Tuesday, April 27, 2021
By Emily Horsford, 3L and Student Attorney with the Human Rights at Home Litigation Clinic at St. Louis University School of Law
Labor trafficking is modern-day slavery. People, often immigrants, are forced to perform work through the use of force or fraud. Victims are kept enslaved through violence, threats and coercion. This is an ongoing issue in our world today.
Mario said goodbye to his wife and daughters and began the long, slow walk to freedom. Thirty-three days later, he crossed the border into the United States of America—the land of the free. He came here because economic opportunities in his native country of Guatemala are nonexistent. He came here because America is the land of opportunity; a place where anyone who works hard can succeed. He came here because America promises a refuge for those who yearn to breathe free, for the homeless, for the tempest-tossed. He came here because, to the world, America means freedom.
For Mario, America did not live up to her promises. After several years of transient living around the country, Mario came to St. Louis, Missouri, lured by the promise of a job in construction that included housing. He worked hard. He did good work. He didn’t complain. For three months, Mario worked despite never being paid for his efforts. When his co-workers pressed their boss, he threatened to call the police. Scared of that threat because of their illegal status, the men continued to work for free, once for 23 hours straight. Mario kept his head down and did what he knew how to do: he worked hard.
Then, just a week before Thanksgiving, the boss gathered the mostly Latin American workers together and told them they were fired and evicted from the job-sponsored housing. Mario had nowhere to go. He was still owed thousands of dollars for all of his hard work. Wasn’t this America, the place where you worked hard and were rewarded with success? In confusion, Mario put all his belongings into a storage locker and sought help from a church. The church directed him to an attorney who could help him file a lawsuit to attempt to recover some of his unpaid wages. The case is ongoing.
In the meantime, Mario lives in an apartment with another of the fired workers, Julian, and Julian’s wife and three children. Without a job bringing in any money, Mario lost all of his belongings when he couldn’t pay the storage unit fees. Work has been uncertain and sporadic. Mario hopes the lawsuit will resolve in his favor, giving him some of his wages from the many months of work he did. In the meantime, he waits.
Mario’s story is, unfortunately, not unique. There are thousands of immigrants trafficked each year in America. They are forced to work without pay or in dangerous conditions and when they complain, they are threatened. Fearful of their legal status being discovered, confused about their rights, hesitant to make trouble, they suffer in silence. This is modern-day slavery and it must be stopped. That leads us to the question: What can be done?
In the long term, America needs a comprehensive overhaul of its immigration laws. With partisan gridlock, that may not occur for quite some time but that doesn’t mean all is lost. More immediate solutions are available. President Joe Biden campaigned on reducing trafficking in the United States. We must hold him to those promises. More support should be given to victims’ rights groups including assistance in paths to citizenship.
In 2000, the Victims of Trafficking and Violence Protection Act was passed, creating the T Visa, a visa designed to protect victims of trafficking. Twenty-plus years later, this visa is under-utilized. An emphasis must be placed on helping trafficking victims apply for this visa so they can stay in America and help prosecute their abusers. By cracking down on those who utilize enforced labor, our government can help victims of trafficking move forward in their lives. Then, aid organizations can step in and provide assistance for these victims to become citizens and productive members of American society.
Those who exploit workers must be prosecuted to the full extent of the law and used as an example of the pain and punishment awaiting any who might be considering using trafficked labor. Americans must show the world that we have banished slavery to the history books and it is not tolerated by our citizens today.
For those inclined, there are numerous organizations dedicated to helping trafficking victims that can use your financial support: https://castla.nationbuilder.com/donate; https://donate.polarisproject.org/page/54176/donate/1
Wednesday, March 17, 2021
New Article: Family in the Balance: Barton v. Barr and the Systematic Violation of the Right to Family Life in U.S. Immigration Enforcement
David Baluarte, Family in the Balance: Barton v. Barr and the Systematic Violation of the Right to Family Life in U.S. Immigration Enforcement, 27 Wm. & Mary J. Women & L. 33 (2020). Abstract below.
