had found that the children were not receiving hot, edible or a sufficient number of meals during a given day; lacked clean drinking water, clean bedding, toothbrushes, soap and towels; and endured sleep deprivation as a result of cold temperatures, overcrowding, lack of proper bedding and constant lighting.
Thursday, June 27, 2019
Four women, all volunteers for No More Deaths, who left water and food for migrants in the summer of 2017 faced criminal trial this week. Following a three-day bench trial, the four were found guilty. The women were charged with misdemeanor crimes based upon their entering protected federal land without a permit and leaving food and water there. The Washington Post reported: "Prosecutors said they (the women) violated federal law by entering Cabeza Prieta, a protected 860,000-acre refuge, without a permit and leaving water and food there."
Of course, the motivation for the prosecution was the women's aiding migrants, but the prosecution for impermissible entry into federal land is an easier prosecutorial "win" than prosecuting for providing humanitarian aid. "Aid workers say their humanitarian efforts, motivated by a deep sense of right and wrong, have been criminalized during the Trump administration’s crackdown on illegal border crossings. Federal officials say they were simply enforcing the law. " More accurately, just following orders.
Sunday, February 17, 2019
Prof. Hillary Farber is spending her sabbatical at the Southwest Border. She sends us the first of her reflections on work with detained immigrants.
Just a bit of background: I have always thought of being a lawyer as a tool to help people. I went to law school to be a public defender and thought I would do that work for a very long time. Opportunities eventually took me in a different direction and, over the years of my teaching career, I have felt this tool becoming blunt. After this last presidential election, it became clear to me that my sabbatical was a moment in time to dive back into the fight for justice that motivated my whole legal career.
I was compelled to go where the need is great and the resources for legal assistance are scarce which led me to this fabulous organization – The Florence Immigrant Refugee and Representation Project. https://firrp.org. The Florence Project provides free legal and social services to detained adults and unaccompanied children facing removal proceedings in immigration court in Arizona. Here, smart and dedicated people are speaking truth to power, and pursuing every legal avenue to seek justice for their clients. They are on the front lines of the family separation crisis and provide legal orientations for thousands of men, women and kids in detention.
I am not an immigration lawyer, and before coming here I was not schooled in immigration law. What I often tell people is that I know how to argue to get people out of jail. I also feel very comfortable in a courtroom, and going in and out of jails and prisons to work with my clients. So there are some transferable skills but my learning curve is huge. It humbles me and reminds me daily of the path my students are on, learning the law and trying it out for the first time.
These past four weeks have exceeded my expectations. My commitment to bring humanity to this migration struggle has deepened, as has my admiration for all the people here and around the country doing this work every day. I am here bearing witness and diving in to advocate for those whose voices and stories need to be told. Whether it is the family waiting at the border in Mexico to come into the United States or the young man who heroically fled his native country from gang violence and extortion only to be detained by ICE and held in a detention facility without bond – these stories need to be told and people’s voices heard.
So I am not leaving here until my tools are sharpened and I have helped as many people as time will allow. My resolve is strong and the opportunities are abundant.
Wednesday, November 7, 2018
Sexual abuse of those detained in ICE centers is no secret. Statistics show that there were 1448 complaints of sexual assault in just over five years with 237 assaults in 2017 alone. Some of the assaults were on children. Several employees have been arrested. This with only 40% of sexual assaults in detention centers being reported by administrators.
Yet in a civil suit filed on behalf of assault victims, ICE has raised the centuries old defense that the detainee, who was assaulted when detained with her three year old son, consented to the assault. In this context, however, consent (even if it did exist) is irrelevant because in the detention setting, any sexual contact between an employee ad a detainee is a criminal offense.
In E.D. v. Sharkey a detainee filed suit because she was assaulted while detained with her three year old son. Among the defendants are those employees who stood by while the assault occurred and failed to protect E.D. The institutional defendant claims that it should not be liable to the Plaintiff because they are a detention center and not a prison or jail and therefore should not be accountable under the Prison Rape Elimination Act.
The ACLU has filed an Amicus brief in support of E. D.
