Tuesday, April 30, 2013
- Potential applicants were misinformed about the requirements. At the outset, some inaccurately thought they did not qualify. Others inquired and were told that they were ineligible and never learned that requirements (e.g., absences, public charge, reentry with visas) were more liberally construed later.
- Applicants were discouraged or confused by requirements and procedures themselves. Many did not understand the INS outreach and written materials; others who had not worked had a hard time obtaining supporting documents.
- Applicants withdrew when intimidated by the INS interviewer.
- Applicants simply feared and distrusted the INS.
- Slow investigation and approval by the regional processing facilities deterred applicants.
- Many worried their application would expose ineligible family members to deportation.
- Many applicants found the process too expensive (including fees for medical exams, fingerprinting, photographs).
- Many applicants could not find help.
- Some parents incorrectly believed that their children were automatically included in the adults’ applications.
- In spite of outreach efforts by INS and community-based organizations, some potential applicants were unaware of the program until it was too late to apply.
Read more atThe Immigration and Naturalization Service, Community-based Organizations, and the Legalization Experience: Lessons for the Self-Help Immigration Phenomenon, (Download IRCAarticle), 6 Georgetown Immigration Law Journal 413 (1992).
Terrorists and Outlaws by Michael Louis Corrado University of North Carolina at Chapel Hill - School of Law, Preventing Danger: New Paradigms in Criminal Justice, eds. Caianiello and Corrado (Carolina Academic Press, 2013) UNC Legal Studies Research Paper No. 2234531
Abstract: In this paper I continue the discussion, begun in my “Sex Offenders, Unlawful Combatants, and Preventive Detention,” of the indefinite detention of suspected terrorists. I examine recent developments in legislation and executive action concerning suspected terrorists, and in particular the National Defense Authorization Act of 2012.
Passport Pages Tell Our Tale: The Personal Story of a Binational Same-Sex Couple’s Struggle to be Together Under Current Immigration Laws
The Immigration Policy Center has released as part of its Perspectives on Immigration series, Passport Pages Tell Our Tale: The Personal Story of a Binational Same-Sex Couple’s Struggle to be Together Under Current Immigration Laws. Currently in the United States, gay Americans who are legally married are not recognized by the federal government. This impacts these couples in many ways, including how they are treated under immigration law. Numbering 28,500, the U.S. citizen spouses in same-sex, binational couples are not allowed to sponsor their husbands or wives in order to keep them in the country. This Perspectives piece tells the personal story of Judy Rickard and her wife Karins’ work to change the way in which immigration policy treats same-sex couples. It also details the numerous sacrifices they have made along the way.
President Barack Obama agreed to an interview with Americas Quarterly about his May 2-4 visit to Mexico and Costa Rica. President Obama is using the occasion of his trip to meet with the new Mexican President Enrique Peña Nieto and Costa Rican President Laura Chinchilla; while in Costa Rica, he will also meet with the other presidents of Central America. Comprehensive immigration reform in the United States is a topic covered in the interview. Here is an excerpt of the interview:
"I was proud that we lifted the cloud of deportation from young people brought to the United States as children who have come to be called DREAMERS. But that’s no substitute for permanent reforms to the law. We need to fix our broken immigration system to make sure that every business and every worker in United States is playing by the same set of rules. After all, it’s just not sustainable to have 11 million undocumented immigrants from all over the world who are living in the United States. Like the rest of us, they work hard to provide for their families. They make tremendous contributions to our country and our economy. And their status needs to be resolved in a way that’s consistent with our heritage as both a nation of laws and a nation of immigrants.
The bipartisan comprehensive immigration reform bill introduced in the Senate represents a compromise, and no one will get everything they want, including me. But it is largely consistent with the principles that I have repeatedly laid out. We need to continue to strengthen security at our borders and hold employers more accountable if they knowingly hire undocumented workers. We need to provide a pathway to earned citizenship for undocumented individuals in our country. We need to modernize our legal immigration system so that we’re able to reunite families and attract the highly-skilled entrepreneurs and engineers who will help create good paying jobs and grow our economy. I’ll continue to do whatever it takes to make sure that we pass bipartisan commonsense immigration reform as soon as possible, and I look forward to signing it into law."
