Tuesday, October 31, 2006
No big surprise but Judge James Munley of the U.S. District Court for the Middle District of Pennsylvania issued a temporary restraining order against Hazleton City Council, preventing it from enforcing its Illegal Immigration Relief Act Ordinance. The measure has become a model for other U.S. towns that blame illegal immigrants for a range of social problems. The law, which had been scheduled to take effect Wednesday, would fine landlords found to be renting space to illegal aliens, close down businesses that hire them, and allow legal employees to sue the businesses for employment lost during such a shutdown. A related law also establishes English as the town's official language. The restraining order is valid until November 14. To see the TRO, click here. Download hazleton_1030_tro_decision.pdf For the CNN story, click here.
Immigrationprofs are often looking for films to show their students. This one sounds like it might fit the bill:
“Romántico” is a sympathetic portrait of Carmelo Muñiz Sánchez, an illegal Mexican immigrant living in San Francisco who, after scuffling for three years as a mariachi musician, returns home to care for his ailing mother.
I've not seen it, but the review is here.
The Washington Post (Oct. 31) reports that the U.S. Border Patrol apprehended 8 percent fewer illegal immigrants last fiscal year than the year before, reversing a two-year increase in the historically volatile benchmark, Homeland Security Secretary Michael Chertoff announced yesterday. Chertoff credited the drop of nearly 100,000 apprehensions largely to the Bush administration's strategy of deporting virtually all non-Mexican border crossers as fast as they are caught, deterring them and others in what had been the fastest-growing group of illegal immigrants. After quadrupling the previous four years, apprehensions of "other than Mexican" border crossers fell 57,144, or 35 percent, to 108,026 last year. The total number of apprehensions in the fiscal year that ended Sept. 30 was nearly 1.1 million. Click here for the full story.
It is uncertain what can be made of this latest immigration arrest data. There does not seem to be evidence that the overall undocumented immigrant population (estimated at somewhere between 11-12 million) is on the decline. Could it be that, as some studies have shown, that undocumented immigrants are coming and staying in the United States rather than moving back-and-forth as was the case before the ramping up of border enforcement?
Click here for a series of National American Media stories on immigration. Thanks to Dan Kowalski for the tip.
The Social Science Research Council recently looked at migration issues. Click here to see what the SSRC had to say. Thanks to Michael Olivas for the tip.
Monday, October 30, 2006
New Online Documentation of Human Rights Abuses Against Gay, Lesbian and HIV+ People Now Available to Help Those Seeking Political Asylum
The International Gay and Lesbian Human Rights Commission (IGLHRC) announced today the launch of a new online library that will provide support to worldwide claims for political asylum made by people who fear persecution based on sexual orientation, gender identity, or HIV/AIDS status. The online library documents human rights abuses against lesbian, gay, bisexual and transgender (LGBT) people and people living with HIV/AIDS in countries around the world. It is the most complete documentation resource of its kind in the world. The information now available online will enable asylum seekers or their legal advocates to quickly provide immigration authorities with proof of human rights abuses in their country of origin. Working in partnership with asylumlaw.org, IGLHRC's Asylum Documentation Program (ADP) has made its vast store of documentation available free and online to meet the urgent needs of thousands of asylum seekers and their attorneys. The information is available by clicking here. This country condition documentation library is organized by individual "country packets." There are 144 different country packets that chart for each country various types of documentation, which may include court decisions, human rights declarations related to sexual minorities, as well as expert opinions, newspaper articles, and reports on human right conditions for LGBT and HIV-positive people.
The banners at the meeting read "Somos America," or "We are America." Mexican and Asian immigrants there invoked the dignity of all immigrants, whether legal or not, and declared the current system for entering this country "broken."
Outside, a small group of U.S. citizens held signs of their own: "Wake up and smell the invasion," and "Honk if you want the borders secured." This showdown took place Oct. 22--not in El Paso, Texas, or Tucson, Ariz., but in the western suburb of Carol Stream. Nearly 1,500 miles from the Rio Grande, border security and undocumented immigration have emerged as defining issues in two bitterly contested congressional races in the Chicago suburbs.
Consider: A recent Chicago Tribune/WGN-TV poll found that undocumented immigration is the top concern for Republicans in the 6th and 8th Congressional Districts, a swath of suburbia that ranges from DuPage to Lake County. Click here.
Aherne, Meredith. Casenote. Granting parental asylum based on a child's refugee status. (Olowo v. Ashcroft, 368 F.3d 692, 7th Circ. 2004.) 18 Pace Int'l L. Rev. 317-42 (2006).
Coyne, Christopher J. and Peter J. Boettke. Institutions, immigration, and identity. 2 N.Y.U. J. L. & Liberty 131-156 (2006).
Read, Arthur N. Protecting worker rights in the context of immigration reform. 9 J.L. & Soc. Change 65-92 (2006).
Slot, Piet Jan and Mielle Bulterman. Harmonization of legislation on migrating EU citizens and third country nationals: towards a uniform evaluation framework? 29 Fordham Int'l L.J. 747-789 (2006).
Trehan, Sunjay. Casenote. The politicization of the Convention Against Torture: the immigration hearing of Luis Posada-Carriles and its inconsistency with the "war on terror". 37 U. Miami Inter-Am. L. Rev. 567-596 (2006).
Yoxall, Peter. Comment. The Minuteman Project, gone in a minute or here to stay? The origin, history and future of citizen activism on the United States-Mexico border. 37 U. Miami Inter-Am. L. Rev. 517-566 (2006).
Sunday, October 29, 2006
This past weekend, I had the pleasure of attending the University of Chicago Legal Symposium, held at the law school. The symposium featured a keynote speech by Julie L. Myers, the assistant secretary of homeland security for US Immigration and Customs Enforcement (ICE), on Friday afternoon. Most of the speech was unsurprising, as Ms. Myers took time to highlight the well-known and well-publicized enforcement priorities of ICE.
There was one suprise. Ms. Myers briefly noted that, as unions increasingly provide representation for undocumented workers, "we need to look at" whether these activities cross the line into criminal conduct, such as harboring. When later asked to clarify those remarks, Ms. Myers appeared to back off the statement, emphazing that it is just something that "we need to think about."
I don't think it is. In fact, I can't think of a single good reason for ICE to make the criminal prosecution of labor unions into an ICE priority, and I can think of many reasons ICE should not do so.
Undocumented workers currently face a catch-22 when it comes to wage and labor laws. Although they are technically protected by laws such as the National Labor Relations Act, decisions such as the 2002 Hoffman Plastics decision have sharply limited the degree to which such workers can actually claim remedies under these law. This creates a perverse incentive for unscrupulous employers to hire undocumented migrants and then to ignore wage and workplace protection laws. When undocumented workers try to organize to improve working conditions, the employer can engage in retaliatory firings, knowing that these workers will not be entitled to the same remedies that would be available to citizen workers.
This subvert the purpose of the National Labor Relations Act and immigration law. It actually creates incentives for abusive employers to hire the undocumented (rather than documented workers and citizens), since the cost of violating the NLRA is be cheaper for employers of undocumented workers. It also creates incentives for undocumented workers to accept low wages and poor working conditions without organizing -- after all, organizing for change can get them fired, and they won't be able to avail themselves of sufficient remedies to compensate them for their troubles.
Immigration law enforcement has further reinforced these perverse incentives. When undocumented workers make efforts to organize or to report workplace violations, employers can prevent such efforts by reporting the workers' undocumented status to ICE. If ICE conducts raids, it deports undocumented workers. On the other hand, the costs to employers in the wake of such raids are low. If employers are punished at all, it is only with mild fines. Law professors Jennifer Gordon, Mike Wishnie, Lori Nessel and others have concluded that some employers cynically rely on immigration law enforcement to frustrate laws intended to protect workers.
Now Julie Myers' remarks suggest that ICE may be thinking about a strategy that would further strengthen the hand of the most unscrupulous employers of undocumented workers at the expense of unions. But union-busting is not a good way to prevent undocumented migration. It is a good way to make it even easier than it already is for corner-cutting employers who hire undocumented workers to circumvent wage and labor laws at the expense of all employees -- citizens and noncitizens alike.
Immigrant advocacy groups are decrying an array of proposed federal measures, including application fee increases and online filing requirements, that they fear will sharply reduce the ability of some legal immigrants to become U.S. citizens. For the L.A. Times story, click here.
Ottawa has ruled out amnesty for the estimated 200,000 undocumented workers toiling in Canada's underground economy, saying it would not be fair to those who have applied legally and are waiting in line, according to a letter obtained by The Globe and Mail.
Allowing undocumented workers to stay would likely "encourage more illegal immigration," noted Linda Arseneau of Citizenship and Immigration Canada's ministerial enquiries division in an Oct. 18 letter to the Universal Workers Union. Click here.
Saturday, October 28, 2006
Click here for a video of an interesting Oct. 19, 2006 U.S. Immigration Policy Debate co-sponsored by the Federalist Society and the American Immigration Lawyers Association in Hartford, Connecticut. The debaters are Margaret Stock and Michael Cutler. Thanks to Dan Kowalski for the tip!
POPE Benedict XVI today urged European Union countries to respect the rights of immigrant communities, saying dialogue between members of different faiths was essential to avoid a rise in xenophobia.
Without referring to his speech in September when he offended Muslims by appearing to link Islam with violence, Benedict said Europe must make more effort to respect foreign customs and people's rights.
"Today the ever more numerous arrival of immigrants and the multiplication of communities of a different culture or country of origin on the same soil makes it absolutely necessary in our societies (to have) a dialogue between cultures and religions," he said. Click here.
Friday, October 27, 2006
District Court Directs Department of Homeland Security to Stop Unlawful Deportation of Foreign Nationals in Process of Applying to Adjust Their Immigration Status
On October 11, 2006, a U.S. District Court Judge in Seattle, Washington issued a temporary restraining order directing the Department of Homeland Security (DHS) to comply with a 2004 decision of the U.S. Court of Appeals for the Ninth Circuit. The order, applicable to DHS in states within the Ninth Circuit, prohibits DHS from deporting foreign nationals who entered the country unlawfully to reunite with family members, if the individuals have filed pending applications to adjust their immigration status. Aurelio Duran Gonzalez, who is married to a lawful permanent resident and has four U.S. citizen children, filed the lawsuit on September 28, 2006. Even though Gonzalez had filed an application to adjust his immigration status, he was at risk of being deported because he had entered the United States unlawfully to reunite with his family. Gonzalez is represented by the Northwest Immigrant Rights Project based in Seattle, Washington, the American Immigration Law Foundation based in Washington, D.C., and a private law firm. The court’s order will remain in place until the next hearing before the District Court on November 6, 2006.
Thanks to Cappy White for this scoop!
HAITIAN DEATH SQUAD LEADER ORDERED TO PAY $19 MILLION TO TORTURE SURVIVORS
JUDGE AWARDS DAMAGES TO THREE WOMEN FOR TORTURE AND CRIMES AGAINST HUMANITY
(NEW YORK, October 25, 2006). Emmanuel “Toto” Constant, the former leader of Haiti’s notorious death squad known as FRAPH, has been ordered to pay $15 million in punitive and $4 million in compensatory damages to three women who survived rape, other torture and attempted killing committed by paramilitary forces under his command. U.S. District Court Judge Sidney H. Stein, of the Southern District of New York, awarded the survivors a total of $19 million in damages after hearing testimony from the women and expert witnesses. The damages award was entered late yesterday.
The Court previously found Constant liable for torture, including rape, attempted extrajudicial killing, and crimes against humanity carried out as part of FRAPH’s reign of terror during the period of military rule in Haiti from 1991 to 1994. The judgment, entered August 16, 2006, marks the first judgment where someone has been held accountable for the state-sponsored campaign of rape in Haiti. In yesterday’s order, Judge Stein stated, “Though no price tag can be placed on the atrocities visited upon these plaintiffs and other innocent civilians by FRAPH, plaintiffs are indeed entitled to monetary compensation and the Court will therefore grant it. . . .”
Constant fled to the United States in December 1994. Despite the outcry from the Haitian community and human rights organizations, he lived and worked freely in New York until he was arrested in July 2006 in connection with a mortgage fraud scheme in Suffolk County, NY. He remains in jail awaiting a criminal trial on charges of grand larceny, forgery and falsifying business records.
The U.S. government moved to deport Constant in 1995. However, after he disclosed on 60 Minutes that he had been on the CIA payroll during the period when FRAPH was formed, he was released from detention and has been allowed to remain in the U.S.
The lawsuit was filed in December 2004 by the Center for Justice & Accountability (CJA) and the Center for Constitutional Rights (CCR) on behalf of the three women, all survivors of torture at the hands of FRAPH. Sonnenschein Nath & Rosenthal LLP acted as pro bono co-counsel in this matter. Due to an on-going fear of reprisals, the plaintiffs had to submit their testimony anonymously. Two of the women testified in open court behind a screen.
During the hearing, Trinity University professor Robert Maguire testified that FRAPH worked closely with the Haitian Armed Forces and did the military’s “dirty work” in committing widespread human rights abuses and that FRAPH was “the muscle.” Ivor Samson of Sonnenschein Nath & Rosenthal LLP argued in his closing that in addition to compensatory damages, the court should also award punitive damages to punish Constant for his wanton, oppressive and malicious actions. A punitive damages award would send a message from the international community that Constant’s conduct will not be tolerated, and that U.S. courts, through laws such as the Alien Tort Statue and the Torture Victim Protection Act, can play an important role in discouraging and deterring future abuses.
Judge Stein agreed, finding that “Constant’s conduct was clearly malicious. As commander of FRAPH, Constant founded and oversaw an organization that was dedicated principally towards terrorizing and torturing political opponents of the military regime. His direction – or at a minimum, approval – of FRAPH’s state-backed campaign of violence constitutes an inexcusable violation of international law and merits a stiff punishment.”
Upon hearing the ruling, one of the plaintiffs stated, “Although this case is about justice, not money, I am very pleased that the court has held Toto Constant responsible for what happened to us. This is a victory for all the Haitian people.”
CJA’s lead attorney on the case, Moira Feeney, commented, “Yesterday’s ruling is a momentous step for accountability in Haiti. I hope that this case against Toto Constant will lead to other prosecutions and will assist the Haitian government in bringing other human rights abusers to justice.”
"Judge Stein's ruling on the monetary damages to be awarded to our clients is a terrific victory for the rule of law," says Ivor Samson, Partner and Head of Sonnenschein Nath & Rosenthal LLP's San Francisco Litigation Practice. "While there is no price that can truly be put on our clients suffering, it is wonderful that they have had their day in court."
Added Jennie Green, Senior Attorney at CCR, "In holding that rape is a form of torture, this decision is an important addition to the body of law prohibiting sexual violence. The courageous women who brought this case have sent a message that torturers cannot live freely in the United States and will be held accountable. We also wish to thank all of the members of the Haitian community, especially in New York, who fought so hard over the years, often endangering their own security, to hold Constant accountable."
The Center for Justice and Accountability is a San Francisco based human rights organization dedicated to ending torture and other severe human rights abuses through litigation, education and outreach.
For additional information about the case, please see CJA’s website: www.cja.org.
DNA testing has emerged as a powerful and sometimes controversial tool for U.S. residents seeking to help overseas relatives enter the country legally.
The tests have been invaluable for thousands of citizens or permanent residents who want to sponsor relatives but lack birth certificates or other documents to prove the family relationship. But some immigration lawyers worry that U.S. authorities are increasingly requiring DNA tests even when the paperwork is in order -- adding substantial costs and delays to an arduous process. "What's troubling is that it seems like the availability of DNA testing is leading to a greater level of mistrust of identity documents that otherwise would have been readily accepted," said Alison Brown, a lawyer based in Silver Spring. Click here.
Thursday, October 26, 2006
The November 2006 Issue of the Texas Monthly has an article entitled "The Desert of the Dead" by Pamela Coloff reports that undocumented immigrants are dying in record numbers along a desolate stretch of south Texas scrubland. For the ranchers and border patrol agents who find them, it’s a nightmare without end. Click here for the story.
President Bush signed a bill Thursday authorizing 700 miles of new fencing along the U.S.-Mexico border, hoping to give Republican candidates a pre-election platform for asserting they're tough on illegal immigration. For the President's comments at the signing ceremony click here.
The Grits for Breakfast Blog asks a very good question: Does anybody know specifications for the new border "fence"?
Professor Michael Olivas (Houston), seen smiling below (before the signing), has commentary on the Jurist on the fence. here is the punch line: "As with any other such complex issue, a one-sided, enforcement-only measure cannot work, and these policymakers and elected officials know better. Shame on them." Click here for the full commentary.
Immigration will be highlighted again as an issue for the midterm election campaigns today when President George W. Bush signs the Secure Fence Act, but its effectiveness as a winning issue for Republican candidates remains unproven, according to analysts and polls.
The new law, which calls for the construction of a 700-mile fence along the Mexican border, was tailor-made for the election season in last month's session of Congress by the House GOP leadership.
House Speaker Dennis Hastert (R-Ill.) yesterday used the signing to attack Democrats for voting against the fence act, accusing them of wanting to "leave the borders open" and to "grant amnesty" to the millions of illegal immigrants here. Click here.
His clandestine existence came to an end Wednesday, when federal authorities announced that they had arrested him as an illegal immigrant who was a human rights violator. The Immigration and Customs Enforcement agency said Guevara Cerritos was one of nine Salvadoran officers and soldiers implicated in one of the most notorious massacres in El Salvador's history: the 1989 death squad murders of six Jesuit priests whom some in the army viewed as subversives. Click here for the L.A. Times story. Dan Kowalski's blogs on the arrest at here.