ImmigrationProf Blog

Law Firm Partner Helps Immigrant Children

Kids in Neeed of Defense has a nice blog story about Douglas Doskocil, a partner in Goodwin Procter LLP's Litigation Department, where he concentrates on intellectual property litigation. Doug's clients are often major systems engineering and technology development corporations based both in the United States and abroad. Doug also represents a very different type of clientele from abroad – children who migrated to the United States without a parent or legal guardian.

In his role as coordinator of Goodwin Procter's Unaccompanied Minors Pro Bono Program, Doug oversees the firm's work on KIND cases, which currently consist of child clients from Belize, El Salvador, Guinea, Honduras, and Mexico. Though the children – who range in age from 13 to 18 years old – hail from different countries in the world and experienced unique upbringings, they each came to the United States alone because they had been abused, abandoned, or neglected, or were fleeing from persecution in their home country. Each of the cases that Doug oversees involves a vulnerable child who did not speak English before coming to the United States, was unfamiliar with the laws and customs of this country, and who made the dangerous journey with the hope of finding protection. One of these children is 16-year-old Walter.  Click the link above for more information.

KJ

Immigrant of the Day: Blanca Medina (El Salvador)

Blanca Medina is a survivor of five rapes—four in El Salvador and one more by a smuggler after she fled north to seek safety in the United States. Reeling from the trauma, Blanca did not manage to attend her immigration hearing and was ordered deported in absentia. Six years later, ICE located Blanca and prepared to execute the removal order.

Blanca sought legal help and with great difficulty began to talk about what had happened to her in El Salvador. ICE was informed that she had been raped multiple times there and could come to harm given that her last attacker was an influential gang member. Blanca was particularly afraid for what might happen to her five-year-old U.S. citizen daughter Alejandra. She filed a motion to reopen, requests for discretionary relief, and a federal lawsuit. All requests were denied. ICE insisted it would still deport Blanca despite the ongoing federal litigation.

For lack of legal options, Blanca went public with her story. Blanca's online petition garnered some 118,000 signatures in support. Once the media picked up Blanca’s story, ICE agreed to stay Blanca’s removal and joined in a motion to reopen her case.

Blanca overcame tremendous odds with incredible courage. She did it for her daughter Alejandra’s future.  

Matthew D. Muller of Kerosky, Purves & Bogue in San Francisco is Blanca Medina's attorney.

KJ

Immigration Article of the Day: Work Like Any Other, Work Like No Other: Establishing Decent Work for Domestic Workers by Peggie R. Smith

Work Like Any Other, Work Like No Other: Establishing Decent Work for Domestic Workers by Peggie R. Smith Washington University in Saint Louis - School of Law June 17, 2012 Employee Rights and Employment Policy Journal, Vol. 51, No. 157

Abstract: Extending labor rights to domestic workers is crucial not only from the standpoint of the workers but also in light of the renewed emphasis on and demand for paid care work in the home. This article explores the legal challenges that must be addressed in order to ensure decent work for domestic workers. It does so at a pivotal moment in the ongoing struggle to provide justice for domestic workers, to ensure that they enjoy the same substantive labor rights extended to workers generally. For the first time, the International Labour Organization (ILO) has agreed to consider adopting labor standards that allow for the specificity of the unique circumstances of domestic service workers. This article therefore combines a global perspective with a local focus on the particular status of domestic workers in the United States. Part II overviews domestic service and underscores some of the distinct qualities of both the work and the domestic service employment relationship. While the situation of domestic workers varies widely within and among countries, the workers share in common a deprivation of rights that turns on their invisibility within private households. Parts III and IV focus on the work of the ILO as it relates to domestic service. Part III considers the applicability of existing ILO standards to domestic service while Part IV examines the proposed ILO standards relating to domestic service. The effectiveness of ILO standards ultimately rests on ILO member states embracing them and taking steps to ensure that national laws comply with them. Thus Part V examines key national labor laws in the United States, evaluates their significance for domestic workers, and considers the extent to which they presently align with the proposed ILO principles of decent work for domestic workers. In short, Part V poses and answers the question: How close is the United States to ensuring decent work for domestic workers? Part V also provides some initial guidance on steps the United States must take in order to fill the existing gaps in its national labor laws as applied to domestic workers.

KJ

Foreign-Born Health Care Workers in the United States

Migration Policy Institute has this fact sheet about Foreign-Born Health Care Workers in the United States.  In 2010, women accounted for three of every four foreign-born health care workers. Employment in health care occupations increased despite the recession and is projected to outpace almost every major occupational group in terms of job growth between 2010 and 2020, according to the US Bureau of Labor Statistics. Amid this growth, the number of foreign-born health care workers has also been on the rise, increasing from 1.5 million to 1.8 million between 2006 and 2010. Today, immigrants make up a sizeable proportion of the US health care workforce.

In 2010, the foreign born accounted for 16 percent of all civilians employed in health care occupations in the United States. In some health care professions, this share was larger. More than one-quarter of physicians and surgeons (27 percent) were foreign born, as were more than one out of every five (22 percent) persons working in health care support jobs as nursing, psychiatric, and home health aides.