Supreme Court Decision in Moncrieffe Signifies a Return to Strict Application of the Categorical Approach by Carrie L. Rosenbaum
On April 23, 2013, in a 7-2 decision, the Supreme Court resolved a split among the circuit courts concerning whether a conviction under a state statute that simultaneously criminalizes conduct characterized by both of the Controlled Substance Act (CSA), Section 841’s felony and misdemeanor provisions constitutes a felony conviction under the CSA and necessarily is an aggravated felony for immigration purposes. Moncrieffe v. Holder, No. 11–702, at 4 (April 23, 2013). The Court held that a conviction under state law criminalizing social sharing of a small amount of marijuana is not an aggravated felony because the Georgia statute encompassed intent to distribute without regard to amount, and without respect to remuneration. This was the third time in seven years that the Court held that a low-level drug offense ought not be treated as an aggravated felony for immigration purposes. Moncrieffe at 21.
Rather than find that the sentencing factors set out in the CSA were a mitigating exception and irrelevant to the categorical analysis of the state statute, the Court followed Carachuri-Rosendo in asserting that the Court considers both elements and sentencing factors. Moncrieffe at 10. The Court determined that because felony punishment was not indicated for possession of a small amount of drugs not for remuneration (“social sharing of a small amount of marijuana”) the conviction did not by necessity, involve conduct punishable as a felony, and was therefore, not, categorically, an aggravated felony.
The significance of the decision lies in the strong reaffirmation of a strict application of the categorical approach, consideration of when a criminal statute is not divisible, the prohibition against mini-trials pertaining to the underlying criminal conviction, and the indication that if an offense is categorically not an aggravated felony, this outcome applies uniformly and consistently in removal proceedings, whether the Government is seeking to prove removability, or the immigrant is proving eligibility for relief.
Underlying Decisions and Factual Background
Adrian Moncrieffe grew up in the United States and is the father of two U.S. citizen children. He had immigrated to the U.S. at the age of three from Jamaica. In spite of his long residence in the U.S. and lack of a prior criminal history, his legal right to remain in the U.S. came into question when he was pulled over while driving in his home state of Georgia. Police found 1.3 grams of marijuana in his car – an amount the Court referred to as enough for two or three marijuana cigarettes. Moncrieffe at 3.
Moncrieffe was charged with violating a broad Georgia statute that criminalizes behavior ranging from the social sharing of a small amount of marijuana, to distribution of large quantities of marijuana for remuneration. Moncrieffe pled guilty and successfully completed the required probationary term. He was not immediately put into immigration custody, but instead, two years later, immigration officials arrested, detained him, and initiated removal proceedings alleging his conviction amounted to an aggravated felony as “illicit trafficking in a controlled substance” and a therefore a “felony” under the CSA, triggering not only removability, but a prohibition from relief from removal.
The Immigration Court held that the conviction was an aggravated felony and ordered him removed. The BIA affirmed. The Fifth Circuit denied the petition for review following precedent of its own circuit but in contradiction with the Second and Third Circuits finding that where there is no finding of drug quantity or remuneration the state criminal conviction is not an “aggravated felony.”
The Supreme Court’s Analysis
The Court explained that in applying the categorical approach to determine if an offense is an aggravated felony the analysis requires comparison of the state statute to a generic federal offense that constitutes an aggravated felony in the INA. Moncrieffe at 4-5 (citing Nijhawan v. Holder, 557 U.S. 29, 33-38 (2009); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 187 (2007)). Further, the question is whether the state offense “necessarily” “involve[d] facts equating to [the] generic [federal offense],” pursuant to Shepard v. United States, 544 U.S. 13, 24 (2005)(plurality opinion), rather than the underlying conduct. The court applying the test is to compare the generic definition and look to whether the least culpable conduct under the statute would meet that generic definition. Moncrieffe, at 5 (citing Johnson v. United States, 559 U.S. 133, 137 (2010) (emphasis added)).
Moncrieffe was convicted under the Georgia state code criminalizing possession of marijuana with the intent to distribute. Section 16-13-30(j)(1)(2007). For the Georgia statute to be an aggravated felony under the categorical approach the state drug offense had to both proscribe conduct that is an offense under the CSA, and the CSA had to prescribe a felony punishment. Moncrieffe at 6. While Moncrieffe was convicted of possession with intent to distribute, the question was whether that conduct was punishable as a felony or misdemeanor under the CSA. The least culpable conduct (essentially, social sharing of a small amount of marijuana) triggered the misdemeanor punishment, but still could result in a conviction under the state statute.
