Friday, July 31, 2015

The Brief Saga of UK Visa Woes for Chinese Artist/Activist

Ai Weiwei by Hafenbar

Chinese artist and activist Ai Weiwei only recently had his passport returned to him by Chinese authorities.

He applied for a 6 month visa to visit the UK, but his visa was initially denied. He was, however, granted a 20-day visa to attend the opening of a London showing of his work. 

The artist posted a copy of his denial letter to instagram. It states that Weiwei "failed to meet the business visitor rules" by not disclosing his criminal conviction in China. The artist, while held for 81 days in 2011, was not, in fact, charged or convicted of any crime.

After media attention, Weiwei's application was reviewed by the UK home secretary. It has now been granted, and the Home secretary Theresa May has apologized to Weiwei.

Weiwei will open a major exhibition at the Royal Academy of Arts in London this September. It will run through December 13.


July 31, 2015 in Current Affairs | Permalink | Comments (0)

How did Sanctuary Become a Bad Word? Republican anti-immigrant agenda will backfire


I am not sure that I want to stir this pot again but here it goes.  Alvaro Huerta in this op/ed argues that Republican efforts to capitalize on the death of Kate Steinle in San Francisco will damage efforts to appeal to Latino voters.


July 31, 2015 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: What Happened to Non-LPR Cancellation? Rationalizing Immigration Enforcement by Restoring Durable Relief from Removal by Margaret H. Taylor


What Happened to Non-LPR Cancellation? Rationalizing Immigration Enforcement by Restoring Durable Relief from Removal by Margaret H. TaylorWake Forest University School of Law, July 16, 2015, Journal of Law and Politics 2015

Abstract:  This article, part of a symposium on the future of immigration enforcement honoring Professor David Martin, considers relief from removal awarded to some long-term residents based on compelling equities in their particular cases as an essential component of rational immigration enforcement. Under the current statute, adjudication of this form of relief — known as non-LPR cancellation of removal — has ground to a halt. The article explains the unintended and perverse consequences of a statutory cap on grants of non-LPR cancellation, which when combined with the crushing backlog of cases in immigration court operates to undermine non-LPR cancellation as a form of lasting relief. Ironically, a robust system of prosecutorial discretion, which focuses enforcement resources on high priority cases, can also cut off access to non-LPR cancellation for the most deserving applicants, since an individual must be in removal proceedings to apply.

A close examination of how non-LPR cancellation currently operates reveals the serious dysfunction of our nation’s immigration court system. I argue that the statutory cap on non-LPR cancellation should be repealed. Alternatively, the Executive Office for Immigration Review (EOIR) should change the way it administers the statutory cap. In addition, with the advent of the Deferred Action of Parents of Americans and Lawful Residents (DAPA) initiative (which was placed under preliminary injunction as this article went to press), an opportunity arises to create an affirmative application process, so that individuals can apply for non-LPR cancellation outside of removal proceedings.

In an era of congressional gridlock, where expanded prosecutorial discretion via deferred action has become the de facto alternative to a legalization program, close attention must be paid to preserving access to this more durable form of relief from removal. Any serious conversation about immigration reform must consider how at present non-LPR cancellation contributes significantly to EOIR’s dysfunction, but if reformed could play a role in rationalizing immigration enforcement.


July 31, 2015 in Current Affairs | Permalink | Comments (0)

From the Bookshelves: Law and Economics of Immigration Edited by Howard F. Chang

Howard book

Law and Economics of Immigration Edited by Howard F. Chang

This volume compiles influential and diverse readings on the timely subject of immigration. This collection includes work published by leading economists, as well as a number of important contributions made by influential legal scholars, with a focus on economic issues that are salient in debates over immigration policy. Professor Chang’s introduction not only explains the contribution that each reading makes to our understanding of immigration, but also surveys the literature more broadly, putting the selected readings in context.

This volume compiles influential and diverse readings on the timely subject of immigration. This collection includes work published by leading economists, as well as a number of important contributions made by influential legal scholars, with a focus on economic issues that are salient in debates over immigration policy. Professor Chang’s introduction not only explains the contribution that each reading makes to our understanding of immigration, but also surveys the literature more broadly, putting the selected readings in context.              

Contributors include: G. Borjas, A. Bradford, D. Card, A. Cox, G. Hanson, G. Ottaviano, G. Peri, E. Posner, A. Sykes, and M. Trebilcock.

July 31, 2015 in Books, Current Affairs | Permalink | Comments (0)

Has Germany Replaced the United States as the Land of Opportunity for Immigrants? by Vicky Yau





For decades, the United States of America has stood on its own for immigrants seeking opportunities. Immigrants, driven by the lure of economic advancement for themselves and/ or their families, flock to the shores of the U.S., hungry for a share of the “milk and honey” that is purported to flow through its lands. Back in the day, immigrants didn’t take long to realize that they must pay for this “milk and honey,” often times with “blood, sweat, and tears”. Not that these clichés need the facts to back it up, but in case you asking for them, take a skim of Upton Sinclair’s,The Jungle.


In reality, the statistics from organizations such as the United Nations, the Pew Research Center, and the Migration Policy Institution reveal that the United States remains the number 1 top destination country for global immigrants. However, the statistics do spotlight, perhaps an emerging, new “Land of Opportunity”. In recent decades, Germany has catapulted from a country with negligible immigration, to its number 3 spot of top 25 immigration destination countries in 2013.