Tuesday, November 6, 2018
by Prof. Dina Haynes, New England School of Law
In October of 2018, the Department of Homeland Security sent a “subpoena/summons” to an immigration attorney. The document stated: “You are requested not to disclose the existence of this summons for an indefinite period of time. The government works for, and at the behest of, the people.” The “subpoena/summons” requested the private attorney to supply “All information related to the Immigration and Customs Enforcement (ICE) memorandum with the subject title of “Litigating Domestic Violence-Based Persecution Claims Following Matter of a A-B-“ dated July 11, 2018; including, but not limited to: (1) date of receipt, (2) method of receipt, (3) source of document, and (4) contact information for the source of the document.” The document was sent by the Special Agent in Charge within the Office of Professional Responsibility at DHS. The Summons cited 19 U.S.C. § 1509, which is a section of the US Code giving authority to Customs Agents to seek records pertaining to improper import or export of goods to or from the United States. The attorney so summoned also happens to be the private attorney who has for decades compiled the daily deluge of laws, cases, regulations, memos and practice changes within government necessary for immigration lawyers to review to stay current on immigration law and policy. He is a lawyer and a journalist.
DHS appeared to be attempting to use authority conferred to it for the purpose of preventing smuggled, untaxed or counterfeit goods into the United States, to force a private attorney, who also happens to be a journalist, to provide information they sought on an internal “leak.”
Every person in the United States should take heed. This blatant misuse of the law, abuse of a position of authority, warrantless subpoenas and use of administrative “summons” to threaten private attorneys is authoritarian in nature and warns of worse erosion of rights to come. How does the Special Agent in Charge of Professional Responsibility within DHS not know that his fishing attempt vastly exceeds his authority? How does he not know that this warrantless “summons” is being gravely misused as applied? The answer is that he does know, and he doesn’t care. His superiors have consistently demonstrated growing disregard for the rule of law, and for private immigration attorneys. The Attorney General of the United States has called immigration lawyers “dirty” and stated that we work to undermine the law, when speaking before federal employees; his subordinates.
This culture of impunity, this emboldening of federal employees to make hash of the rule of law, is exceedingly troubling.
When officers of the federal government feel unfettered by constitutional restrictions placed upon them, we all lose. When lawyers are collectively maligned and undermined and threatened and called names by the “highest lawyer in the land,” the very foundations of the rule of law are destabilized. When individual lawyers are threatened with malicious prosecution or fake subpoenas by federal employees, the will of all lawyers to continue to fight on behalf of the rights of others is diminished. We are being threatened so that we will exercise prior restraint on ourselves. Our speech is being chilled. The Founding Fathers understood that those two principles were central to the effectiveness of constitutional democracy, free from the tyranny of the majority. If we continue to sit back and let federal employees act in this disgraceful manner, we will have no rule of law left when we need it the most.
Wednesday, October 31, 2018
President Trump is sending troops to the US – Mexico border. The announcement attempts to resuscitate republican candidates, and stir up his base to vote. Trump once again is focusing on immigration and immigrants as the source of all troubles for the alienated (or alienating) voter.
Part of his plan is to send 5200 troops to the Mexican border. By current estimates that is two plus soldiers for each member of the immigrant “caravan”. And what are the troops to do? Simply stand in a line so that refugees cannot pass? Not assist as children become dehydrated? Watch the travelers starve? Are trained soldiers expected to use violence if any of the migrants attempt to breach the border? What is our action plan if that should happen?
If we had a President looking for solutions, not drama, why not send the troops to Honduras where they could restore safe living conditions and people would not need to leave their home country. But it is the drama our President seeks.
Then the President announced that he will eliminate birthright citizenship by executive order. Experts cite a long line of constitutional cases that prohibit such an action. But as we have learned, we can no longer rely upon traditional avenues to protect us from radicalism.
Tuesday, July 24, 2018
Families for Freedom announced last week that ICE detainees had begun a hunger strike to protest inhuman conditions. Conditions include "nearly nonexistent medical care, inedible food, abuse from facility employees, and exorbitant commissary prices." At least 60 detainees in the Dartmouth, MA facility went on strike with Sheriff Thomas Hodgson minimizing the number of strikers and the length of the strike. Hodgson's office confirmed that they had disciplined the organizer, or as his office called him, the "ringleader" of the strike. This strike follows one held a year ago at an Oregon facility holding ICE detainees. Deplorable conditions were the focus of that strike as well.
The Bristol County MA Sheriff defended high commissary prices calling the purchases "luxury items" and defended what are increasingly high telephone charges. In the meantime, New York City has eliminated telephone charges for domestic calls for incarcerated individuals.