KJ

President Obama's Hypocrisy on the SB 1070 Case

My views from Huffington Post:

After the Supreme Court struck down the heart of Arizona's anti-immigrant SB 1070 law on Monday, President Obama expressed concern over the one provision that the high court let stand for the time being:

    "I am pleased that the Supreme Court has struck down key provisions of Arizona's immigration law. ... A patchwork of state laws is not a solution to our broken immigration system -- it's part of the problem.

    At the same time, I remain concerned about the practical impact of the remaining provision of the Arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally. I agree with the Court that individuals cannot be detained solely to verify their immigration status. No American should ever live under a cloud of suspicion just because of what they look like."

Hooray for the Justice Department's bold challenge to the Arizona law and copycat attempts in other states. However, there is a basic hypocrisy in the president's "concern" over section 2(B) that the Supreme Court punted on, awaiting word on how state courts would interpret its limits and how Arizona police would implement the law.

First some background. The Supreme Court struck down three of four key provisions of SB 1070. Arizona acted improperly by trying to enact its own immigration laws by making it a crime to be an unregistered immigrant and to solicit work in the state. Arizona also could not authorize its police to arrest immigrants who they believe are deportable; in other words the state cannot help ICE enforce federal immigration laws unless asked to do so by the feds.

However, for now, under section 2(B) of SB 1070, if Arizona police validly stop a person for violation of a state law, in the process they can also ask for immigration papers if there is "reasonable suspicion" that the person is unlawfully present in the United States. The section also requires state and local authorities to determine the immigration status of any person placed under arrest, regardless of whether the person is suspected of being in the country unlawfully.

The president's critique of the Court's inaction on section 2(B) is ironic, because in fact, under the current ICE "Secure Communities" program (S-Comm) which Obama's Department of Homeland Security has expanded, his administration has essentially implemented a section 2(B) process across the nation without the consent of the states. As part of normal enforcement practices, state law enforcement agencies who fingerprint individuals submit those fingerprints to a state identification bureau. The prints are then routed to the FBI to ascertain whether there are any outstanding warrants for the individual. But under S-Comm, the fingerprints are automatically sent by the FBI to ICE's immigration database to initiate an immigration status background check; if there is a "hit" or there is a question as to someone's legal status, FBI sends a message to various departments within ICE, and the law enforcement agency is also informed. ICE then determines whether to order the local police to hold the person for pick up by ICE.

ICE has taken the position that the sharing of fingerprints for immigration enforcement purposes is mandatory whether or not a state consents. States such as Illinois, New York, and Massachusetts have objected to this process, but ICE has ignored the states' requests to opt out of this process.

All too often, victims of crimes, minor offenders, and even crime witnesses have been swept up by S-Comm. Reports that domestic violence victims have been rounded up because of S-Comm are common. More than one-third of individuals arrested under S-Comm have a U.S. citizen spouse or child; Latinos comprise 93 percent of individuals arrested through S-Comm, even though they are only about 75 percent of the undocumented population. There is little wonder why, at oral argument in the SB 1070 case, U.S. attorneys arguing against the law refused to point out that there was a racial profiling problem with section 2(B). That would have been more duplicity.

If President Obama is really concerned about the effects of section 2(B) and that "no American should ever live under a cloud of suspicion just because of what they look like," then he should order an end to the Secure Communities program.

bh

Campos on Scalia: "a pompous celebrant of his own virtue and rectitude"

Earlier this week, Justice Antonin Scalia dissented in part in Arizona v. United States, stating that he would uphold S.B. 1070 in its entirety as states unquestionably have the sovereign power to regulate migration into the state.  Among the critics of Justice Scalia's opinion is University of Colorado law professor Paul Campos, who said in a Salon commentary that Scalia sounds more like a right-wing radio host than a Supreme Court justice. Campos writes:

“Scalia, who 25 years ago had a certain gift for pointing out the blindness and hypocrisy of certain versions of limousine liberalism, has in his old age become an increasingly intolerant and intolerable blowhard: a pompous celebrant of his own virtue and rectitude, a purveyor of intemperate jeremiads against the degeneracy of the age, and now an author of hysterical diatribes against foreign invaders, who threaten all that is holy." (emphasis added).

For more on this story, click here.

KJ

DHS Rescinds 287g Agreements in Arizona

The Obama administration suspended part of its controversial 287(g) program in Arizona this week following the Supreme Court’s ruling in Arizona v. United States. DHS announced that it was ending its 287(g) agreements in Arizona, which authorize certain local police to enforce immigration laws. Click here for more on this story from Immigration Impact.