The Georgia state statute was broad enough to result in felony or misdemeanor punishment as characterized by the INA. Pursuant to its holding in Carachuri-Rosendo, in considering the elements of the statute plus sentencing factors, Moncrieffe had not been convicted of an aggravated felony under the INA. Moncrieffe at 10. The Court clearly articulated the requirement that “not only must the state offense of conviction meet the ‘elements’ of the generic federal offense as defined by the INA, but the CSA must punish that offense as a felony.” Moncrieffe at 10 (emphasis added). The Court disagreed with the Government’s argument that possession with the intent to distribute under the statute was presumptively a felony, concluding that the felony provision is not the default.
The Court found that the ambiguity created by Moncrieffe’s conviction meant that the conviction did not “necessarily” involve facts that correspond to, or were a categorical match with the felony offense under the CSA. Moncrieffe at 9. Where a noncitizen’s “conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony under the INA.” Moncrieffe at 15 (emphasis added).
While the Government also called for application of the categorical approach, they failed to succeed in convincing the Court that Section 841(b)(4)’s misdemeanor provision was irrelevant to the categorical approach because it created a “mitigating exception,” and was not an element of the CSA offense. The Court also rejected the Government’s contention that because possession with intent to distribute was “presumptively a felony” under the CSA, any state offense with the same elements was an aggravated felony. Moncrieffe at 10. By the Government’s reasoning, any offense criminalizing distributing marijuana would be punishable as a felony, even where the amount was small and there was no remuneration. Moncrieffe at 14. Such an interpretation would effectively read the misdemeanor possibility entirely out of the statute, because even if convicted under Section 841(a) and (b)(4), the federal misdemeanor conviction would have to be treated as an aggravated felony.
In rejecting mini-trials the Court emphasized the principle that the categorical approach asks not what the individual did, but what they were convicted of in criminal proceedings. Moncrieffe at 15. The Court characterized relitigating underlying criminal convictions as unnecessarily burdensome on immigration courts and unfair to immigrants because of challenges caused by the need to locate witnesses potentially years after the original criminal trial, while potentially detained, and likely without representation. Moncrieffe at 16. Moreover, in the context of criminal statutes like Georgia’s, mini-trials would become the norm because most states do not have separate statutes criminalizing social sharing of marijuana. Moncrieffe at 18.
The Court was also not persuaded by the Government’s contention that if the Court found that the elements and sentencing factor approach applied in the categorical analysis and the offense was categorically not an aggravated felony, all immigrants would escape deportation. Avoiding an aggravated felony does not eliminate other criminal grounds of removability. Additionally, the existence of an offense can be considered as a matter of discretion in granting relief from removal. Moncrieffe at 19. The Court characterized the Government’s reading of the categorical approach as narrow, and stated that the solution it proposed undermined the categorical approach itself. Moncrieffe at 18-19.
Significance of the Ruling
The most important aspects of the Court’s ruling concern the strict adherence to the categorical approach, the applicability of this strict approach in all phases of removal proceedings, and the prohibition against mini-trials pertaining to the underlying criminal conviction.
Strict Application of Categorical Approach
Because under the categorical approach, the inquiry into whether an offense is an aggravated felony is strictly legal, the Court indicated that it is not appropriate to delve into the facts pertaining to the conduct of the immigrant. This reasoning suggests that the standard established by Sandoval-Lua v. Gonzales was correct, and the Ninth Circuit’s ruling in Young v. Holder is no longer the standard. Sandoval-Lua, (499 F.3d 1121 (9th Cir. 2007); Young v. Holder, 697 F.3d 976, (9th Cir. 2012) (en banc).
The ruling also sends a message that immigration courts and the BIA may not apply a less strict version of the categorical approach in immigration proceedings as described by the Matter of Lanferman. The Lanferman court proclaimed that immigration courts do not need to apply the categorical approach as strictly in immigration court as in criminal court. It also held that the court may consider facts from the record regardless of the criminal statute if based on the elements, some, but not all violations of the statute create grounds of removability (or ineligibility for relief). Matter of Lanferman, 25 I&N Dec. 721, 724, 728 (BIA 2012). Both of these views are now questionable.
A strict adherence to the categorical approach also has implications for the Ninth Circuit’s ruling in United States v. Aguila-Montes de Oca, where the Ninth Circuit held that in applying the categorical approach, in some cases, the court can consider certain findings from the underlying criminal case, even where that evidence pertains to a fact not required for guilt under the statute. 655 F.3d 915, (9th Cir. 2011)(en banc). The Moncrieffe decision seems to overrule this invitation per Aguila-Montes de Oca to refer of evidence pertaining to a non-element fact. The decision limits the categorical approach inquiry to the elements and sentencing. Thus if the “missing element” rule is essentially reinstated per this decision, some statutes, like the one at issue in Moncrieffe, will not carry adverse immigration consequences, and the immigrant will not have to produce evidence proving they did not commit an aspect of the offense that otherwise, under Aguila-Montes de Oca, may have held adverse immigration consequences.
Strict application of the categorical approach also means no mini-trials. The decision highlights the inappropriateness, and unfairness of retrying noncitizens for the underlying criminal offense in immigration court by requiring them to produce evidence pertaining to the criminal offense.
The Court’s ruling with respect to the outcome where the immigrant is convicted under a criminal statute where the record is not conclusive as to which specific offense was at issue suggests a departure from the Ninth Circuit’s ruling in Young v. Holder, and a return to Sandoval-Lua v. Gonzales where if the record is vague, the immigrant is eligible for relief. Young v. Holder, 697 F.3d 976 (9th Cir. 2012); Sandoval-Lua v. Gonzales (499 F.3d 1121 (9th Cir. 2007). The Court made clear that their analysis pursuant to the categorical approach applies in the contexts of both proving removability, and eligibility for relief. Moncrieffe at fn. 4.
While this decision indicates that social sharing of a small amount of marijuana is not an aggravated felony, it broader implications and subtleties that practitioners will be analyzing in the months to come. In the coming weeks the Court is also expected to rule on Descamps v. U.S., and although it is a criminal case, that upcoming ruling may have additional implications for noncitizens in removal proceedings.
by Carrie L. Rosenbaum, Adjunct Professor of Immigration Law at Golden Gate University, J.D. U.C. Davis School of Law
Monday, April 29, 2013
5. Radio Shack
8. Big Lots!
12. Sara Lee
14. Kraft Foods
16. Procter & Gamble
Last Tuesday, the Supreme Court decided Moncrieffe v. Holder, which held that a conviction under a Georgia law for possession of a small amount of marijuana not for sale was not an "aggravated felony" barring a lawful permanent resident relief from removal. Lyle Denniston offered a recap of the decision on SCOTUSblog.
"What if there was a program that would cost nothing, improve the lives of millions of people from poorer nations, and double world GDP? At least one economist says that increased mobility of people is by far the biggest missed opportunity in development. And an informally aligned group of advocates is doing its best to make the world aware of the `open borders' movement, which suggests that individuals should be able to move between countries at will."
Sunday, April 28, 2013
Immigration Article of the Day: The Perverse Logic of Immigration Detention: Unraveling the Rationality of Imprisoning Immigrants Based on Markers of Race and Class Otherness by César Cuauhtémoc García Hernández
The Perverse Logic of Immigration Detention: Unraveling the Rationality of Imprisoning Immigrants Based on Markers of Race and Class Otherness by César Cuauhtémoc García Hernández, 1 Colum. J. Race & L. 353
In an effort to explain the massive growth of immigration imprisonment, this Essay explores the use of race and class as tools for policing immigration law. The Essay does this by contemplating the effect of an immigration law scheme that, at its most fundamental, requires sorting desirable immigrants from undesirable immigrants, and that, in recent years, has accomplished this sorting through increased reliance on criminal records. Placing these two features of contemporary immigration law within the context of two decades-old forms of indisputably racialized policing—mass incarceration of black and brown people for criminal law violations and the Supreme Court’s sanctioning of racial profiling in immigration law policing—the Essay concludes that it was inevitable for penal imprisonment trends to taint immigration law enforcement with raced and classed mass incarceration.
Saturday, April 27, 2013
Mike is a friend who was born in Michoacán, Mexico. He lived there with his three brothers and parents. Life was hard. They all worked in the fields picking tomatoes, onions, and peppers to make ends meet. One year, when Mike was 12, he had to skip school for the year so that he could help his family pick vegetables and make money.
When Mike was about 15 an American man—a smuggler or coyote-- as they are often called, came to the town his family lived in and told them about a wonderful opportunity. The man spoke excellent Spanish, but was white. He offered to take them across the border into America for $6,000. Mike’s older brothers went first. Three years later, Mike had saved enough money to be able to go. He said he was not scared at all because his two older brothers were already there. His parents did not want to go at the time.
When the day came for Mike to make the journey to America the coyote came to his house and picked him up in his car. The coyote had already made an agreement with the border patrol. According to Mike the plan was that he had paid them to not look in the trunk of his car when they drove across the checkpoint. When they were in Tijuana, Mike got in the trunk of the car and they drove across the border without a problem. The coyote drove Mike to a house in San Diego. They arrived in the middle of the night and Mike had no contact with the family who lived there. As far as he knows it was a friend or business partner of his coyote. He went directly into a room in the house and waited there for about 6 hours. After that someone came and drove him to Los Angeles. He waited in another anonymous house there overnight until his brother, who was living in Concord, drove down and got him. His brother paid the coyote and drove Mike back to his place in Concord, California.
Mike works as a line cook in a restaurant. He knew no English at all when he arrived, nor how to cook. His brother was a manager at the restaurant, which is how he got the job. The restaurant never asked for any documents or papers that would show Mike was here legally and permitted to work. He pays taxes and started his job at minimum wage. He has been there for about 7 years, and now makes $12/hour.
For most of the past seven years, Mike has worked at two restaurants simultaneously to pay his bills. He usually works at one restaurant from 9:30-3:30 and then the second one from 4- 10, five days a week. On his days off he does laundry, relaxes, plays soccer, or hangs out with friends near his complex. He does not have any American ID or passport. He uses his Mexican ID when necessary. He knows how to drive but cannot get a driver’s license here so he takes BART, bikes or walks. He also now has a debit card, but before he got it he notes that at one point he had up to $10,000 in cash in his apartment.
He has learned his English almost totally through work. He took a class when he first arrived because he did not know any English, but he thinks he learns more from hearing and speaking it at work.
Mike works hard, but when asked if he regrets the choice to come to America he vehemently shakes his head no. While he has to work long and hard here, he says the work in Mexico was much harder because of the physicality it required. He said that a whole day’s work picking vegetables in the sun made his family the equivalent of $11.
Mike’s other brother was here in the U.S., but was deported about 5 years ago. He was pulled over in Walnut Creek, CA and the police found drugs and guns in the car. He was in jail for some time, but Mike doesn’t know how long because he was not able to visit him because he had no papers. He did not have a phone at the time either so he was not able to speak with him. His brother wants and plans to come back. Mike worries that if his brother comes back and is caught, he will face up to ten years in prison because of his prior felony.
Mike is so grateful to be here. He misses his parents and brothers, but feels that his life here is worth the sacrifice. He works very hard, but I have never heard him complain once. He smiles and simply says he needs to work to pay his bills! He has no resentment towards Americans or about the fact that he may never be able to have a career that he enjoys because of his status. When I ask him what he would do if he could have any job he is so caught off guard all he does is smile and say that he would have to think about that.
Friday, April 26, 2013
Who: Committee of former workers from Dobake Bakeries, Inc.
What: Fired workers from Dobake Bakeries, Inc denounce silent raid, I-9 audit.
When: Monday April 29th, 2013, 11:00 AM
Where: Dobake Bakeries, 810 81st Avenue, Oakland, CA 94621-2510
125 employees have been fired supposedly as a result of a I-9 immigration audit. Many of them did not receive a warning until the very last minute at the end of their shift. Some of them had been working in the company for 10,15 or more than 20 years. Dobake Bakery Inc provides among many others bread to the Oakland Unified School District, Costco, Trader Joe´s, Food Max, Grocery Outlet, Safeway, etc.
The U.S. Immigration and Customs Enforcement ("ICE") hit the highest record of more than 3,000 audits in 2012. All indicators point to a new record in 2013. The "hope" for an immigration reform gets all the attention while "La migra" keeps attacking our communities implementing silent raids. The Obama´s administration also has inflicted record numbers of deportations of immigrant workers.
Former workers of this Bakery will share with the media how the I-9 audit was implemented while they were negotiating their contract that expired since November 2012. In the press conference they will also talk about their experience with Dobake Bakery and the response of their union, BTCGM Local 125.
EX EMPLOYEES FROM DOBAKE MARCHING ON MAY DAY!
On May 1, 2013, the committee of former workers fromDobake will join the contingent of the Coalition of Dignidad yResistencia Latina, a coalition of activist and organizations in defense of immigrant rights which supports and stands in solidarity with the workers struggles.
The Dignity and Resistance contingent will meet at Fruitvale Village Plaza/BART -3411 E. 12th St., Oakland, CA, 94601- at 3pm and march to Mi Pueblo (1630 High St, Oakland, CA) and then will close the march in Josie de la Cruz Park (Fruitvale Ave, between16th & 17th St, Oakland, Ca)
We invite all workers - employed and unemployed, unionized and not unionized- to join us in a family friendly, community inclusive of the D&R Latina´s contingent.
For more information call:
English: Julio César Oros (Tel. 510 200 4020) firstname.lastname@example.org
Spanish: Eduardo Rodríguez (Tel. 510 585 1354) email@example.com
Who are you? And why are you leaving your home? Is it freedom, dignity, or happiness that you seek? And are you privileged enough to find a legal way to escape your poverty? Or did you bribe that corrupt man at the embassy that holds your whole world in his hands? Don’t worry, he once held mine too.
Or must you fight again? And endure a long road of trials and tribulations to claim your chance for a better life? If so, be careful. Your journey might cost you a piece of your soul. But before you begin your journey, before you kiss your daughter goodbye just one last time, know what your destination will be like. So, pay attention.
Once here, you will be immersed in a culture that will absolutely criminalize you for being an immigrant. The misery you bear will only give you the name of criminal, which I know you are not. You will be persecuted by many for your race. Your accent. Your looks. Your gender. Your religion. Freedom carries a different look. Sometimes it comes in shackles in detention camps.
And are you perhaps seeking refuge? Be careful with that. Is your truth believable enough? Different enough? Convincing enough? If your reality lacks originality, you might (just might) be denied protection. And you will be sent back to the horrors of your world. War. Or lack of hope. I don’t even know which is worse. But don’t worry, the person sitting on the other side of the table during your interview probably has extensive academic knowledge of your country. And that should be enough, right?
What’s that? Have they ever hidden in basements to escape massacre? Do they know what fear feels like when police officers knock on your door at 3 am to arrest you for being born in the wrong country? Were they castrated as a form of punishment and then ostracized by their community? Do they hide from fireworks because it reminds them too much of the bullets that killed their fathers?
Well, maybe. Probably not. I don’t know, but it doesn’t matter. Just make sure your truth is believable. Watch your demeanor. Speak up. Forget everything your mother taught you about manners, and look at people straight in the eyes when you speak. It’s ok. That is not disrespectful. And that trauma you are hiding from the world, and from yourself, do you remember that one? I know you are trying to move past the horrors life has caused you, and I’m so sorry for that. But you need to remember your pain. If you don’t, no one will.
Also, whenever someone commits a crime here in this country, remember to get on your knees and pray, hard, to whomever you believe in, that this person is not your color, is not from your country, or your religion. Because the actions of a complete stranger, a thousand miles away, are a direct reflection on your identity. You will end up paying for it. If you are unlucky, and it so happens that this stranger is in fact a reflection of you, you will have to learn how to apologize. But I beg of you, please, DO NOT APOLOGIZE. Here, they apply success to individuals, and failures to a group. When one succeeds, it is because of the fruit of their hard work. When they fail, it is because they are part of a certain culture.
Yes, unless they are Native Americans, everyone here is an immigrant. Or a child of immigrants. But how quickly they forget their flaws. They have yet to learn from history. And their own mistakes. They inflict upon others, that which they once fled.
Has anyone told you about raids yet? That’s when enforcement officials will come to your job, unannounced and arrest hundreds of people. Yes, forget that you are a hard worker trying to earn a dignified living, supporting your family. Persecutions exist everywhere, they just come in different colored uniforms. Dignity might escape you sometimes. And if you ever loose sight of it, remember to look into your daughter’s eyes. There, you will always find yourself.
Have you learned how to say goodbye to your loved one? You should. Teach your lips to kiss goodbye. It will leave a bitter taste afterwards. But it is necessary because it might be the last thing your daughter remembers of you. Because one day, you might be stopped at a traffic light. You will be detained, and not allowed to see her for months. Or years. She will probably not know where you are either, and she will be very worried. So please, for her sake and yours, learn how to say goodbye to your loved one. Everyday. Don’t let happiness lose its worth.
But it’s alright. Don’t misplace your hope. You stand on the shoulders of giants. There are countless of us who are fighting for things to be better. And things will be better. I know you will never forget the wounds life inflicts upon you. Promise me this, teach your daughters about your scars. Once an immigrant, always an immigrant. Wear it like a badge of honor. And never ever apologize for it. Your struggles will never be devalued in the eyes of the millions of people who are here, who once were just like you, not too long ago. They are waiting for you to join them. They too have learned to kiss goodbye.
Too much will be asked of you. Prepare to give.
Once an immigrant, always an immigrant
Earlier this month, ImmigrationProf reported that The Associated Press announced that its Stylebook would eliminate use of the term “illegal immigrant.” Earlier this week, the New York Times updated its policies on how it uses the phrase “illegal immigrant” but did not go as far as AP. It will allow the phrase to be used for “someone who enters, lives in or works in the United States without proper legal authorization.” But it encourages reporters and editors to “consider alternatives when appropriate to explain the specific circumstances of the person in question, or to focus on actions.” Still, the Timnes is moving in the right direction.
In conjunction with Americans for Tax Reform, the Partnership for a New American Economy and the National Immigration Forum Action Fund released poll findings today showing strong support among Republicans – and Americans generally – for the Senate Gang of Eight’s bipartisan immigration reform bill that was introduced last week. After hearing a detailed description of the “Border Security, Economic Opportunity, and Immigration Modernization Act,” in addition to common arguments from both proponents and opponents, 67 percent of Republican respondents said they supported the legislation – with 74 percent of Americans overall expressing support for the bill. Full survey results are available here.
From the Bookshelves: We Became Mexican American: How Our Immigrant Family Survived to Pursue the American Dream by Carlos B. Gil
This is a story of Mexican family that arrived in America in the 1920s for the first time. And so, it is a tale of immigration, settlement and cultural adjustment, as well as generational progress. Carlos B. Gil, one of the American sons born to this family, places a magnifying glass on his ancestors who abandoned Mexico to arrive on the northern edge of Los Angeles, California. He narrates how his unprivileged relatives walked away from their homes in western Jalisco and northern Michoacán and traveled over several years to the U.S. border, crossing it at Nogales, Arizona, and then finally settling into the barrio of the city of San Fernando. Based on actual interviews, the author recounts how his parents met, married, and started a family on the eve of the Great Depression. With the aid of their testimonials, the author’s brothers and sisters help him tell of their growing up. They call to memory their father’s trials and tribulations as he tried to succeed in a new land, laboring as a common citrus worker, and how their mother helped shore him up as thousands of workers lost their jobs on account of the economic crash of 1929. Their story takes a look at how the family survived the Depression and a tragic accident, how they engaged in micro businesses as a survival tactic, and how the Gil children gradually became American, or Mexican American, as they entered young adulthood beginning in the 1940s. It also describes what life was like in their barrio. The author also comments briefly on the advancement of the second and third Gil generations and, in the Afterword, likewise offers a wide-ranging assessment of his family’s experience including observations about the challenges facing other Latinos today.
Noncitizens have long been barred from serving on juries as well as voting, both of which have been reserved for U.S. citizens. This has significant justice system impacts in areas with high concentrations of immigrants, such as California, New York, and Florida. The Sacramento Bee reports that immigrants lawfully residing in California would be eligible for jury duty under a bill passed by the Assembly yesterday. Current state law allows only U.S. citizens to serve on juries. However, the state Constitution does not bar immigrants from jury service. Assembly Bill 1401 would no longer exclude "lawfully present immigrants" from jury lists. The bill was written by seven Democrats on the Assembly Judiciary Committee, including the chairman, Assemblyman Bob Wieckowski, D-Fremont. "You are not required to be a citizen to participate in the judicial process as a party, as a witness, to work for the courts or even be a judge," said another author, Assemblyman Luis Alejo, D-Watsonville. "It's only a requirement to be a juror. It's not a requirement to be a citizen to serve in the military, either."
America's Incoherent Immigration System by Stuart Anderson National Foundation for American Policy January 1, 2012 Cato Journal, Vol. 32, No. 1, 2012
Abstract: If the U.S. Congress and executive branch agencies formulated coherent policies, then here is what our immigration system would look like: highly skilled foreign nationals could be hired quickly and gain permanent residence, employers could hire foreign workers to fill niches in lower-skilled jobs, foreign entrepreneurs could easily start businesses in the United States, and close relatives of American citizens could immigrate in a short period of time. If all those things were true, then we wouldn’t be talking about America’s immigration system. Many myths dominate perceptions about immigration. Perhaps the most common myth is that it’s easy to immigrate to America. Often when discussing illegal immigration, a TV commentator will say, “Well, they should just leave the country and come back in legally.” An astute viewer would ask themselves: “If it was that easy, then why would they have risked their lives crossing that desert in the first place?” In fact, as will be discussed, while immigrating legally in highskilled fields, as an entrepreneur, or as a family member is not easy, it is particularly difficult to obtain a legal visa for “lower-skilled” jobs.
Thursday, April 25, 2013
Unconstitutional Medical Repatriation: How U.S. Hospitals Are Secretly Deporting Critically Ill Immigrants
Most Americans have never heard of medical repatriation, a practice by which U.S. hospitals deport critically ill or injured immigrant patients to medical facilities in their home country. These deportations are often carried out without the consent or knowledge of the courts, and via the use of private planes and ambulances that carry the sick, who are often unable to object.
A recently released report conducted by the Center for Social Justice at Seton Hall Law School and New York Lawyers for the Public Interest reveals that over 800 cases of successful or attempted medical repatriation have occurred across the United States over the past six years. The afflicted patients range in age and nationality. Many receive their injuries on the job, working for American employers and clients, like Quelino Ojeda Jimenez, an immigrant from Mexico. Jimenez, who traveled to the United States as a teenager in the hopes of finding work to support his family, fell over 20 feet and awoke at a hospital on a ventilator. After 16 weeks, the hospital removed Jimenez from the ventilator. Unable to speak, he could do no more than cry as he was transported to a gurney, then to an impoverished hospital in Mexico, where he would languish for a year before his death.
Why is this happening? Two reasons. First: hospitals are only required to care for the ill until they are “stabilized”, a term which U.S. courts have held is not equivalent to “stable condition.” That means a person who requires critical ongoing care may be considered “stabilized,” thus concluding the duty of care owed by the hospital. To fully understand the distinction, consider the story of Marlene, a 19-year-old Arizona teenager who once dreamed of becoming a police officer. Two months before her high school graduation, Marlene was shot by a family member and rushed to a hospital. Marlene was stabilized, but soon developed a fever, severe intestinal infection, and pneumonia. Although her family begged the hospital to delay the transfer so that Marlene could get a “U-Visa” (which provides legal status for victims of serious crimes), the hospital maintained that she was stable to travel. Wheeling her through a back entrance normally reserved for garbage removal, Marlene left early in the morning and arrived at a Mexican hospital before supper time. She died the next morning, after being diagnosed with septicemia, pneumonia, and meningitis.
On top of this, most immigrants cannot afford private health insurance and are ineligible to receive benefits, making them less-than-desirable patients for funding-strapped hospitals. Immigrant patients who lack lawful status or have been a legal permanent resident (LPR) for fewer than five years are not eligible for federal healthcare benefits. Combine this denial of assistance with exploitative employers, low wages, and physically demanding jobs, and you have a recipe for disaster.
The Fifth and Fourteenth Amendments of the Constitution protect all persons from being deprived of life, liberty, and due process of law; our Supreme Court has long held that unlawful immigrants are persons. Additionally, the power to deport immigrants rests in the hands of the federal government, not the states and certainly not local hospital staff. With the standard procedure for deportation known as an order of removal, immigrants retain the right to appeal to the courts. With medical repatriation, patients have no recourse. People like Jimenez and Marlene have no power and no voice in their own destinies.
How can we stop hospitals from illegal, unconstitutional deportations? The first step is to ask Congress to enact laws punishing hospitals that practice medical repatriation. Without harsh penalties in place, hospitals may not be incentivized to halt the practice or at the minimum, ensure that patients are truly stabilized before transporting people in dangerous conditions. We must spread the word among local politicians, and ask hospitals to train staff in the intricacies of working with immigrant populations. The removal of bars to Medicaid would encourage hospitals to improve the standard of care given to the undocumented.
One of the most recent victims of medical repatriation was a two-day-old U.S. citizen named Elliot. After two weeks in the neonatal intensive care unit, hospital authorities informed Elliot’s mother that he would be transferred to a hospital in Hermosillo, Mexico. A local lawyer, thinking quickly, had Elliot’s mother transfer custody of him; he then called 9-1-1 and informed police that a kidnapping was taking place. Then he called the hospital and told them his consent would be required to transfer Elliot. The police arrived at the airport just in time to stop the flight.
Elliot’s story has a happy ending—as a U.S. citizen, he was approved for Medicaid. Due to a compassionate lawyer, his family remained together. Perhaps, by asking our local senators, Congress, and state officials to hold hospitals to a higher standard, we can save lives and stop this illegal practice.