Human Rights at Home Blog

The Loss of Kindness: A Human Rights Backlash

As discussed by both Martha Davis and JoAnn Kamuf Ward earlier, countries are struggling with the refugee crisis.  But U.S. citizens have responded poorly.  While the administration offered of aid by way of admitting Syrian refugees, many individuals  in the U.S. responded to that proposal with unkindness.  It appears that many Americans lack the fundamental empathy necessary to care for those who struggle. 

While some of the anti-immigrant, anti-Muslim resolve may be based in fear, that does not account for all of the immigration backlash.  Much anti-immigrant sentiment originated long before current events.  Anti-immigrant hatred pre-dates both the Syrian migration and the Paris attacks.  

Playing off of the poverty and under-education and the consequent limited opportunities of many of their constituents, along with the arrogance and narcissism of some wealthy, Donald Trump and Ben Carson revel in the chaos that erupts after their increasingly aggressive attacks on those who seek safety and a better life in the United States.  But the politics of exclusion are not new.  The U.S. has turned away those desperate to escape brutality before.  The current situation reminds me of U.S. refusal to accept European Jewish refugees escaping Hitler's scourge who arrived at our shores on the U.S.S. St. Louis. That shame of that particular act of cruelty has not diminished with time.  In the current instance, however, the state is not the culprit. But others who seek power are. 

As JoAnn Kamuf Ward reminded us, we can do better.  We have a chance for a do over.  But so far many Americans refuse to consider, let alone learn from our historical regrets.  Once again, I fear that historians will record us as turning our backs on those who are at risk of dying at the hands of their governments.  All because some who seek power lack both the courage and dedication necessary to seek the common good. 

Judge Gee Enters Her Final Order

In two earlier posts, we reported on the Texas case where plaintiffs sought the release of children and their mothers from immigrant detention centers. After issuing her initial order, Judge Gee gave the Obama Administration an opportunity to  respond as to whether it would comply with the terms of the Flores settlement and release mothers and their young children. The Administration responded that it planned no change in its current policy.

On Friday, Judge Gee entered her order.  She ordered the release of immigrant children held at the detention centers.  More than 1800 mothers and children are held in three detention centers in both Texas and Pennsylvania.  The Los Angeles-based Center for Human Rights and Constitutional Law said that thousands of innocent children have suffered severe psychological and sometimes physical harm during their over year-long detention. 

The government has until October 23rd to comply with the order.

One basis for the Plaintiffs' claims was that the detention centers are run by private corporations, not the government, as called for in the Flores settlement.  While it is noted that the Texas centers have gyms, schools and other amenities, a prior post reported that the centers are often very cold and the women and children are provided only one aluminum blanket each, which is inadequate to keep them warm.  

The administration has not yet announced if it will appeal Judge Gee's decision.

 

 

Obama Administration Continues Mistakes on Immigration

Guest writer Irene Scharf  writes on the Obama Administration's response to release of women and children from the immigrant detention centers:

The recent decision by U.S. District Judge Dolly Gee condemning the government’s mass incarceration of refugee families, specifically mothers and children seeking asylum in the U.S., reminds us that the Obama Administration continues to maintain ill-advised positions with regard to the treatment of immigrants in this country.

 The Administration’s disappointing response to Judge Gee’s decision is to continue supporting the incarceration of refugee women and children who have fled violence and persecution in their home countries.  The decision has been denounced by several organizations with expertise in this area, including the Center for Gender and Refugee Studies and the national American Immigration Law Association.

 The Center for Gender and Refugee Studies (CGRS), which has called for an end to mass family incarceration, notes that the “ruling correctly found that incarcerating children with their mothers violates the Department of Homeland Security’s (DHS) obligations under the 1997 Flores v. Reno settlement agreement, which governs the custody and treatment of children by DHS. That agreement … requires release of children along with their mothers unless the families pose a flight risk or danger.”  The decision enumerated some of the harms caused by confinement of children, including “‘long-lasting psychological, developmental, and physical harm” as well as impeded “access to legal representation, critical for asylum seekers navigating our complex system of immigration laws.”