KJ

Immigration Article of the Day: Immigration Advocacy as Labor Advocacy by Kati L. Griffith and Tamara Lee

Immigration Advocacy as Labor Advocacy by Kati L. Griffith and Tamara Lee, Cornell University - School of Industrial and Labor Relations May 18, 2012 Berkeley Journal of Employment and Labor Law, Vol. 33, No. 1, p. 73, 2012

Abstract: As immigration reform efforts continue to experience fits and starts in Congress, immigrant and non-immigrant workers have joined together to advocate for immigration reform at the federal level and to protest the surge of exclusionary immigration measures at the state and local levels. These advocacy efforts demonstrate that many workers connect immigration law to workplace conditions. This article develops a comprehensive analytical framework for viewing immigration advocacy as labor advocacy, even though these two statutory regimes have completely separate policymaking processes. It uncovers the historical roots of the interplay between immigration law and labor issues. Similarly, it elaborates the ways that a workplace law, the National Labor Relations Act (NLRA), has the potential to protect a broad range of workers’ immigration advocacy efforts. To date, scholars have largely focused on how restrictive aspects of immigration law narrow workplace protections, such as minimum wage and safety standards. In contrast, this article shows how the interaction between immigration law and workplace law can broaden workplace protections in some circumstances. By constructing an analytical lens that views immigration law in relationship to workplace law, this article illuminates why it is crucial to simultaneously consider these two statutory regimes. In doing so, it also reveals new opportunities for immigrant and worker advocates to come together around shared interests.

KJ

Health Care Reform and Immigrants

Yesterday was a big news day with attention focused on the Supreme Court decision to uphold the heath care reform bill. Here is a message on the impact of the act on immigrants:

It has been an incredible week for the nation, with all eyes on the Supreme Court. Just a few days after a ruling that struck down most of SB 1070, Arizona’s racial profiling law, the Court affirmed that Congress has the authority to fix the health care crisis for millions of people.

Today’s landmark decision upholding the Affordable Care Act (ACA) — Congress’s first attempt in 45 years to fix the broken health care system — will be of interest to legal scholars and political pundits for days to come, but it has real meaning and brings real hope to millions of Americans, including immigrant families, who will no longer have to choose between paying their rent and taking their child to the doctor.

Today’s decision to uphold the ACA will help low-income immigrant families by:

► Allowing millions of lawfully present immigrants of any age to purchase private health insurance and to receive federal tax credits to make health insurance more affordable.

► Allowing many immigrants who are single, nondisabled adults who earn less than $15,000/year access to Medicaid, to help them pay for needed care in states that do, and should, take the federal government’s offer to provide Medicaid to individuals below 138 percent of the federal poverty level.

► Ensuring that citizen children in mixed-status families are eligible for affordable health insurance regardless of their parents’ immigration status or income.

► Expanding funding to community health care centers so that any individual who is and will remain uninsured, including undocumented immigrants who are excluded from other affordable coverage options, can continue to seek basic health services, regardless of his/her income or immigration status.

► Improving the collection of data on race, ethnicity, and primary language so we can better address health inequities.

► Providing the opportunity for immigrant-serving, community-based organizations and community health workers to apply for funding so they can provide outreach and education to their communities.

► Improving and investing in communities to ensure our neighborhoods are safer and have access to healthier foods and activities.

(More details about how immigrants are included in the ACA are available here.)

The ACA isn’t perfect: Undocumented immigrants were unjustly excluded from this law, yet again victims of politics. This exclusion isn’t just immoral, it’s also poor policy: Our nation needs a stronger, not weaker, safety net to improve everyone’s health.

The National Immigration Law Center has been working for over 30 years to protect and expand access to affordable health care for low-income immigrants, regardless of their immigration status.

We have fought to remove legal barriers at the federal, state, and local levels to improve access to basic health care for immigrants at their local health centers and hospitals and to help create more options for affordable health insurance. We are leading legal battles across the nation to oppose laws like Arizona’s SB1070 and other detention and deportation policies that create a climate of fear and have a chilling effect on access to health care.

Today’s decision is a starting point, not an end. States must move forward with implementation of the ACA to build upon this important foundation. We look forward to a day when “preexisting conditions”— including age, gender, and economic or immigration status — are no longer barriers to affordable health care. Until then, we will continue to organize, educate, advocate, and litigate on behalf of and along with low-income immigrants and their families.

We hope you will join us!

Marielena Hincapié

Executive Director

National Immigration Law Center

P.S. Our fact sheet detailing how immigrants are included in health care reform is available at www.nilc.org/immigrantshcr.html.

KJ

Attorney: Arizona Can't Implement Immigration Law Without Racial Profiling

Attorney Careen Shannon chatted with Bloomberg LP about the Supreme Court's decision in Arizona v. United States.  She had some interesting things to say on what it will mean for Arizona going forward as the Court essentially put them on notice that they will remain open for reviewing the constitutionality of the 'show your papers' provision as the state implements it.

KJ

Supreme Court Decision on Arizona Immigration Law By Alexander J.L. Phillips

The Supreme Court met Monday June 25th to discuss Arizona’s strict immigration law. This meeting questioned the state’s ability to implement federal immigration policy. The Supreme Court still allowed the portion of Arizona statute that requires police officers to determine the immigration status of those they have stopped.

The justices discussed how much power Arizona has to police its borders, thereby addressing larger civil rights questions such as the extent of racial profiling in Arizona’s approach. They evaluated the terms – how can someone have “reasonable suspicion” that the person is in the United States illegally?

Historically, federal officials have sought out more dangerous illegal immigrants. Arizona’s law requires local officers to request several immigration checks of any individual they deem “suspicious.” Chief Justice John Roberts questioned the federal government’s role, asking why it wouldn’t want a state to assist in identifying illegal immigrants. However, there is discussion about the everyday life of people living under this law.

Nine Network PBS St. Louis’s documentary Homeland deals with these themes of immigration enforcement and documents the stories of individuals affected by immigration law. Homeland also features Kris Kobach, one of the main proponents of strict immigration law, whom took a key role in writing Arizona’s policy.

Kris Kobach’s constituents will find the Supreme Court’s dissection of Arizona’s law dangerous for our country’s safety and economic stability. However, many see it as necessary. What remains from the law is still controversial for civil rights activists, and will affect Arizona’s citizens and non-citizens alike.

 

Deferred Action in Immigration Law: The Next Generation by Shoba Sivaprasad Wadhia

“It is the right thing to do.” These seven words emanated from my office computer as I watched President Obama broadcast the most significant immigration policy since his career at the White House. On June 15, President Obama announced that the Department of Homeland Security (DHS) would allow certain undocumented youth with strong intellectual promise and ties to the United States to request temporary relief from deportation proceedings and apply for work authorization. While many of the details are yet to be revealed, a memorandum from the DHS indicates that “deferred action” will be available to eligible youth who came to the United States under the age of sixteen; have continuously resided in the United States for at least five years preceding June 15, and are present in the United States on June 15; are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States; have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety; and are not be above the age of thirty.

The new policy provides a temporary safety valve for future beneficiaries of the DREAM Act which is a piece of legislation that has been introduced by Congress for multiple years, and generally provides a more specific immigration status, path to permanent residency and eventual citizenship for certain young people who have lived and been educated in the United States and expect to contribute to the United States in meaningful ways. In the wake of a legislative stalemate over the DREAM Act, thousands of “DREAMers” have come out of the shadows and called for the Administration to consider tools within its authority to protect them from detention and deportation.

The announcement by President Obama was a rare combination of good politics and good policy. Prosecutorial discretion recognizes both the limited resources of the immigration agency and the compelling humanitarian reasons for why this discretion matters. The agency’s first prosecutorial discretion policy was revealed when the lawyer for music legend John Lennon sued the immigration agency (then INS) for the details. At one time, prosecutorial discretion was called “nonpriority status” and later “deferred action,” but today, prosecutorial discretion is associated with many different actions by the government. For example, a DHS officer can exercise favorable discretion by granting a temporary stay of removal, joining in a motion to terminate removal proceedings, granting an order of supervision, cancelling a Notice to Appear, or granting deferred action. Deferred action is one of the more precious forms of prosecutorial discretion to the extent that it allows eligible individuals to apply for work authorization. While select members of Congress were quick to label President Obama’s policy as an “amnesty” for law breakers, the scope of the June 15 Memorandum is in fact consistent with the longstanding features of the deferred action program and has further been identified by more than 90 law professors as a potential administrative remedy for DREAM Act eligible individuals.

President Obama has used this existing authority to address a humanitarian need and for this deserves recognition. Currently, there is no formal deferred action application form or fee. Upon receiving deferred action, the person may remain in the United States and may apply for work authorization unless, and until, the agency decides to target the person for enforcement under the immigration laws. Specifically, the regulations governing immigration contain a specific subsection for individuals applying for work authorization on the basis of deferred action. Historically, the Department has not kept public records about deferred action grants, nor has it made information about the program available on its website, forms, or memoranda. Breaking with its tradition of silence and informality, early signs show that DHS will keep open channels of communication with stakeholders about how the deferred action program for certain young people will operate. DHS has only 60 days to implement the new program, and for this reason will use a limited set of tools to create a design specific to the individuals eligible. Beyond this 60-day period and program however, DHS should take a serious look at the deferred action program in the long run. Below are my personal thoughts on the deferred action program at large and recommendations for the next generation of the program.

Transparency about deferred action matters. Transparency about the deferred action process promotes consistency by directing potential applicants to a similar procedure at the front end, and ensuring more consistent outcomes at the back end. From the agency’s perspective, transparency about deferred action and publication of a regulation may be more trouble than it is worth. “Transparent rules tend to spotlight a value choice. Opponents of that choice will attack the agency's action, forcing the agency to expend its own resources for defense. Rules having low transparency thus become more attractive, since they conceal value choices.” The agency might argue that transparency by the Department about prosecutorial discretion and deferred action in particular could result in a storm of objections by restrictionists and other members of the public who equate deferred action to an “amnesty” that received no support by Congress. In response to any concern that a published rule on deferred action is akin to a “backdoor legalization” program, I would opine that a legislative scheme is distinguishable and more generous in both its application and its benefits. For example, the published rule proposed in this article would be limited to non-citizens who possess specific qualities and criteria and enable the individual to be legally present in the country and apply for work authorization. In contrast, a legalization program includes the benefits of temporary residence, work authorization, permission to travel, and a path to green card status and eventual citizenship.

Deferred action should be published as a rule in the Federal Register. The regulation should be subject to a 120-day public notice and comment period. The regulatory language as proposed must recognize both the humanitarian and economical bases for deferred action. The advantages of rulemaking promotes the values that are so interconnected with principles of administrative law, including but not limited to transparency, consistency, acceptability, and accountability. As described by Professor Stephen H. Legomsky: “[R]ulemaking has tremendous advantages over adjudication as a vehicle for policy formation. These advantages include broader public input, notice to Congress, avoidance of adjudicative hearings to resolve issues of legislative fact, avoidance of litigating the same issues repeatedly, more enforceable rules, clearer advance notice of allowable and prohibited conduct, fairer applicability of the rules to similarly situated individuals at different points in time, and the opportunity for affected individuals to make policy submissions before the rule is adopted.”

In addition to advancing various process values, rulemaking would assist with narrowing the various factors used by adjudicators to determine whether deferred action should be granted. An analysis of the data on deferred action cases indicate that decisions are based on distinguishable criteria and that a single regulation would only bolster the application of this criteria in like cases, and stave the inevitable abuse of discretion that stems from a system where cases are decided by different regional officers and without accountability. The benefit of using rules to guide discretionary decisions is not a new argument and has been affirmed by scholars in various other immigration contexts.

Rulemaking is also cost-effective. I believe the costs associated with rulemaking would be recovered by enabling immigration adjudicators to follow a clear rule. Clearer rules on deferred action could also remove the costs associated with documenting every rationale and factor in a particular A-file, gaining approval from a supervisor before granting deferred action, or ICE attorneys having to review every NTA for sufficiency under the prosecutorial discretion guidelines. Interestingly enough, the internal checks and balances created by the Morton Memo on Prosecutorial Discretion, however important, are a costly endeavor that could be streamlined by crafting a rule limited to deferred action cases. I also believe that implementation of a regulation would not particularly increase litigious costs but, to the contrary, infuse a level of internal quality control and incentive for immigration adjudicators to apply the rule faithfully.

The proposed rule should include information about the scope of deferred action, namely that it is a temporary benefit available to eligible non-citizens who meet specific criteria and who warrant deferred action as a matter of discretion. The agency should create a form for deferred action requests, and attach a nominal fee for processing the form. An applicant who is unable to pay a filing fee should be eligible to fill out a fee waiver form. The application should be filed to the Vermont Service Center or another regional Service Center. By maintaining all applications at a specific service center, it will be easier for DHS to keep statistics and also adjudicate related requests for work authorization. The rule should be discretionary and place the burden on the non-citizen to present substantial equities that may include: continuous residence in the United States for at least ten years; presence of a USC or LPR child, spouse, or parent in the United States; serious mental health condition or physical disability; and/or tender or elderly age.

While my proposal provides concrete guidelines, it offers flexibility for the Department to consider equally compelling factors not listed. That said, my goal is not to “codify” previous memoranda like the Morton Memo on Prosecutorial Discretion, but instead to create a discreet remedy in the form of deferred action that is based on an identifiable set of factors that (as illustrated by the data) the agency has relied upon for more than thirty years. The Department will and should continue to follow the current memoranda on prosecutorial discretion when making prosecutorial decisions. Deferred action is merely one slice of the scores of decisions that currently serve as an exercise of prosecutorial discretion.

Those who are denied deferred action should receive a written decision with reasons for the denial. Written decisions promote accuracy, consistency, and acceptability by allowing the applicant to be heard. While written decisions would likely add costs onto the agency, these costs could be offset by the fees that accompany the new deferred action form and the current costs associated with the internal checks and reviews that accompany deferred action processing. Those who are successful in obtaining a deferred action grant should be granted temporary residence for a renewable three-year period, work authorization, and permission to travel for good cause. A grant of deferred action should not lead to permanent residency, but neither should it prohibit a grantee from applying for a more permanent legal benefit if she is otherwise eligible. The period during which an individual is in deferred action status should be recognized as a lawful status as is currently the case. If the newly proposed regulation on deferred action needs alteration, the Department should make adjustments to the regulation “relying on exceptions, time extensions, variances, and waivers.”

The concern that a published rule on deferred action may attract future illegal migration is a legitimate one, but this concern can be addressed by catering the rule to people who meet specific qualifying criteria and, if appropriate, setting an annual numerical cap. Since the agency already employs specific criteria for considering deferred action cases, spelling out the criteria in a published rule would not necessarily create a new or objectionable policy for the Department, but would advance the goals of equal justice, accuracy, consistency, efficiency, and acceptability. Achieving these values in the long run requires transparency about how deferred action works as well as a new regulation.

The Department of Homeland Security should train immigration employees about the new rule. Moreover, DHS should create a system whereby every case that is brought to the Department’s attention is automatically considered for deferred action. Alternatively, individuals who are facing removal before EOIR or DHS should be notified about their right to apply for deferred action before USCIS. Information about deferred action should be posted on the relevant DHS websites. This information should include a step-by-step process about how to apply for deferred action, basic eligibility requirements, and related benefits. If a policy is implemented whereby DHS automatically considered cases for deferred action, then such policy should be posted on the various DHS websites and also accompanied by a “Fact Sheet” in user-friendly English. Even if the procedures themselves are not codified as regulations, they should be published in the Federal Register.

Finally, DHS must publish the facts of individual cases as well as decisions about deferred action and keep statistics about the cases in which deferred action is considered, denied, and/or granted. Such statistics must be made part of the annual statistics published by DHS and also posted on the various websites. DHS must publish the training officers receive on deferred action. Cumulatively, publishing information about the deferred action process, related decisions, statistics, and training programs will advance transparency and acceptability, while also providing the public with tools for measuring efficiency, accuracy, and consistency in deferred action cases.

About the Author: Shoba Sivaprasad Wadhia is the founder/director of Penn State’s Center for Immigrants’ Rights, an immigration policy clinic where students produce practitioner toolkits, white papers, and primers of national impact on behalf of client organizations. Professor Wadhia researches the role of prosecutorial discretion in immigration law; the association between detention, removal and due process; and the intersection between immigration, national security, and race. Professor Wadhia teaches or has taught asylum and refugee law, immigration law, and a clinical course on immigration law and policy. Professor Wadhia serves on the ABA Commission on Immigration and is a member of the American Immigration Lawyers Association and National Immigration Project of the National Lawyers’ Guild. She is a graduate of Georgetown University Law Center. The substance of this report is drawn from Shoba Sivaprasad Wadhia, Sharing Secrets: Examining Deferred Action and Transparency in Immigration Law (2011) University of New Hampshire Law Review, Vol. 10, No. 1; http://ssrn.com/abstract=1879443 or http://dx.doi.org/10.2139/ssrn.1879443, which also houses the relevant citations and sources.

Racial flames fanned in Jasper, Texas

 

Racial tensions still run high in Jasper, Texas, the town where an African American, James Byrd, Jr. more than a decade ago was dragged to his death from a rope tied to a truck.  Byrd's killing gave impetus to congressional passage in 2009 of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act.

KJ

Reform for Immigrant Innovators Also Needed

From Immigration Direct:

While many are arguing over immigration reform, a new study has revealed that immigrants are necessary for businesses to thrive, according to The New York Times. The survey released by the Partnership for a New American Economy, a nonprofit group co-founded by New York's Mayor Michael Bloomberg, revealed that many foreign-born inventors are trained in the country, however, many worry post-graduation about their future options for living in the United States.

Under current immigration laws, many student immigrants are only allowed to stay in the United States for 12 to 29 months after their graduation.

The majority of the innovators who move to the the U.S. to study science, technology, engineering or math, also called STEM subjects. Mayor Bloomberg believes it is important to keep these foreign graduates in the United States because otherwise they will return back to their countries and become American competitors.

“Now that we know immigrants are behind more than three of every four patents from leading universities, the federal laws that send[s] so many of them back to their home countries look[s] even more patently wrong,” Mayor Bloomberg said in a statement. Read more...

bh

Immigration Article of the Day: Constitutionalizing Immigration Law: The Vital Role of Judicial Discretion in the Removal of Lawful Permanent Residents by MARITZA REYES

"Constitutionalizing Immigration Law: The Vital Role of Judicial Discretion in the Removal of Lawful Permanent Residents" Temple Law Review, Vol. 84, No. 3, 2012 MARITZA REYES, Florida A&M University College of Law.

ABSTRACT:  For decades, scholars and advocates criticized the harsh, mandatory nature of the Federal Sentencing Guidelines. They argued that federal district court judges should have discretion to authorize a punishment that fits the facts and circumstances of the crime and the defendant. Similarly, immigration scholars and advocates criticize the harsh laws that categorically remove lawful permanent residents, even after minor crimes, from the United States. In 2005, in United States v. Booker, the Supreme Court “constitutionalized” the Sentencing Guidelines by rendering them advisory, and returning judicial discretion to federal judges. This Article argues that the similar constitutional, historical, theoretical, societal, and humanitarian policy considerations underlying sentencing and removal support the return of judicial discretion to the removal proceedings of longtime lawful permanent residents. By returning judicial discretion, Congress and the President would “constitutionalize” the deportation process rather than wait for Supreme Court action. The Article concludes with a proposal for legislative reform: “The Longtime Lawful Permanent Residents and Family Unit Relief Act.”

KJ

From the Bookshelves: LONE STAR LAW: A LEGAL HISTORY OF TEXAS by Michael Ariens

LONE STAR LAW: A LEGAL HISTORY OF TEXAS by Michael Ariens

Michael Ariens proves that no state possesses a richer or more surprising legal history than Texas. In narrative as engaging as it is accessible, he has produced an overarching consideration of Lone Star law and legal culture—something notably missing in other Texas histories. After taking readers chronologically from early settlement through 1920, Ariens focuses on particular areas of Texas law, including property, family, business, criminal, and civil harms (tort), and on the history of Texas’s legal profession itself. Through illuminating and utterly Texan particulars, Ariens helps us understand a place at once southern and western, Spanish and Mexican, republic and state.

Here is a a review by Jeffrey B. Robb, J.D., Department of History and Government, Texas Woman’s University.

KJ

CONFERENCE: Refuge from Inhumanity: Enriching refugee protection standards through recourse to international humanitarian law

CONFERENCE Refuge from Inhumanity: Enriching refugee protection standards through recourse to international humanitarian law

February 2013, Refugee Studies Centre, University of Oxford and Refugee Law Initiative, University of London Hosted by All Souls College, Oxford

Introduction

Jointly convened by two leading academic centres, the conference examines the potential of international humanitarian law as a means of enriching refugee protection standards.

International humanitarian law, human rights law, and refugee law are widely regarded as mutually reinforcing branches of international law. However, despite their proximity, the relationship between humanitarian law and refugee law is not fully understood. This paucity of knowledge contrasts sharply with the intense scrutiny to which the relationship of each to other relevant branches of international law has been subjected. On the one hand, human rights law is widely used to interpret and supplement refugee law. On the other, the interaction between humanitarian law and human rights law is a well-established field of enquiry for both academics and practitioners.

The expert contributions envisaged by this conference build upon the increasing current interest in the interaction between different branches of international law. At the same time, the conference breaks new ground through its focus on the relationship between humanitarian law and refugee law. In particular, it aims at taking stock of recent developments with a view to shedding a new light on the inter-penetration of refugee law with (i) jus in bello; (ii) the law of neutrality; and (iii) international criminal law insofar as it punishes acts occurring during armed conflict. The International Committee of the Red Cross and the Office of the United Nations High Commissioner for Refugees have agreed to make substantive contributions to this reflection, which both organisations deem relevant to their mandates and practices.

Conference Scope

Two partly overlapping areas of influence form the object of study:

1. Interpretation of the refugee definition

The first area of influence concerns the interpretation of definitions of the concept of ‘refugee’ in universal and regional instruments, as well as ‘person eligible for subsidiary protection’ in European law. With regard to the interpretation of existing definitions of beneficiaries of international protection, the objective is to take stock of jurisprudence and doctrine, and to stimulate further reflection and convergent State practice, on the meaning of, inter alia:

• Persecution (in Articles 1A(2) of the 1951 Convention and 1(1) of the 1969 OAU Convention) in the light of both Article 3 common to the four 1949 Geneva Conventions, and the Statutes of international tribunals and the International Criminal Court, which include persecution in various contexts, including armed conflict, in the lists of crimes against humanity;

• Concepts from expanded refugee definitions such as external aggression, occupation, foreign domination, events seriously disturbing public order, generalized violence, and internal conflict (in Article 1(2) of the 1969 OAU Convention and/or Conclusion 3 of the 1984 Cartagena Declaration on Refugees) in light of relevant provisions of the law of war;

• Questions about the inclusion of combatants and the possible inclusion of child soldiers, deserters and draft evaders;

• Grounds for exclusion (under Articles 1F of the 1951 Convention and 1(5) of the 1969 OAU Convention), particularly for conduct that breaches the laws and customs of war; and

• Complementary protection provisions such as serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict (in Article 15 of the 2004/2011 EC Qualification Directive) in the light of relevant IHL provisions. These themes will be explored through papers presented by expert participants in two or three panels.

2. Protection obligations of States not engaged in hostilities

The second area of study concerns the clarification of the protection obligations of States not engaged in hostilities towards the displaced victims or potential victims of armed conflict. This second set of issues relates both to:

• The obligations, which the maintenance of neutrality may impose on neutral States upon receiving persons or groups of persons displaced by armed conflict in a neighouring country; and

• The non-refoulement potential of IHL principles and rules, notably those considered part of international customary law, i.e. the extent to which IHL entails a prohibition to return aliens to territories at war in which their lives, physical integrity or personal security would be at risk.

This last area is a resolutely novel step in legal research. Thus far, IHL and refugee or asylum law have largely been read as addressing similar protection concerns, but in entirely different contexts. That IHL may impose non-return obligations on States not directly involved in an armed conflict is not immediately apparent from a plain reading of its provisions – though it can be argued that such obligations are part of the duty to respect and ensure respect for humanitarian standards. In contrast, human rights law has already ‘penetrated’ refugee law significantly, therefore non-refoulement developments in human rights law – including the legal notion of ‘complementary protection’ will serve as a useful reference in this discussion.

These themes will be explored through papers presented by expert participants in two panels.

Expressions of Interest

Experts who wish to participate in the conference should address a written expression of interest directly to the convenors Jean-François Durieux (jeanfrancois. [email protected]) and David James Cantor ([email protected]) at the earliest opportunity.

KJ

GOP Vice Presidential Hopefuls and the Arizona Case

From ABC News:

Republican vice presidential hopefuls weigh in on the Arizona immigration case ruling:

PORTMAN WEIGHS IN ON IMMIGRATION: ABC News’ Gregory Simmons reported on Sen. Rob Portman’s take Monday night on the Supreme Court’s immigration decision, saying  he believed “the federal government has let us down.”  “They still haven’t done it, and so the answer is to have a sensible immigration plan at the national level to help move the country forward,” Portman told ABC News. “That’s something that we need, a new leader.”  Asked if he’s being vetted for the vice presidential spot, Portman did not deny it, saying,  ”I’m happy where I am. I really am. … I’m fortunate to represent our state in the Senate, and that’s where I intend to stay.”  Portman was attending a fundraiser on Romney’s behalf with Rep. Paul Ryan.

RUBIO ON IMMIGRATION: Sen. Marco Rubio released a statement Monday on the Supreme Court’s Arizona immigration law ruling. “Today’s decision on Arizona’s immigration law is a reminder of Washington’s failure to fix our broken immigration system.  If the federal government would do its job and address this issue, states like Arizona would not be compelled to address the violence and lawlessness stemming from the federal government’s dereliction of duty with respect to maintaining the sovereignty of our borders,” Rubio said. “ While I maintain that states do have a constitutional right to pass laws to address public safety issues in their communities, I nonetheless believe the best way to solve the immigration issue is at the federal level.  Rather than have states enact their own unique immigration laws – and then spend precious time and taxpayer money litigating these matters, Washington should act legislatively to secure our border, implement a workable employment verification system, modernize our antiquated visa system  and responsibly address the situation faced by a limited number of young people who were brought here by their parents as children and now find themselves without any legal status in the United States.”

HALEY CALLS AZ DECISION ‘GOOD NEWS’ South Carolina Gov. Nikki Haley called the Supreme Court ruling on the Arizona immigration law “good news for South Carolina,” a state that has a law that allows  police officers to check the immigration status of people who are detained.  “”If the federal government would do its job, the states wouldn’t have to – but that hasn’t happened. In South Carolina, we passed illegal immigration reform that told the rest of the country we’re a tolerant state but also a law-abiding state. That’s what this has been about for us – the rule of law – nothing more, nothing less,” Haley said in the statement.  “Today’s court ruling is in part good news for South Carolina law enforcement. Now, they can do their job and verify that those suspected of being here illegally are actually here legally.” Read more...

bh

Deportation of Immigrant of the Day Armando Tejeda-Soto Halted

I am very happy to report that the government has decided to stop the deportation of Immigrant of the Day, Armando Tejeda-Soto!

When I first took Armando’s case, I was confident that we’d be able to get it closed. The Morton Memo had been issued just a few months earlier and there was a lot of optimism about what it would mean for non-citizens who had been here for many years and who were not enforcement priorities. Armando fit that bill perfectly. He had been here since he was a kid. He had graduated from high school. He furthers the arts in his community and volunteers his time with the elderly. He has tons of family living here lawfully. He doesn’t drink or smoke or do drugs. Armando would have been DREAM Act eligible had that law been passed.

As time went by, we started seeing the shockingly low number of cases that were getting closed. A few strong prosecutorial discretion requests I had submitted were bafflingly denied. I think a consensus was developing among immigration lawyers -- who see wonderful people get deported from this country every single day -- that the Morton Memo may have been nothing more than a ruse designed to get votes. I lost confidence that we’d be able to stop Armando’s deportation. In fact, my earliest prosecutorial discretion request in this case was directed at an ICE officer asking him not to put Armando into removal proceedings in the first place. The response: “We don’t cut anybody loose.” (Note to any policymakers who may be reading this – your guidance is not filtering all the way down). Armando had his first hearing before the Immigration Judge and ICE still didn’t have a decision. Opposing counsel then submitted evidence against Armando designed to show he was here without permission. Things were not looking good.

But, a few weeks ago and thanks to the hundreds of you out there who signed a petition for Armando, government lawyers decided to close Armando’s case. They couldn’t help but conclude that Armando had the backing of his community and that deporting him just does not make any sense. Armando’s case has now been formally closed by the Immigration Judge! What’s more, thanks to the recent DREAM announcement, Armando should be able to get deferred action and work authorization.

Armando and I thank all of you who helped. We also express our gratitude to the unnamed government lawyer in Centennial, Colorado who took the time to read about Armando and make the decision to close his case. You did the right thing. Hopefully, other deserving candidates will receive similar treatment.

-  Patrick Taurel

Death Match 2012: Posner versus Scalia on Scalia's Dissent in Part in Arizona v. United States

Law & Econ icon Judge Richard Posner questions legal, politically, and factually Justice Scalia's dissent in part in Arizona v. United States.  Great stuff!

KJ