Wednesday, July 18, 2018
In the Matter of A-B- the government disqualified domestic violence claims as a basis of asylum except on narrow grounds. Those grounds will be near impossible for most asylum applicants to prove. The opinion demands that "An applicant seeking to establish persecution based on violent conduct of a private actor must show more than the government’s difficulty controlling private behavior. The applicant must show that the government condoned the private actions or demonstrated an inability to protect the victims." When police refuse to respond to a domestic violence call or appear at a home after abuse happened and refuse to intervene, the applicant will likely be unable to show malintent on the part of the state.
In the wake of a letter signed by family law professors to Attorney General Sessions seeking revocation of the A-B- decision, Nermeen Arastu, Janet Calvo and Julie Goldscheid, of CUNY Law School, have written an op-ed in response to Attorney General Sessions' virtual elimination of domestic violence, or any private violence for that matter, as grounds for asylum. As the authors state "survivors may not ever be able to bring their legitimate claims and will be summarily sent back to the hands of their persecutors, exposing them to life-threatening harm."
You may read the entire op-ed here.
Wednesday, June 27, 2018
A San Diego federal judge has ordered immigration officials to reunite children and parents. In addition to barring the now suspended practice of separating children from families, Judge Dana Sabraw ordered that children under five be reunited with their parents within fourteen days and that parents of children of all ages be permitted to speak with them within ten days. Further the court order requires parents subject to deportation to leave with their children.
In what will no doubt be an oft quoted sentence from his opinion, Judge Sabraw said, " The unfortunate reality is that under the present system migrant children are not accounted for with the same efficiency and accuracy as property." The administration's attitude expressed by Judge Sabraw is simultaneously arrogant as well as cavalier. Invoking property rights reminiscent of slave owners, the administration has not bothered to properly document the parental relationship of children in its custody. As Judge Sabraw noted, the Executive Order that terminated the process of separating children from parents made no mention of whether or how to reunite already separated children from the parents who brought them across the border.
"The facts set forth before the court portray reactive governance responses to address chaotic circumstance of the government's own making. They belie measured and ordered governance, which is central to the concept of due process
A status conference in the case is scheduled for July 6th.
Of note, the Plaintiffs in Ms. L; etal v. ICE were certified as a class, thus permitting the nationwide injunction. The injunction was issued on the same day that Justice Thomas opined on the validity of federal courts issuing nationwide injunctions in the case of Trump v. Hawaii. The Supreme Court refused to rule on the issue in Trump v Hawaii but the issue may not be capable of escape as the Ms. L case winds its way to that court.
Tuesday, June 26, 2018
Prof. Irene Scharf discusses today's decision on the "travel ban" case.
Today the Supreme Court ruled in the case of Trump v. Hawaii, commonly referred to as “Travel Ban 3.0.” Chief Justice Roberts, writing for a 5-4 majority, ruled that President Trump’s third and latest iteration of the travel ban does not violate either the Constitution or the Immigration and Nationality Act (INA).
The bottom line is that the ban will be fully enforced starting today. To summarize, Chief Justice Roberts said “the Proclamation is squarely within the scope of Presidential authority under the INA.” He emphasized the fact that 8 USC section 1182(f) is a “comprehensive delegation” that “exudes deference to the President in every clause.” Nor did he find the Proclamation to be inconsistent with the INA. Further, the Chief Justice wrote that the Proclamation did not violate the Establishment Clause of the Constitution, countering the plaintiff’s claims that it was “motivated not by concerns pertaining to national security but by animus towards Islam.“ He asserted that the Court’s role is not to “probe and test the justifications of immigration policies.“ Finally, because he found the proclamation to be “neutral on its face,“ the plaintiff did not demonstrate a “likelihood of success on the merits of their constitutional claim.“ In the end, the preliminary injunction granted by the District Court was reversed, and the case was remanded to that court. While the majority did not express any opinion as to the soundness of the policy, it did overrule the long-standing and deeply disturbing opinion of Korematsu v U.S., a 1944 decision in which the court permitted to stand WWII internment of U.S. citizens of Japanese descent.