 The government’s insensitivity to the rights of immigrants, particularly children, is not new.  In  1988,  in an article I co-authored, What Process is Due?  Unaccompanied Minors' Rights to Deportation Hearings, we examined the rights abuses to which unaccompanied immigrant children were subject by the legacy Immigration and Nationality Service. During that time, prior to the institution of protections, children entering without their parents were wrongfully pressured to waive their rights to deportation hearings, even when they had asylum claims. The administration's ongoing support for detention is reactionary by perpetuating the abuses the Flores settlement was intended to end.

 A New York Times article on the subject notes that

“Judge Gee … found that migrant children had been held in ‘widespread deplorable conditions’ in Border Patrol stations after they were first caught, and she said the authorities had ‘wholly failed’ to provide the ‘safe and sanitary’ conditions required for children even in temporary cells.” (Julie Preston, July 26, 2015).  The CGRS reminds us that  “[t]he operation of inhumane family detention facilities violates the rights of refugee families and contravenes our cherished national commitments to liberty, due process, and justice.”

As of June 30, about 2,600 women and children were held in the three incarceration centers, according to government officials.

 

 

A Step Closer to Equal Citizenship -- Morales-Santana v. Lynch

On July 8, in Morales-Santana v. Lynch, the Second Circuit Court of Appeals struck down a U.S. citizenship law requiring that citizen fathers comply with more stringent residency requirements than citizen mothers in order to transmit citizenship to their out of wedlock foreign born children.  This differential sex-based treatment, the court said, violated the equal protection clause of the 5th amendment. 

In 2008, the 9th Circuit Court of Appeals considered the same issue U.S. v. Flores-Villar, and upheld the statute.  On appeal, the U.S. Supreme Court issued a one-sentence ruling affirming the 9th circuit decision based on a 4-4 vote; Justice Kagan was recused from that case because of her involvement as Solicitor General.

With the 2d circuit's decision in Morales-Santana, there is now a split in the circuits.  But while Kagan would not likely be recused from Morales-Santana, vastly increasing the likelihood that the decision would be affirmed on appeal, the current administration may simply accept the ruling and forgo further review.

The law at issue is one part of a broader sex-based US citizenship law that can be traced to a deep history of stereotypes regarding parental responsibilities and women's supposed lesser capacities to operate as full citizens.  Another sex-based aspect of the law -- regarding paternity establishment -- was upheld by the US Supreme Court in Nguyen v. INS.   Similar sex-based conditions on citizenship transmission are imposed in dozens of countries, and Equality NOW is leading global advocacy efforts to equalize the laws through the courts and using international pressure.

The Morales-Santana decision is a small but decisive step toward such equal citizenship.  Exercising intermediate scrutiny, the Second Circuit rejects the government's arguments that sex-based residency requirements are needed to avoid children's statelessness, or to ensure ties between the child and the parent.  Further, the court "equalizes up," extending the more generous benefits to fathers rather than holding mothers to more stringent residency requirements.  

In recent decades, many U.S. lawyers, including this author, have challenged aspects of these sex-based laws, with only minimal success.  But perhaps the tide has turned.  Kudos to the Stephen Broome and his colleagues at Quinn Emanuel Urquhart & Sullivan, along with the many lawyers who contributed to developing the arguments in this case, particularly Professor Kristin Collins of Boston University, the historian whose account of the origins of this law was cited by the court.  As a result of this decision, Morales-Santana is deemed a citizen at birth based on his father's residency, and is no longer subject to detention or deportation. 

Immigrant Workers Challenge the Legacy of Hoffman Plastics Before the IACHR

by guest authors Professor Sarah Paoletti (Penn) and Rebecca Smith (National Employment Law Project)

On November 1, 2006, Leopoldo Zumaya and Francisco Berumen Lizalde filed a petition before the Inter-American Commission on Human Rights arguing that the US Supreme Court’s 2002 decision in Hoffman Plastic Compounds, Inc. v. NLRB and its progeny directly and indirectly resulted in denial of equal access to the courts and equal remedies for their on-the-job injuries, in violation of international law. More than eight years later, Mr. Zumaya and Mr. Lizalde finally had their day in court – a hearing on the merits, held Monday, March 16^th, before the Inter-American Commission.   Submissions in the case are available here.