The United States systematically violates the international human right to family life in its system of removal of noncitizens. Cancellation of removal provides a means for noncitizens to challenge their removal based on family ties in the United States, but Congress has placed draconian limits on the discretion of immigration courts to cancel removal where noncitizens have committed certain crimes. The recently issued U.S. Supreme Court decision in Barton v. Barr illustrates the troubling trend of affording less discretion for immigration courts to balance family life in removal decisions that involve underlying criminal conduct. At issue was the “stop-time rule” for measuring the requisite seven years of continuous residence for LPR cancellation of removal. A sharply divided court read the relevant statute very differently, and a five-justice majority interpreted the stop-time rule to further limit the discretion of immigration judges to consider noncitizens’ family ties as a defense against removal. However, modern international law doctrine suggests that customary international law is the law of the United States and should be applied to resolve questions of statutory meaning under the Charming Betsy rule of statutory interpretation. This Article lays plain the systematic nature of the violations of the human right to family life in the U.S. system of removal and argues that the U.S. Supreme Court erred when it failed to mitigate this harm in Barton v. Barr.
Tuesday, December 8, 2020
Dreamers have been specific pawns in the Administration's anti-immigrant efforts. The status of DACA youth has been a pawn since immigration "negotiations" began early in the Trump presidency. When Congress refused to cede to Trump's demands, then the administration took action to strip the Dreamers of protections afforded them by the prior administration. The Dreamers are US residents who came to the United States as children. To deport this population means sending these young people to a country of which they have no memory of the country where they were born, and in many cases do not speak the language.
Finally, on December 4, 2020, Brooklyn Federal Judge Nicholas Garaufis, ordered the government to immediately accept applications from Dreamers for work permits. This restores Obama Era protections. Let's hope that the Biden administration fast-tracks Dreamers' citizenship
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.
Monday, February 17, 2020
Writing in The Hill, Dree K. Collopy(adjunct professor at American University's Washington College of Law) reminds us of the promises we made to children under the Declaration of the Rights of the Child, adopted by the UN sixty years ago. " Among other rights, children must be given the means for normal development; hungry children must be fed; sick children must be nursed; orphaned children must be sheltered; children must be put in a position to earn a livelihood; children must not be exploited; children must be the first to receive relief in times of distress. Children in need must be helped. "
Collopy notes that thirty years later the UN adopted the Convention on the Rights of the Child. The best interest of the child standard was adopted at that time. The author notes that despite these commitments today we have the highest rates of displaced children, estimated to be over 35 million. Noting the US maltreatment of refugee children the author notes "As families and children have fled to the United States in search of safety, they have been denied universally recognized rights, and the U.S. government is erecting every potential barrier to keep them from accessing protection."
To read the full op-ed click here.
Monday, September 30, 2019
Judge Dolly Gee of Los Angeles blocked permanently the Trump administration's plan to detain children indefinitely. The administration's proposal, which the judge referred to as "Kafkaesque" in parts, would violate the Flores agreement. Under Flores, children are to be released within twenty days of the initial detainment. The judge ruled that only Congress can change the terms of the Flores Agreement.
The New York Times reported "Administration officials said that the effort to allow families to be detained indefinitely was an attempt to avoid having to either separate families or release them while they waited for their cases to be heard. " Opponents say that the administration's proposal is part of a plan to stop immigration by separating children and treating them cruelly.
This policy has been unsuccessful to date and has done nothing but cause anguish among families and create a generation of children who are traumatized by the loss of their parents and kept in cages that do not permit any significant play and deprive the children of the sensory comforts they need to feel safe and to flourish.
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.
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.
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.
Thursday, August 2, 2018
The 7th Circuit Court of Appeals ruled this week in favor of Chicago ordering that the federal government cannot withold funding from cities that refuse to cooperate with the adminstration on enforcement of federal immigration laws. The ban is intended to be national in scope. The lawsuit was filed after Attorney General Sessions announced that cities refusing to cooperate in immigration enforcement would not be eligable for certain DOJ grants.
Justice demands included uncontrolled access to jails and 24 hour notice if an individual wanted for immigration violations is to be released.
The injuction is temporary and was issued on separation of powers grounds. The full order may be read 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.
Wednesday, May 23, 2018
The separation of families at our borders is horrific and inflicts multiple traumas on already traumatized people. Even more distressing is the abuse of unaccompanied minors. Many find the topic too distressing to discuss. But the abuse of unaccompanied minors has been examined by the University of Chicago's International Human Rights Clinic along with the ACLU's Border Litigation Project. The partners have issued a report entitled Neglect and Abuse by Unaccompanied Minors by US Customs and Border Protection.