Justice Kennedy concurred in the opinion, making a cautionary point in saying that, while there are “statements and actions of Government officials” that “are not subject to judicial scrutiny or intervention[,] [t]hat does not mean those officials are free to disregard the Constitution and the rights he proclaims and protects....” Justice Thomas also concurred in the opinion, adding his thoughts about additional issues with the plaintiff’s claims, especially his point that the President has inherent authority to exclude foreign nationals. He also discouraged the use of nationwide injunctions by the federal courts, questioning their validity both legally and historically.
Justice Breyer wrote the dissenting opinion, joined by Justice Kagan, addressing the establishment clause claim, specifically concerns about the “elaborate system of exemptions and waivers” in the Proclamation. He mentioned evidence from a sworn affidavit, which suggested that “waivers are not being processed in the ordinary way;“ apparently that affidavit claimed that consular officers were not being given discretion to grant waivers. Thus, the justice would have upheld the preliminary injunction while the case was being litigated. Justice Sotomayor wrote a dissenting opinion, joined by Justice Ginsberg, holding that the Proclamation violated the Establishment Clause as it was clearly motivated by an unconstitutional animus. While acknowledging that national security is “an issue of paramount public importance,“ she stated that “none of the features of the Proclamation highlighted by the majority supports the government claim the Proclamation is genuinely and primarily rooted in a legitimate national security interest. What the unrebutted evidence actually shows is that a reasonable observer would conclude, quite easily, that the primary purpose and function of the proclamation is to disfavor Islam by banning Muslims from entering the country.” In support, she cited several examples of anti-Muslim statements by the president and his staff before his inauguration as well as after. The effect of this ruling is that the ban will continue to be enforced until the Administration either changes or repeals it, giving the President considerable power over the admission of foreign nationals. On the remand back to the District Court for further litigation, the plaintiff may continue to argue against the statutory and constitutional authority for the ban. Resources concerning the case and the travel ban are varied, including the following:
Monday, June 18, 2018
As reported earlier, Federal Judge Mark Wolf of Boston is presiding over an ACLU challenge to recent ICE tactics of summarily arresting and detaining undocumented immigrants who appear at federal offices for scheduled appointments to regularize their immigration status. At issue in the case is whether ICE violated its own procedures, and the constitution, in initiating such detentions.
In a 62-page ruling requiring ICE to release two named plaintiffs from detention pending an immigration hearing, Judge Wolf began by noting that "This country was born with a declaration of universal human rights." Judge Wolf reiterated the Declaration's proclamation that "'all men are created equal, that they are endowed by their Creator with certain unalienable rights,' and that 'among these' is 'Liberty.' " And Judge Wolf opined that these fundamental protections are codified in the U.S. Constitution's 5th Amendment.
Judge Wolf did not reach the question of whether arrests of immigrants at marriage interviews is legal in general. But commenting on the extraordinary facts of the case, Judge Wolf observed:
"The United States has historically been distinguished by its dedication to treating lawfully and fairly all among us, including aliens who are in the country illegally. However, as Supreme Court Justice Louis D. Brandeis observed, in each generation we "must labor to possess that which [we] have inherited." Paul Freund, "Mr. Justice Brandeis," in On Law and Justice at 119 (1968). These cases are a reminder that Justice Brandeis was right."
Sunday, May 27, 2018
By Irene Sharf, Prof. of Law, UMass Law School, guest editor
In Federal District Court in Boston on May 22, 2018, federal agents, responding to pointed questioning by Judge Mark Wolf, claimed that they had halted their controversial practice of arresting undocumented immigrants who present themselves to government offices while in the course of applying to regularize their immigration status. The Boston ICE field office acting director, Thomas Brophy, told the judge that the practice had occurred under his predecessor, but that, in February when he took over, he eliminated it. An ICE spokesman would not clarify whether this was a local or a nationwide change in the Trump Administration’s policy targeting immigrants.
A May 22, 2018 article in the Boston Globe (Maria Cramer) Federal judges in Boston are often sharply critical of ICE tactics), highlighted the criticism to which ICE has recently been subject by Boston’s federal judges. This criticism was made, for example, after the January 2018 ICE arrests of seven people at immigration offices in Massachusetts and Rhode Island, often immediately after they completed interviews with the office that processes applications for legal residency, USCIS (U.S. Citizenship and Information Services).
In early April, the ACLU filed a lawsuit challenging these recent arrests. The case, Calderon v. Nielsen, seems to have had a significant effect that should benefit immigrants in the New England region. The case challenges the Administration’s policy of “detain and remove,” in operation in Lilian Calderon’s case. A mother of two, she was detained by ICE agents at the USCIS offices in Rhode Island, where she and her United States citizen husband had appeared for an interview to process her application for legalization through their marriage. Lilian was brought to the U.S. as a three year-old without authorization; she has been subject to deportation since her teens, when her father lost his bid for political asylum. After their in-person interview in the USCIS office, which apparently went well, ICE agents took her into federal custody, where she remained for weeks, until the ACLU’s class action lawsuit.
The ACLU launched several objections to the policy, challenging it based on constitutional grounds that it violates the due process and equal protection clauses of the United States Constitution. The case, brought against the Trump administration and ICE on behalf of the Calderons and several other area families, adds to the ongoing and often successful litigation against this Administration, whose continued attacks against immigrants have not been particularly successful to date when challenged in court.
This “detain and remove” policy pits one arm of the U.S. government, USCIS, against another arm of the government, ICE, whose officers hover outside the USCIS offices as it conducts its interviews. For people like Lilian to get legal status, she must attend an interview at the USCIS office. But, once there, President Trump’s Administration is seeing to it that some applicants are arrested and placed into custody.
This tactic is likely a poorly-veiled attempt to discourage those in legitimate marriages with U.S. citizens from applying for the benefits to which they are entitled. It is also likely that, as a result of the policy, whose continued existence is now in question, many thousands will delay filing their applications, fail to file, or fear appearing at their interviews and have their applications denied.
The ACLU’s specific charges against this policy is that it violates the law by ignoring USCIS regulations that permit applicants like Lilian to stay in the U.S. while their applications are being processed. Additionally, the challenges reflect those made against the Administration’s failed attempts to cancel the DACA program last September, when Attorney General Sessions announced its imminent end. That announcement was immediately challenged through several lawsuits, including by state attorneys general. These lawsuits have so far been notably successful. Three federal district courts (California, New York, and the District of Columbia) enjoined the Administration’s plans to terminate the program in March. The case is on review by the Ninth Circuit Court of Appeals. And, on April 24, a judge for the District Court for the District of Columbia ruled that the Trump administration must accept new DACA applications, staying his decision for 90 days to allow the DHS to explain why it was rescinding the program.
The DACA rescission challenges are based on claims of equitable estoppel, due process violations, and unequal protection, all seemingly providing inspiration for the Calderon litigation. These arguments can be used in the Calderon case, as these married couples relied on the regulatory and legal scheme of U.S. law that, once married, they could remain safely in the U.S. while their applications for legal status based were being adjudicated. Having one branch of the government “invite” applicants to come to interviews only to have another branch arrest them when the interview is over represents a complete breach of faith in the U.S. legal system.
Additionally, the ACLU’s equal protection claims reflect those raised in ongoing challenges to the President’s Travel Ban, that it was inspired by the President’s racial animus against non-“white-skinned” people. Cited reports that Trump prefers immigrants from Norway, a largely “white-skinned” nation, have been submitted, along with other proof, to establish his use of racial animus to develop these policies. The arguments have also been largely successful to date, reflected at recent U.S. Supreme Court arguments.
In the case of the Calderons and others, the government has set a trap for people who are following the law, regulations, and existing practice. While USCIS claims it did not coordinate with ICE in these arrests, each is nonetheless an arm of the same federal department, the Department of Homeland Security; the arrests are likely to be found to have originated from the same office.
Sunday, February 4, 2018
Increasingly, courts and legislatures recognize the importance of the rights to counsel in immigration cases. New York expanded to universal representation in immigration court due to its of the New York Immigrant Family Unity Project.
Vermont has a bill pending that would require appointment of counsel in any matter arising out of or relating to immigration status.
Meanwhile, in the manner of two steps forward and one back, the 9th Circuit, held that children in removal proceedings have no right to counsel. The case involved accompanied children, but the opinion denies that the child in question had a sufficient liberty interest in having counsel because of his short time in the United States. The court noted that the Immigration Court judges' more proactive involvement in the proceedings the child is protected. Apparently the Court failed to remember the Immigration Court judge who thought that a three year old was qualified to represent herself.
More on the juvenile immigration case may be found here.