Mr. Zumaya and Mr. Lizalde were among the approximately 8 million or more undocumented workers in the US.  Laboring in notoriously dangerous jobs, they both had the grave misfortune of being injured on the job.  While the applicable workers’ compensation laws in the states where they were injured do not facially discriminate on the basis of immigration status, a chasm exists between the rights on paper and reality. Following the Supreme Court decision in Hoffman Plastic, 535 U.S. 137 (2002), the US legal system allows immigration enforcement to trump a workers’ rights to a full, equal and effective remedy, and condones and in some cases facilitates discrimination against workers, solely on the basis of immigration status.

 Shortly after Mr. Zumaya fell, and when it became apparent he would not be able to return to his original job, he was fired and kicked out of his employer-provided housing.  He stayed with a friend while his lawyer helped him pursue his claims for workers compensation.  Unfortunately, due to a Pennsylvania Supreme Court decision, Reinforced Earth Co. v. WCAB, 810 A.2d 99 (Pa. 2002), that effectively denied wage loss benefits to undocumented workers with permanent partial disability, he was forced to settle his claim for nearly one-third of what a US citizen worker could have obtained. 

 Mr. Lizalde was not just denied access to a full remedy under the law; he was criminally prosecuted, seemingly in retaliation for his on-the-job injury.  Shortly after an operation on his injured hand, Mr. Lizalde received a call from the insurance company inquiring into his immigration status.  After that call – and just before his scheduled appointment for his workers’ compensation impairment rating evaluation -- he was arrested at his home by immigration authorities and put in jail, leaving his wife and US citizen daughter without their family’s sole provider.  He was criminally prosecuted for document fraud by an Assistant US Attorney who had publically stated that undocumented workers filing for workers compensation could find themselves prosecuted and facing up to a year or more in jail.  Knowing that he could not support his family from jail, he pled guilty and was deported. Shortly after his deportation, Mr. Lizalde’s workers’ compensation attorney filed for workers compensation and subsequently received a call from the US attorney who had prosecuted Mr. Lizalde, asking whether Mr. Lizalde had “illegally” reentered, effectively serving as a warning against continuing to pursue relief.

The petitioners’ experience is not unique. In many jurisdictions, unauthorized workers are denied full access to compensation for work-related injuries.  In others, they may not be accorded full remedies for discrimination on the job.  And everywhere in the US, unauthorized workers fired for exercising their fundamental freedom of association at work receive no compensation whatsoever.     

The denial of certain remedies for unauthorized workers has had other effects. When workers have the temerity to file a complaint for abuses suffered on the job, many employers will aggressively try to force them to reveal their status in legal proceedings, and some judges have so ordered. Incidents of actual retaliation, and workers’ legitimate fear of retaliation, have resulted in a climate where the rights of undocumented workers to unionize, to be compensated for an injury, and to be free from abuse and discrimination in the workplace are routinely abused.

 There have been some governmental efforts to protect unauthorized workers, at least from retaliation.  Some workers are able to receive visas or prosecutorial discretion as victims of workplace crimes, and have been able to ward off deportation by virtue of their involvement in labor disputes.  But these remedies are not widely available, and workers continue to face both legal and practical limitations on the exercise of their labor rights. 

 In the IACHR case, Petitioners seek recognition that their rights were violated, remedial measures and reentry into the US to pursue their compensation claims.  In addition, they ask that national laws, policies and practices be amended to ensure that all workplace protections are applied in a nondiscriminatory manner, and that comprehensive legislation be enacted to correct the US Supreme Court’s decision in Hoffman Plastic. 

 In addition to these measures, there are immediate administrative reforms that would move the US closer to the rule that " the migratory status of a person can never be a justification for depriving him of the enjoyment and exercise of his human rights, including those related to employment." For example, the US can: 1) take steps to ensure that all undocumented workers in the midst of legitimate labor disputes can claim the right to remain in the US and work; 2) strengthen existing policies that prevent employers from using a workers’ immigration status as a weapon in labor disputes; and 3) educate and instruct courts and other officials on the limits and applicability of the Hoffman decision, prohibit judicial and agency inquiries into immigration status, and work with state officials to ensure that state laws are in compliance with human rights norms.

 While Mr. Lizalde and Mr. Zumaya were not able to attend the DC hearing in person, they eagerly await the outcome, and a recognition from the Commission that their rights were violated.  They are optimistic that changes to US law and policy will follow to ensure that full rights and remedies are available to the approximately 8 million unauthorized workers who make enormous daily contributions to our economy and society.