Thursday, July 31, 2014
Lawsuit charges U.S. is denying citizenship to Muslim immigrants due to secret, unfounded ‘national security concerns’
Five people who have lived in the United States legally for decades filed a lawsuit today challenging a little-known government program that is being used to deny thousands of law-abiding people citizenship, green cards, asylum, and visas on counterterrorism grounds – most of them from Muslim-majority countries. Like people who find themselves in the government’s watchlist system, immigrants whose applications are denied under the program do not find out why or have a meaningful opportunity to respond.
The suit was filed by the American Civil Liberties Union Foundation of Southern California, the national ACLU and the law firms of Jones Day and Stacy Tolchin. It charges that the program violates immigration law, and is unconstitutional because it was adopted without any congressional approval and violates the Fifth Amendment’s guarantee of due process.
The U.S. Citizenship and Immigration Service (USCIS), part of the Department of Homeland Security, reviews and adjudicates immigration applications. In 2008, the agency unilaterally adopted the Controlled Application Review and Resolution Program (CARRP), which prohibits USCIS field officers from routinely approving an application with a potential “national security concern.” They must instead deny the application or delay a final determination, often indefinitely. The plaintiffs’ immigration applications have been pending for as long as 14 years, even though the process is only supposed to take no more than six months.
“Our clients are long-time, law-abiding residents of the United States who, for years, the government has walled off from becoming citizens and lawful residents of this country without legal authority to do so,” said Jennie Pasquarella, a staff attorney with the ACLU SoCal. “Under this unfair and unconstitutional program, the government has blacklisted their applications without telling them why and barred them from upgrading their immigration status in violation of the immigration laws.”
CARRP’s definition of a “national security concern” is far more expansive than the ineligibility criteria specified by Congress in the Immigration and Nationality Act, which USCIS is required to follow. For example, CARRP automatically covers anyone whose name is on the government’s Terrorist Watch List, which has been reported to include close to a million names. Also last week, the government guidelines for including people on the watchlist were leaked, showing that the standards are vague and overbroad, particularly for non-citizens. The document showed that a person could be added to the list simply because he or she is “associated” with someone already on the watchlist, and even if the government does not have reliable information about that person’s activities.
Although USCIS has not revealed the total number of people who have been subject to CARRP, the agency’s data reveals that between fiscal years 2008 and 2012, more than 19,000 people from 21 Muslim-majority countries or regions were subjected to the program.
“CARRP’s definition of a ‘national security concern’ is far broader that any national security bar to immigration benefits set forth in the law,” said Stacy Tolchin, of the Los Angeles-based Tolchin Immigration law firm. “It is the imperative of Congress, not USCIS, to set the standards for who can become American citizens or legally immigrate to this country.”
“It’s deeply problematic that USCIS has a secret program identifying people as national security concerns based in part on their inclusion in the government’s flawed watchlist system,” said Hugh Handeyside, staff attorney with the ACLU National Security Project. “The watchlist system is composed of overbroad, exception-ridden standards that inevitably result in many individuals, like our clients, being blacklisted even though they are wholly innocent of wrongdoing.”
The case, Muhanna, et al. v. USCIS, et al., was filed in U.S. District Court in Los Angeles.
Learn more about the case and our plaintiffs.
Download the report Muslims Need Not Apply.
Thanks to advocacy by the New York Civil Liberties Union, the New York State Sheriffs’ Association has advised all sheriffs across the state to stop imprisoning people without a warrant just so federal agencies can investigate them for immigration purposes. In response to the Sheriffs’ Association guidance, at least nine counties have stopped honoring federal government requests that they jail people who have been arrested after they would have otherwise been released. For the New York Times report, click here.
The U.S. Court of Appeals for the Ninth Circuit ordered that Maldonado v. Holder be heard en banc. The case was submitted on the briefs in December 2013, then the panel, without issuing a decision, issued this order in April:
"Pursuant to General Order 5.4(c)(3), the parties are directed to file simultaneous briefing setting forth their respective positions on whether this case should be heard en banc. The parties’ briefs shall address: (1) whether there is a conflict in our case law between Perez-Ramirez v. Holder, 648 F.3d 953, 958 (9th Cir. 2011), and Hasan v. Ashcroft, 380 F.3d 1114, 1123 (9th Cir. 2004), regarding which party bears the burden of proof on internal relocation; and (2) whether Hasan and Lemus-Galvan v. Mukasey, 518 F.3d 1081, 1084 (9th Cir. 2008), improperly elevated the burden of persuasion by requiring that a CAT petitioner establish that internal relocation is `impossible.' The parties shall file their briefs no later than April 30, 2014."