Documenting both abuse of children, ages 5 to 17, and the failure of authorities to investigate complaints, a partial findings are: 25% of the children reported physical and sexual abuse; physical abuse included the use of stress positions, as well as beatings by Border Patrol Agents. Have reported verbal abuse including death threats. Eighty percent reported inadequate food and water.
The report documents many additional indignities including unsanitary conditions that place the minors in holding areas filled with conditions dangerous to their health, such as overflowing sewerage. While the report is disturbing to read, the provided information and the exposure of the brutal treatment of children is critical if there is to be any hope in creating change. Further information can be obtained at the ACLU website.
Kudos to Chicago's IHR clinic students.
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.
Sunday, June 18, 2017
On June 12, a unanimous three judge panel of the United States Court of Appeals for the Ninth Circuit declined to reinstate Trump’s revised executive order seeking a 90-day travel ban for nationals from six predominantly Muslim countries. It was the second appeals court to do so.
The administration has already appealed a decision issued last month by the Fourth Circuit to the Supreme Court. The Fourth Circuit’s decision relied on the First Amendment’s Establishment Clause, finding that the president’s action “speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.”
In contrast, the Ninth Circuit relied on statutory grounds, not reaching Constitutional arguments. “We need not, and do not, reach the Establishment Clause claim to resolve this appeal,” the court opined. Contrary to Trump’s presumption of untrammeled authority, the judges ruled that “Immigration, even for the President, is not a one-person show…National Security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power.” Trump, they found, exceeded his authority, because his justification for the ban was inadequate.
“The Order does not tie these nationals in any way to terrorist organizations within the six designated countries,” the panel wrote. “It does not identify these nationals as contributors to active conflict or as those responsible for insecure country conditions. It does not provide any link between an individual’s nationality and their propensity to commit terrorism or their inherent dangerousness.” Accordingly, the order “does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality.”
The judges cited a June 5 tweet from Trump, in which he said "That's right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won't help us protect our people!" The panel cited White House press secretary Sean Spicer's confirmation that the President's tweets are "considered official statements by the President of the United States."
As former Justice Department spokesman Matthew Miller told the Washington Post, Trump has “lost on statutory grounds. He’s lost on constitutional grounds. He’s lost in the east, the west, and even on an island floating in the Pacific. He’s lost on his first order, and he’s lost on his second ‘politically-correct, watered down’ version.” And he concludes that “For a president who promised we’d get tired of all of his winning, his travel ban has been a catastrophe from day one.”
Spicer remained unbowed. “Frankly, I think any lawyer worth their salt 100 percent agrees that the president is fully within his rights and his responsibilities to do what is necessary to protect the country,” he said. “I think we can all attest that these are very dangerous
times and we need every available tool at our disposal to prevent terrorists from entering the United States.”
Despite the use of his tweet in the Ninth Circuit’s decision-making, Trump doubled down on the outbursts that hurt his case, saying on Twitter, “Well, as predicted, the 9th Circuit did it again - Ruled against the TRAVEL BAN at such a dangerous time in the history of our country. S.C.” His words may come back to haunt him, again.
Monday, June 12, 2017
On Monday, June 12, the Supreme Court released its opinion in Sessions v. Morales-Santana, an equal protection challenge to sex-based distinctions in citizenship law -- specifically, differential requirements regarding physical presence in the US of the citizen parents seeking to transmit citizenship to an out of wedlock, foreign born child. The 6-2 opinion by Justice Ginsburg striking down the sex-based distinctions runs through the full litany of the Court's sex discrimination cases, most of which the Justice had a hand in one way or another -- from Reed v. Reed, where she argued as amicus, to U.S. v. Virginia, which she wrote as a justice. Justices Thomas and Alito dissented, arguing that the Court should not have reached the merits.
Importantly for US human rights activists, the opinion took human rights law seriously. For example, the government had argued that sex-based distinctions in US citizenship law were needed in order to avoid statelessness for some mothers. The opinion rejects that rationale, citing at length the campaign of the UN High Commissioner on Refugees to address sex-discrimination in nationality laws as a component of its campaign against statelessness: