Friday, April 30, 2010
Jaya Ramji-Nogales on IntLawGrrls writes thoughtfully about how the dysfunctional American immigration system adversely affects migrants from Central America and discusses a new Amnesty International report about migrants traveling through Mexico.
One week has passed since Arizona Governor Jan Brewer signed Senate Bill 1070 into law. Still, tensions continue to heighten over the law. The early suits challenging Senate Bill 1070 have been filed, with the first one brought by a local police officer. One cannot avoid hearing about the Arizona law on the television and radio news as well as in the newspapers and the net. Indeed, Larry King Live hosted a debate last night over the constitutionality of the law between New Mexico Governor Bill Richardson and former United States Attorney General Alberto Gonzalez. The Inter-American Commission for Human Rights (IACHR) has expressed deep concern over Arizona's new immigration law. CNN reports that college students are speaking out against the new law. May Day marches for immigrant rights likely will squarely confront the new Arizona law.
The furor over Arizona Senate Bill 1070 is not going away quickly.
From Daisy Hernandez of Colorlines Magazine:
The New York Times published an op-ed [Wednesday] by Mr. Kris. W. Kobach, who helped write the new anti-immigrant law in Arizona.
Mr. Kobach was helpful enough to take the main arguments being made against the law and share his interpretations. We can only assume that his points will form the basis for legal arguments made when the lawsuits hit the courts.
So let’s take a look at each of Mr. Kobach’s legal defenses of the Arizona law:
Arizona just passed a state law that complements the federal one. According to federal law, all immigrants have to carry their papeles. Mr. Kobach is right on this. The federal law is flawed. It creates a two-tier system of humanity in this country—citizens and noncitizens—and does nothing to acknowledge that capital is allowed to move across borders while common, decent people are harassed, demonized and locked up like animals. Where Arizona had an opportunity to say, “Let’s make state laws that are decent and humane and show those feds how wrong they are,” state officials said, “Hey that flawed federal law is a great idea. The more hate the merrier.”
The courts have said reasonable suspicion is ok. Mr. Kobach points out that he didn’t make up the notion of reasonable suspicion and that courts have given cops the go ahead in this matter. That’s right. Just ask any Black man in New Jersey driving a Mercedes and they’ll be happy to tell you how “reasonable suspicion” works in the real world. Of course, reasonable suspicion has been used to explain why Arab men are more likely to get stopped at airports. “Well, he was brown, his name is Hussein, he seemed unhappy when I asked him questions, and oh, yeah he was at the airport…”
Cops won’t be able to consider race as the only factor. Mr. Kobach argues that the new law says police can’t ask you for ID just because you have brown skin. But they can ask you for ID because you have brown skin and are driving a beat up-Buick near a spot where daylaborers are picked up for work. Mr. Kobach’s argument is eerily similar to the old one that says, “We’re not denying you the right to vote because you’re Black—just because you’re Black and you can’t recite the entire Constitution.”
A cop has to assume you’re undocumented if you don’t have a drivers’ license in your wallet. Arizona doesn’t require locals to walk, breathe and text with a driver’s license in their wallet. But, notes Mr. Kobach, if you can’t produce that ID, a cop is safe to presume that you’re undocumented. Why? Because, Mr. Kobach tells us, Arizona gives driver’s licenses to citizens and immigrants with legal status. Huh? Yes, his argument doesn’t make any sense. The reality is that in the new Arizona a Latino teenager forgets his wallet at home, gets pulled over by a cop, can’t remember his social security number, and ends up being handed over to immigration officials.
As long as Congress has said otherwise, a state can do whatever it wants. Mr. Kobach is right here. Immigration is a federal matter but states can pretty much do what they want as long as Congress hasn’t said it’s a no-no. Mr. Kobach cites here the fact that the U.S. Court of Appeals for the Ninth Circuit agreed that Arizona could punish people who knowingly hired undocumented workers. The law didn’t conflict with a federal one.
In sum, the Arizona law shows us when we fail to act at the federal level on immigration the doors are left open for the creation of police states where brown people are singled out to carry identification papers or face jail time. And all of this will be done legally—by state law.
Emily Creighton writes for Immigration Impact:
In a sudden about-face last week, the Department of Homeland Security (DHS) reversed its position on an interpretation of law which drastically increased immigrants’ vulnerability to deportation. In a brief filed on April 21, DHS urged the Board of Immigration Appeals (BIA) to modify an existing precedent decision in a pending BIA case, Matter of Alyazji. The modification, which reflects the reasoning of amicus curiae, the American Immigration Council’s Legal Action Center, limits when an immigrant could be ordered deported for certain past crimes.
The case deals with a provision of the Immigration and Nationality Act, § 237(a)(2)(A)(i) that causes an immigrant to be deportable if he or she is convicted of a crime involving moral turpitude (CIMT) committed 1) within five years after the date of admission and 2) for which a sentence of one year or longer may be imposed. The meaning of the word “admission” is at the crux of the debate. Matter of Shanu, the BIA precedent decision at issue in this case, held that “admission” could also mean “adjustment of status.” That means that even after a person is admitted and has lived in the U.S. for five years, his or her later adjustment of status to lawful permanent resident could restart the five-year clock. Thus, under Matter of Shanu, a person could live in the U.S. for many more than five years and continue to be vulnerable to removal for conviction of a CIMT.
The Board’s decision in Matter of Shanu undermines Congress’s intent that only people who turn to crime soon after arrival in the U.S. should be deported. As the Seventh Circuit reasoned in a case that rejected Matter of Shanu, “[q]uickly turning to crime can be revealing about character, if not about the real reason for coming to the United States.” However, if adjustment of status were to restart the five year clock, a person with a clean record who adjusts status more than 5 years after his or her initial lawful admission to the U.S. could be deported. Stretching this vulnerability to removal beyond five years after an initial lawful admission was not Congress’ intent.
In addition, Matter of Shanu allows an Immigration Judge to choose between the earlier lawful admission date and the later adjustment of status date. As the Ninth Circuit pointed out, an Immigration Judge who is able to choose among different dates for purposes of determining removability, would exercise “unbounded discretion with disparate effects and drastic immigration consequences.” This unfettered discretion would produce unfair results, where immigrants with similar patterns of admission and subsequent adjustment of status could either be removed from the U.S. or remain as lawful permanent residents at the whim of the Immigration Judge. Click here for the rest of the piece.
Thursday, April 29, 2010
Here is a new feature on Operation Streamline from the Migration Information Source. Operation Streamline targets illegal border-crossers in portions of five Southwest border sectors, referring virtually all of those apprehended for prosecution. Arizona Senators John McCain and Jon Kyl recently published a border-security plan that requests more federal funding for Operation Streamline in their home state, which just passed a controversial immigration enforcement law.
Donald Kerwin and Kristen McCabe report the following:
• Prosecutions for immigration offenses reached an all-time high of nearly 92,000 in 2009 — 54 percent of all federal prosecutions that year — compared to under 6,000 in 1994, when immigration-related prosecutions were only about 9 percent of the total.
• The government may be starting to shift its prosecution priorities: more serious immigration offenses accounted for a greater proportion of prosecutions during the first three months of 2010.
• DHS sees decreased apprehensions in participating sectors as a sign that the program is working. But flows may have moved. Apprehensions in the San Diego sector — not part of Operation Streamline — increased 14 percent from 2006 to 2008.
Howard Fischer writes for the Arizona Daily Star:
State senators approved legislation aimed at the curbing the ethnic-studies program in Tucson Unified School District.
HB 2281 would make it illegal for a school district to have any courses or classes that promote the overthrow of the U.S. government, are designed primarily for students of a particular ethnic group or advocate ethnic solidarity "instead of the treatment of pupils as individuals."
It also would ban classes that "promote resentment toward a race or class of people."
Sen. Linda Lopez, D-Tucson, said the legislation is little more than a thinly disguised effort to quash a program TUSD officials have said was proven academically successful.
According to TUSD officials, the program in the district's Mexican-American studies department simply provides historical information, which conflicts with state School Superintendent Tom Horne's assessment the program is promoting racial hatred and "ethnic chauvinism."
District officials insisted earlier this year nothing in the program would violate the legislation, if it were to become law.
But Lopez said teachers in the program have told her the measure would affect how they can teach history. Beyond that, she said this level of legislative intervention into how subjects can be taught is academically a bad idea. Click here for the rest of the story.
From Derek Thompson of the Atlantic Business:
President Bill Clinton spoke at the Peterson Foundation Fiscal Summit in Washington, D.C., about how he would advocate for fiscal responsibility were he running for office in 2010. His big pitch boils down to two ideas: (1) the future and (2) immigrants.
Here were his self-transcribed (read: rough, but directionally accurate) statements.
On reducing the deficit
"The end result works. Look what happened to Bill Clinton. America has got to get back into the future business. We can't do it if we keep mortgaging our future to other countries ... to our children and grandchildren. Then I'll tell them I'll be careful. I'll do everything I can to help the old and the poor and we have to change the way we do health care.
"We need more immigrants. We need to reverse the age ratio. I see that as part of fiscal responsibility. [Congress] need to pass something. I don't like that Arizona bill, but I get why it happened. It's horrible what happening along the border."
"The great virtue of this country, the thing we have over China and India is that we have somebody from everywhere here, and they do well. This country still works for immigrants. The reason there is anti-immigrant sentiment is white-collar factory workers got killed in the last decade. The burdens of the last decade's economic downturn was basically on white male high school grads, or who didn't graduate from high school or a couple years of college, who got shivered in this economy. Their taxes can be lower if we get more taxpayers. The changes we make will be less draconian if we get more people into the system. I don't think there's any alternative than to increase immigration. I don't see any kinda way out of this unless that's part of the strategy." Click here for the rest of the piece.
More Americans believe that Hispanics are the targets of a lot of discrimination in American society than say the same about any other major racial or ethnic group, according to a Pew Research Center survey taken prior to the recent enactment of an immigration enforcement law by the state of Arizona. These findings from the Pew Research Center's November 2009 survey are included in a new fact sheet released today by the Pew Hispanic Center. The fact sheet also covers a range of issues, attitudes and trends related to the new Arizona measure and its potential impact on the Latino community and on the enforcement of the nation's immigration laws, including the prevalence of deportation worries among Hispanics, confidence in the police, and views of immigration enforcement. The fact sheet, Hispanics and Arizona's New Immigration Law, is available at the Pew Hispanic Center's website.
Putting the (Political) Lie to the Test: The Truth-O-Meter Evaluates Statements About the Arizona Law
CongressDaily reports that House Democrats have called on their Senate counterparts to move on comprehensive immigration reform as soon as possible. Key Senate Democrats are circulating a 26-page outline (PDF) of a border security and immigration reform bill, which calls for securing the border before giving illegal immigrants in the country legal status. The draft s being circulated by Senate Majority Leader Harry Reid (D-Nevada) along with Sens. Charles Schumer (D-NY), and Robert Menendez (D-NJ.). It would increase fines on employers who knowingly hire undocumentedl immigrants, require workers to carry a biometric identification card, and create a federal commission to recommend visa levels.
The call for action came mainly from members of the Congressional Hispanic Caucus and Congressional Black Caucus.
Reason Number 1001 Why Arizona's Immigration Law is a Bad Idea: Immigration suit against sheriff settled for $100K
The Middletown Journal in Middletown, Ohio reminds us of the reasons why local police involvement in immigration enforcement, like that required by the new Arizona law, may not be so great an idea.
Here Butler County Sheriff Richard Jones stands next to a sign he had placed in the parking lot of the Butler County Sheriff's Department.
The newspaper reports that "An undocumented immigrant worker who sued Butler County Sheriff Richard K. Jones for violating his constitutional rights has been awarded $100,000 in a settlement agreement. The settlement filed in U.S. District Court stems from the 2007 arrest of Luis Rodriguez, 44, formerly of Lebanon, when he and others were rounded by at a Port Union Road construction site by Butler County deputies and a former immigration specialist hired by Jones. Officials said they were at the site to talk to a supervisor about undocumented workers, but Rodriguez and more than 20 others were interrogated and asked to provide identification, according to Rodriguez’s attorney, Al Gerhardstein . . . . Gerhardstein said his client, who had lived in Butler County for 11 years, was arrested and charged with providing a false identification and deported to Mexico, though he was later acquitted of the charge."
Here are three new immigration articles from the Social Science Research Network (www.ssrn.com)::
"Natural (Native) Born Citizen Defined: Before and After the Fourteenth Amendment" DAN GOODMAN. ABSTRACT: Before the Fourteenth Amendment, the governments of the several States were considered separate and distinct sovereignties from each other as well as from the government of the United States. After the Fourteenth Amendment, the governments of the several states are still considered separate and distinct sovereignties from each other as well as from the government of the United States. Before the Fourteenth Amendment, a native born citizen was a citizen of a State, and a native born citizen of the United States, when aboard. Before the Fourteenth Amendment, an alien or foreigner could become a naturalized citizen of the United States or a naturalized citizen of a State. A naturalized citizen of the United States domiciled in a State, became a citizen of that State; that is, a citizen of the United States AS WELL AS a citizen of a State. A naturalized citizen of a State became also a citizen of the United States; that is, a citizen of a State AS WELL AS a citizen of the United States. Before the Fourteenth Amendment, a naturalized citizen of the United States and a naturalized citizen of a State were also a naturalized citizen of the United States, when aboard. Citizenship of the United States was established by the Supreme Court in the case of Dred Scott. Instead of distinguishing between a citizen of a State, under the constitution and laws of the individual State, and a citizen of a State, under the Constitution and laws of the United States, Chief Justice Tanney, in this case, made a distinction between a citizen of a State, under the constitution and laws of the individual State and a citizen of the United States under the Constitution and laws of the United States. Because of this, citizenship of the United States, became a constitutional reality, instead of being an international status. After the Fourteenth Amendment, citizenship of a State and citizenship of the United States were held to be separate and distinct by the Supreme Court in the Slaughterhouse Cases. That a citizen of a State was separate and distinct from a citizen of a United States. After the Fourteenth Amendment, a native born citizen is a citizen of a State, and a native born citizen of the several States, when aboard. After the Fourteenth Amendment, an alien or foreigner could become a naturalized citizen of the United States or a naturalized citizen of a State. A naturalized citizen of the United States residing in a State, becomes a citizen of that State; that is, a citizen of the United States AND a citizen of a State. A naturalized citizen of a State becomes also a citizen of the several States; that is, a citizen of a State AS WELL AS a citizen of the several States. After the Fourteenth Amendment, a naturalized citizen of the United States is a naturalized citizen of the United States, when aboard. After the Fourteenth Amendment, a naturalized citizen of a State is a naturalized citizen of the several States, when aboard. After the Fourteenth Amendment, a citizen of the United States is one who is born in the United States and not a State. And naturalized in the United States and not naturalized in a State. Regarding a foreign corporation, it is neither a citizen of the several States under Article IV, Section 2, Clause 1 of the Constitution of the United States (of America) nor a citizen of the United States under Section 1 of the Fourteenth Amendment. A corporation, before the Fourteenth Amendment, was not considered a citizen of a State, under the Constitution. After the Fourteenth Amendment, a corporation is neither considered a citizen of the several States, under Article IV, Section 2, Clause 1 of the Constitution of the United States (of America) nor a citizen of the United States under Section 1 of the Fourteenth Amendment.
"Persons and Citizens in Constitutional Thought" International Journal of Constitutional Law, Vol. 8, No. 1, pp. 9-29, 2010 LINDA S. BOSNIAK, Rutgers University School of Law, Camden. ABSTRACT: The ideas of citizenship and personhood have an ambiguous relationship in constitutional thought. Often, they are understood as aligned, even identical. Claims for “equal citizenship” and “democratic citizenship” are, in effect, claims on behalf of the rights and recognition of individuals qua persons. Frequently, however, citizenship and personhood are regarded as opposing concepts. Whereas citizenship references national belonging and its associated rights, personhood evokes the rights and dignity of individuals independent of national status. Personhood stands for the universal, in contrast to citizenship, which is ultimately exclusionary. Much of the ambiguity of the personhood-citizenship relationship results from the multivalence of the idea of citizenship itself. Analytically, the term is used to reference both re lations among already-presumed members of a political community and the process of constituting that community in the first instance. Normatively, citizenship is understood as committed to universalism within the community, but in its community-constitutive mode, it is associated with bounded national commitments. Idealized accounts treat citizenship as a concept that works to mediate between universality and boundedness and ultimately to accommodate them: in this view, that is precisely citizenship’s function and its value. Citizenship is thus represented as both the embodiment of the universal and as the framing precondition for it. In earlier work, I have shown that the accommodation of the universal and particular that citizenship purports to stand for is often unstable and internally contradictory. Here, I am interested in thinking about constitutional personhood’s own hang-ups. Personhood as a preferred basis for constitutional subject status raises as many questions as it answers, and in the context of constitutional thought, it promises much more than it can deliver. This essay sketches out some directions for a critical reading of the idea of “constitutional personhood.”Mutual Recognition in European Immigration Policy: Harmonised Protection or Co-Ordinated Exclusion? T. John O'Dowd UCD School of Law in F.A.N.J. Goudappel, R. Oostland & H. Raulus (eds), The Future of Asylum in the European Union: Problems, Proposals and Human Rights (The Hague, Asser Press; 2010.) Abstract: The EU’s migration policy and the nature of the instruments adopted under it are likely to have an increasing impact on national migration controls, over the course of the recently adopted Stockholm Programme and beyond. Two recent examples have been the establishment of minimum procedural standards and the increasing application of the mutual recognition principle in relation to decisions on expulsion and refusal of entry to third-country nationals. This chapter examines the influences upon, and the impact of, Community measures in those two fields—in particular the Return Directive—and seeks to assess what each tells us about the political dynamics behind the development of EU policies and actions in these areas, particularly in the context of the Union’s search for legitimacy through public perception of its effectiveness in assisting in the achievement of key policy goals, even if the content of these remains determined largely by national politics and national policy. A key issue is the adequacy of the guarantees in Union law of effective judicial review of decisions on admission and return. This is particularly relevant to the extra-territorial activities of the Member States and the Union, through operations co-ordinated by FRONTEX for instance. The adequacy of legal safeguards applicable to that extra-territorial migration control is briefly considered. The chapter closes by considering the relevance of opinion amongst MEPs and of national public opinion in relation to the European contribution to migration policy and what developments in this field tell us about the changing nature of the executive order of the EU.
MALDEF, ACLU and NILC to Announce Challenge to Arizona Racial Profiling Law at Press Conference in Phoenix on Thursday: Civil Rights Leaders Dolores Huerta and Richard Chavez Joined by Famed Musician and Arizona Native Linda Ronstadt to Condemn New Law
On Thursday, April 29, 2010 at 11:00 a.m. (MST), MALDEF, the American Civil Liberties Union, the ACLU of Arizona and the National Immigration Law Center (NILC) will hold a news conference on the steps of the State Capitol Executive Tower in Phoenix, Arizona to announce that they are preparing to challenge Arizona's extreme new law, which requires law enforcement to question people about their immigration status during everyday police encounters and criminalizes immigrants for failing to carry their "papers."
The unconstitutional law, the groups say, encourages racial profiling, endangers public safety and betrays American values. Speakers will include Thomas A. Saenz, MALDEF President and General Counsel; Alessandra Soler Meetze, Executive Director of the ACLU of Arizona; Dolores Huerta, co-founder of the United Farm Workers of America; Richard Chavez, civil rights leader; and Linda Ronstadt, multi-Grammy winning artist and human rights advocate.
Fifteen years ago, MALDEF, ACLU and NILC successfully challenged Proposition 187 in the state of California, where a voter-approved initiative required proof of legal status to access virtually all public services. The enactment of Prop 187, as it was commonly referred to, tore apart schools and communities across the state as fear and suspicion became pervasive, and the state wasted tens of millions of dollars defending a law ultimately struck down as unconstitutional.
Wednesday, April 28, 2010
The Associated Press reports that activists are seeking to put a measure on the ballot that would overturn Senate Bill 1070. And three Arizona cities reportedly are considering the option of suing to block implementation of the law.
Maybe my friends (and Arizonans) Bill Hing and George Martínez will be able to visit Arizona after all!
Needless to say, the Arizona immigration law has kept immigration law professors very busy over the last few days. As we have said to ourselves (and whoever would listen) for years, we are relevant! The Wall Street Journal blog, New York Times (and here), Associated Press, and just about every newspaper, blog, and television and radio station is quoting a law professor or two (or ten) about Arizona's foray into immigration enforcement. And the immigration listserves, blogs, Facebook groups, and the like have gone hogwild over comments, questions, etc. about the Arizona law. Indeed, the ImmigrationProf blog had over 2000 hits yesterday alone!
On behalf of immigration law professors everywhere, THANK YOU ARIZONA!
Are there serious flaws with the U.S. immigration system? Yes, was the primary response echoed by a group of leading immigration experts who convened at Penn State University’s Dickinson School of Law on March 18 for a symposium titled “Immigration Adjudications: Court Reform & Beyond." Sponsored by Penn State Law's Center for Immigrants' Rights and organized by Professor Shoba Sivaprasad Wadhia, director of the center, the program included a diverse lineup of speakers with backgrounds ranging from current immigration judges and legal practitioners to representatives from the Executive Office for Immigration Review (EOIR) and Equal Justice Works. Throughout the day, the panelists examined the state of immigration adjudications and debated proposed administrative and legislative solutions, including the creation of an independent immigration court.
Dianne Solís of the Dallas Morning News reports that "activists are predicting that a tough new immigration law in [Arizona] will spur protests nationwide and bolster a previously planned march Saturday in downtown Dallas. Dallas police are preparing for a crowd of up to 100,000 for Saturday's march, Assistant Police Chief Charles Cato said Monday."