The briefs in the en banc case can be found here. Petitioner claims that the circuit's decisions on the burden of proof on the issue of the possibility of relocation in a Convention Against Torture case are in conflict. It appears that the U.S. government contends that that en banc review was not justified because one of the Ninth Circuit decisions was simply incorrect.
Another hat tip to Cappy White!
Congressional Research Service: Unaccompanied Alien Children - Legal Issues: Answers to Frequently Asked Questions
The Congresssional Research Service has released this FAQ about unaccompanied immgrant children:
"Recent reports about the increasing number of alien minors apprehended at the U.S. border without a parent or legal guardian have prompted numerous questions about so-called unaccompanied alien children (UACs). Some of these questions pertain to the numbers of children involved, their reasons for coming to the United States, and current and potential responses of the federal government and other entities to their arrival. Other questions concern the interpretation and interplay of various federal statutes and regulations, administrative and judicial decisions, and settlement agreements pertaining to alien minors. This report addresses the latter questions, providing general and relatively brief answers to 14 frequently asked questions regarding UACs."
Abstract: This article appraises the state of immigration federalism in the wake of Arizona v. United States and argues that we continue to have a national interest in working out difficult moral and public policy matters like immigration through the institutions of federalism, even if doing so means accepting conflict. Federalism should play a role in immigration policy for at least three reasons. The diversity of state and local approaches to both enforcement and integration reflects legitimate ideological disagreement; state and local governments face institutional imperatives that cause their interests to sometimes diverge from the federal government’s; and a federalist debate can help check, curb, and improve federal policy. Partisans will not be satisfied with all outcomes at the state and local level, but a uniform or even ideologically consistent approach to managing migration will be elusive.
BRUSSELS — Driven in part by societal norms that emphasise diversity, equality and social responsibility, policymakers in the United Kingdom for decades have been committed to fighting discrimination whilst promoting social mobility and cohesion for the country's large ethnic minority population, many of whom trace their origins to former British colonies. At the same time, even as immigration has been a hot-button topic for publics and policymakers, there has been little discussion and policy development around immigrant integration and even less targeting specific immigrant groups in the United Kingdom.
A new Migration Policy Institute Europe report, Advancing outcomes for all minorities: Experiences of mainstreaming immigrant integration policy in the United Kingdom, examines the accelerating trend toward a 'mainstreaming' of integration in the United Kingdom, in which policymakers seek to reach people with a migration background through needs-based social programming and policies that also target the general population. The report, by Ben Gidley and Sundas Ali at the Centre on Migration, Policy and Society (COMPAS) at the University of Oxford, focuses on the policies aimed at immigrant youth, particularly in education and social cohesion.
In the United Kingdom, ethnicity and race have been the main focus in many policy areas of British multicultural society rather than migrant status or background. In addition to an increasingly decentralised approach in education and social cohesion policies in particular, this has fuelled a locally based mainstreaming approach that subsumes integration within broader concerns about race relations and equality.
'While the United Kingdom's commitment to mainstreaming at the local level has been productive from a social cohesion perspective, these policies can obscure the real disadvantages and challenges facing particular migrant groups within the country', said MPI Europe Director Elizabeth Collett. 'This is particularly clear in the experiences of immigrant youth, whose educational performance varies considerably across different populations'.
Although UK policymakers tend not to target immigrant youth as a group requiring specific integration support, governmental and civil-society actors in the report's two diverse case-study cities, London and Glasgow, have made promising efforts to advance inclusion and improve educational outcomes for young people with a migration background. These efforts might serve as a model for other cities in the United Kingdom and across Europe looking to balance mainstreaming with effective targeting on a local scale.
This report, supported by a research grant from the Dutch Ministry for Social Affairs and Employment, is the second in a comparative research project conducted in collaboration with COMPAS and Erasmus University in Rotterdam. It will be followed by the release of in-depth studies of Denmark, France and Germany over the coming weeks.
Wednesday, July 30, 2014
Immigration Article of the Day: There and Back Again: On the Diffusion of Immigration Detention by Michael Flynn
From Mexico to the Bahamas, Mauritania to Lebanon, Turkey to Saudi Arabia, South Africa to Indonesia, Malaysia to Thailand, immigration-related detention has become an established policy apparatus that counts on dedicated facilities and burgeoning institutional bureaucracies. Until relatively recently, however, detention appears to have been largely an ad hoc tool, employed mainly by wealthy states in exigent circumstances. This paper uses concepts from diffusion theory to detail the history of key policy events in several important immigration destination countries that led to the spreading of detention practices during the last 30 years and assesses some of the motives that appear to have encouraged this phenomenon. The paper also endeavors to place the United States at the center of this story because its policy decisions appear to have played an important role in encouraging the process of policy innovation, imitation, and imposition that has helped give rise to today’s global immigration detention phenomenon. Nevertheless, many US offshore practices have not received nearly the same attention as those of other important destination countries. More broadly, in telling this story, this paper seeks to flesh out some of the larger policy implications of the externalization of immigration control regimes. Just as offshore interdiction and detention schemes raise important questions about custody, accountability, and sovereignty, they should also spur questions over where responsibility for the wellbeing of migrants begins and ends.
Jennifer Moore in Humanitarian protection for unaccompanied children from Central America powerfully writes:
"For the unaccompanied children from Central America seeking refuge in the United States, humanitarian protection signifies that they should have the opportunity to integrate into US communities, to have access to social services, to reunify with their families, and to be represented by legal counsel as they pursue valid claims to asylum and other humanitarian forms of relief from deportation. When the US Congress passed the Refugee Act in 1980, it was in recognition of our humanitarian obligations under international refugee law. As a signatory to the 1951 Convention relating to the Status of Refugees, the United States pledged not to penalize refugees for their lack of legal status, but rather to protect them from deportation to threatened persecution. These humanitarian obligations preexist, animate, and complement specific provisions of federal law, including those that facilitate the granting of T visas to trafficking victims, humanitarian parole to individuals in emergency situations, and asylum to refugees. When new emergencies arise, our Congress, our executive, and our courts fashion the appropriate remedies, not out of grace, but to ensure that as a nation we fulfill our obligations to people in peril."
Araceli Rodriguez, the mother of slain Mexican teen Jose Antonio Elena Rodriguez, filed a federal lawsuit in Arizona to pursue justice for her son, who was killed nearly two years ago by U.S. Border Patrol agents, identified only as John Does in the lawsuit. She is demanding a jury hear evidence about the unlawful actions of these unknown agents.
On the night of Oct. 10, 2012, after playing basketball with friends in his neighborhood of Nogales, Mexico, 16-year-old Jose Antonio was walking home alone when he was shot approximately 10 times through the border fence by unknown Border Patrol agents. Virtually all of the bullets that struck Jose Antonio entered his body from behind. He died on the sidewalk, in a pool of blood, about four blocks from home. When he was shot, Jose Antonio was walking along Calle Internacional, a main road that runs parallel to the border fence. He was walking on the far side of the street, about 25 feet away from the sheer cliff on which the border fence is built. At the location where Jose Antonio was shot, the top of the fence towers approximately 40-50 feet above the street level. At the time he was shot, Jose Antonio posed no threat to U.S. Border Patrol agents or anyone else.
For her son’s unjustified killing, Araceli Rodriguez is seeking damages, including punitive damages. In addition to Gelernt and Parra, she is represented by Roberto C. Montiel of the Roberto Montiel Law Offices in Nogales, Ariz.; Dan Pochoda and James Lyall of the ACLU of Arizona; Andre Segura, Dror Ladin, and Cecillia Wang of the ACLU Immigrants’ Rights Project; Mitra Ebadolahi of the ACLU of San Diego and Border Litigation Project; Arturo Gonzalez and Hector Suarez of Morrison and Foerster LLP.
For the complete ACLU press release, click here.
Tuesday, July 29, 2014
The New York City Bar Association and its Committee on Immigration and Nationality Law have written in support of H.R. 4936, the Vulnerable Immigrant Voice Act (VIVA), and Senator Mikulski’s proposed appropriations for appointment of counsel for children in removal proceedings. The City Bar and the Committee also urge Congress not to pass any provisions that would deny children from Central America access to full hearings as provided by the Trafficking Victims Protection Reauthorization Act.
A timely report from the Congressional Research Service on Unaccompanied Alien Children—Legal Issues: Answers to Frequently Asked Questions.
Today, the American Immigration Council releases Taking Attendance: New Data Finds Majority of Children Appear in Immigration Court. As the number of unaccompanied children arriving at the United States border has increased, some lawmakers have argued that children frequently fail to appear for proceedings and thus proposed mandatory detention as a solution. Some say as many as 90 percent fail to attend their immigration court hearings. Yet government data recently published by Syracuse University’s Transactional Records Access Clearinghouse (TRAC) indicates the opposite. Not only do a majority of children attend their immigration proceedings, according to TRAC, but 90 percent or more attend when represented by lawyers.
Immigration Article of the Day: Let's go outside: bodies, prostitutes, slaves and worker citizens by Julia O'Connell Davidson
Let's go outside: bodies, prostitutes, slaves and worker citizens by Julia O'Connell Davidson, Citizenship Studies, Volume 18, Number 5, 4 July 2014, pp. 516-532(17)
Abstract: In liberal thought, slavery is imagined as reducing the human being to nothing but a body, while the free and equal political subjects of modern liberal democracies are held to be abstract, universal and disembodied individuals. In theory, bodies are also unimportant in the wage labour exchange. Though traditional models of worker citizenship insist on state and employers' duty to protect the human worth of worker citizens, they also assume the disembodied, thing-like nature of commodified labour power. Because bodies are so obviously important in the exchange between prostitute and customer, sex work is difficult to reconcile with liberal fictions of disembodiment, and one strand of feminist debate on prostitution is preoccupied by the question of whether prostitutes are like slaves or wage labourers. Protagonists on both sides of this debate often reproduce liberal understandings of labour power as a ‘thing’ that can be detached from the person. And yet labour power is also a contested commodity, and wage labour has historically been likened to slavery by activists struggling against the commodification of labour power. This article argues that stepping outside liberal fictions of disembodiment and recognising the parallels between prostitution, wage labour and slavery would allow greater scope for establishing a common political subjectivity amongst prostitutes, other wage workers and all those who have an interest in halting and reversing the current global trend towards the commodification of everything. In this way, common political ground between prostitutes and other wage workers is more visible when we step outside liberal assumptions about embodiment, slavery, work and citizenship.
Mee Moua became the first Hmong-American to be elected to a state legislature when, in 2002, she won a seat in the Minnesota Senate. As Minnesota has the largest Hmong population in the U.S., Moua characterized her election as a watershed event for her community’s engagement with mainstream politics. After twice being reelected, she left the state senate to become vice president of strategic impact initiatives for the Asian & Pacific Islander American Health Forum, a national health justice organization. Currently, she serves as the president and executive director of Asian Americans Advancing Justice, which promotes civic engagement for Asian-Americans and other underserved communities.
Moua has earned degrees from Brown University, the University of Texas, and the University of Minnesota.
Moua's father was a medic in the Vietnam War. At the end of the war, her family fled to Thailand when Moua was five years old. In 1978 her family, along with other Hmong refugees, moved to the United States.
Monday, July 28, 2014
The Office of Refugee resettlement has released this data about unaccompanied noncitizen children released by state:
When a child who is not accompanied by a parent or guardian is apprehended by immigration authorities, the child is transferred to the care and custody of the Office of Refugee Resettlement (ORR). ORR cares for the children in shelters around the country until they can be released to a sponsor, typically a parent or relative, who can care for the child while their immigration case is processed.
Ensuring that a potential sponsor can safely and appropriately care for the child is a top priority. A background check is conducted on all potential sponsors, and steps are taken to verify a potential sponsor’s identity and relationship to the child. In some cases where concerns are raised, a home study is done.
Before children are released to a sponsor, they receive vaccinations and medical screenings. We do not release any children who have a contagious condition.
The sponsor must agree to cooperate with all immigration proceedings.
If ORR cannot identify a viable sponsor, the child will typically remain in ORR care unless the following happens:
- The child goes before the immigration judge and requests a voluntary departure
- A judge orders the child to be deported and DHS repatriates
- The child turns 18, transferring custody back to DHS
- Legal relief, in some form is granted by an immigration judge
Ensuring the privacy and safety of children is of paramount importance. We cannot release information about individual children that could compromise the child’s location or identity.
The data in the table below shows state-by-state placement of unaccompanied children with sponsors. ACF will update this data during the first week of each month.
|DISTRICT OF COLUMBIA||187|
After years of outrage at the conditions for immigrants in detention at the Pinal County Jail, Immigration and Customs Enforcement (ICE) has ended its contract with the county. Since 2005, ICE has used the Pinal County Jail in Florence, Arizona to detain immigrants facing removal in Arizona. In 2012, in response to repeated hunger strikes and protest letters from people detained in the jail, Arizona advocates responded by holding vigils, organizing visitation programs and advocating for the termination of this contract. As recently as June 2014, men detained in the jail began a hunger strike in protest of the conditions.
“ICE’s decision to end its contract with the Pinal County Jail is long overdue. Year after year, since the beginning of this contract, men and women detained in the jail have bravely protested the punitive treatment and inhumane conditions,” said Victoria Lopez, Policy and Advocacy Director at the ACLU of Arizona and author of the 2011 report, In Their Own Words: Enduring Abuse in Arizona Immigration Detention Centers.
“ICE and the county were well-aware that their jail operations failed to meet federal detention standards as well as domestic and international legal obligations. Although the termination of this contract is an important step, ICE must make further efforts to reduce its reliance on detention including eliminating the bed quota and using safer and more humane alternatives to detention,” added Lopez.
In 2012, Detention Watch Network released a report on the conditions at Pinal County Jail calling for its closure as a part of the Expose and Close campaign. The report documented the inhumane conditions and lack of accountability at the jail, including complaints regarding sanitation, such as receiving food on dirty trays, receiving dirty laundry and having no access to outdoor recreation or contact visits with family members.
“Detention Watch Network is glad that immigrants in detention are no longer being held at Pinal County Jail. Conditions at detention centers across the country have gotten so bad that the only answer is to start shutting them down,” said Silky Shah, Interim Executive Director at Detention Watch Network. “We are hopeful that ICE will follow suit with the other Expose and Close facilities, especially the Etowah Detention Center in Alabama, which they tried to close in 2010.”
National Latino, Asian Pacific Islander, Labor and Faith Leaders Release 2014 National Immigration Score Card
National Latino and Asian American and Pacific Islander groups as well as labor and Evangelical leaders have announced an unprecedented alliance and civic engagement initiative, beginning with release of the 2014 National Immigration Score Card that shows how Congress failed on the issue of immigration reform.
"After the 2012 election, Congress held out handfuls of pledges to enact immigration reform. However, opposition from anti -immigration extremists turned those hands into balled up fists, delivering stinging blows to the push for reform and immigrant families," the 10 national community, civil rights and faith leaders said in a joint statement released Monday. "Congress may try to ignore us and the immigration issue, but we will not."
In the midst of a national immigration crisis and a shameful leadership vacuum on Capitol Hill, "No where is the anger and disappointment with Congress more palpable than in the Latino, Asian American and Pacific Islander and immigrant communities that suffer daily from the consequences of Congress' failure to remedy the broken and immoral immigration system," the immigration reform advocates stated.
In response, the national leaders have embarked on a broad civic engagement initiative that includes national distribution of the first-ever 2014 National Immigration Score Card that shows how Congress failed on immigration reform by refusing to bring a broad bill to the House floor, yet calling for anti-immigrant votes, such as immediately ending the DACA program and deporting DREAMers. The scores are based on tabulations of immigration related votes and actions including cosponsorship of reform bills that include a path to citizenship and family reunification through visa reform. The report also shows how the scores of several members were knocked down by leaders' refusal to bring to the floor immigration legislation that could have passed the House.
"The 2014 National Immigration Score Card leaves no doubt who supported immigration reform and who worked against us," according to the joint statement. "The American people support immigration reform and they will join us in sending a clear and unmistakable signal to Washington: Congress' inaction fuels our action. The time is now for our communities to get engaged."
Immigration Article of the Day: Demonising ‘the other’: British Government complicity in the exploitation, social exclusion and vilification of new migrant workers by Mick Wilkinson
Demonising ‘the other’: British Government complicity in the exploitation, social exclusion and vilification of new migrant workers by Mick Wilkinson,: Citizenship Studies, Volume 18, Number 5, 4 July 2014, pp. 499-515(17)
Abstract: This article demonstrates the close and complex connection between the demonisation, exploitation and exclusion of new migrant workers. In so doing, it testifies to the blurred boundaries between the categories of severe labour exploitation, forced labour and slavery. This study highlights the absence of citizenship rights as crucial to understanding the vulnerability to demonisation, exploitation and exclusion that characterises the embodied experience of such workers. It also highlights the key role of citizenship as a means for such workers to make rights claims. In the UK, new migrant workers, particularly those arriving from Eastern Europe since 2004, have been increasingly designated by government and media as interlopers in a tight labour marketplace. Whilst their collective economic contribution is sometimes welcomed, they are regarded as ‘external’ to UK society and citizenship, a potential threat to indigenous values and culture, and in competition with British workers. Rarely are migrants afforded the space in public and private spheres to express their individual needs, wants, cares or perspectives. UK migrants have variously been portrayed by the tabloid media and irresponsible politicians as rapacious opportunists, as benefit scroungers, criminals and potential terrorists. The predominant discourse around new migrant workers in the UK is that they are not citizens, but temporary residents who are expected to work industriously and to remain otherwise unseen and unheard until they return to their country of origin. No further contribution to social and political life is required or expected. It is within such an unsupportive environment that new migrant workers in general, and undocumented migrants in particular, have become highly susceptible to employer and gangmaster abuse and exploitation.