To give you an idea of the drastic change, the Migration Policy Institute ranked Germany at number 11 in 1960. By 1990, the Germany had jumped to #6. And since 2010, Germany has consistently been rated the number 3 Top 25 Destination Country.


The cause of this drastic change is Germany’s increasingly aging population and its sustained industrial boom. These two factors have left the country starved for labor sources. To combat its labor deficit, unlike the United States, Germany has adopted welcoming immigration legislation. The country not only welcomes immigrants from its fellow European Union nations, but from other countries as well. Germany tries to entice Asian students to its universities and highly qualified skilled workers to its industries. Legislation introducing the “Blue Card” system provides a facilitated immigration procedure for immigrants, essentially ushering through any immigrant armed with a college degree and job offer.


The effects of the U.S. and Germany’s polar opposite immigration attitudes might well have something to do with the U.S.’s 2% decrease in immigration between 2007 and 2012, and Germany’s 72% increase in immigration during the same period. While such an increase in immigration has provoked some anti-immigration activities in Germany, these kinds of attitudes pale in comparison with their EU neighbors. Scholars speculate this has something to do with the country’s post-WWII guilt. Moreover, German cities such as Berlin mimic New York and Shanghai, international cities stuffed with immigrant pockets. The question remains, Are these immigration-conducive facets sustainable such that Germany might one day, in the near future, overtake the U.S. as the “Land of Opportunity” and the “Land of Milk and Honey”?

Vicky Yau is a Second Year Law Student at UC Davis School of Law





July 31, 2015 in Current Affairs | Permalink | Comments (0)

Thursday, July 30, 2015

Call for Participation: Survey on Asylum Process for Limited English Applicants

The Vera Institute of Justice is seeking to better understand the challenges that limited English proficient (LEP) asylum seekers experience during asylum interviews before USCIS. To that end, they have developed a brief survey to gather information from immigration legal service providers about the challenges presented by the requirement that asylum seekers provide their own interpretation during interviews before USCIS.

Any attorney or BIA Accredited Representative who represents clients in asylum proceedings before USCIS is invited to complete this survey. This includes representatives of applicants who are applying affirmatively for asylum, as well as unaccompanied children who are seeking relief from removal through asylum before USCIS.

The survey can be accessed here: The deadline for completing the survey is Friday, August 14.

The survey asks you to share some background information, information about finding, screening, and training interpreters, your views on how language barriers are addressed in the asylum process, and recommendations for improving access for LEP asylees. Each question includes an opportunity to elaborate on your response – which you are invited to do, as often as you like.


July 30, 2015 in Current Affairs | Permalink | Comments (0)

Final Day To Return Erroneously-Issued Work Permits

Today is the final day to return DACA three-year work authorizations issued (erroneously) after February 16, 2015.

Helpfully, the USCIS has created an online tool for checking whether your work permit is subject to the recall.

Screen Shot 2015-07-30 at 1.02.21 PM


July 30, 2015 in Current Affairs | Permalink | Comments (0)

Trump's Racial Divide: Donald Trump's Electability Among Latinos and "the Blacks"


Donald Trump has made the headlines with his presidential campaign and recent denigration of Mexican immigrants and denial that Senator John McCain was a war hero.  It seems clear to all -- except maybe Mr. Trump --  that  he will have have a hard time getting Latino votes.   

Feliks Garcia on the Daily Dot sees Trump as having race issues beyond Latinos.  He writes  that "Trump has a storied history of hiring undocumented workers—and placing them under disparate working conditions."  Trump faced charges from the early ‘80s that he employed undocumented Polish immigrants for the demolition of the Bonwit Teller building to build Trump Tower.

Gawker recently published a collection of quotes by Trump on his feelings about “the blacks,” the term he commonly uses when referring to black people. “I have a great relationship with the blacks. I’ve always had a great relationship with the blacks,” Trump said in a radio interview in 2011.

Recall also that Trump was -- and remains -- a well-publicized "birther," claiming that despite the evidence of his birth in Hawaii, President Obama was born outside the United States and thus ineligible for the Presidency.





July 30, 2015 in Current Affairs | Permalink | Comments (0)

Toobin on Immigration Reform Etc.

A Transformation in Mexican Migration to the United States: A Dramatic Decrease in Overall Immigration, Higher Socioeconomic Status Immigrants


Recent studies have shown that the patterns of undocumented migration to the United States are changing.  While many political leaders decry Mexican immigrants in the United States, the characteristics of that group of immigrants is changing too.  In "A Transformation in Mexican Migration to the United States," Rogelio Saenz reveals that the shift in migration has coincided with changes in the composition of the Mexican population coming to the United States. Sáenz reports that Mexicans migrating today tend to have higher socioeconomic status than earlier migrants and more women and older individuals are migrating.

The volume of migration from Mexico to the United States fell from 1.9 million in 2003–2007 to 819,000 in 2008–2012, a drop of 57 percent. The decline was widespread across states. The U.S. economic collapse during this period had a particularly dampening effect on construction and other industries that rely on a Mexican immigrant workforce. Indeed, during this period of economic decline Mexican migrants were among the first to be fired or displaced.

The policy brief uses data from the 2008 and 2013 American Community Surveys (ACS) to compare the demographic and socioeconomic profiles of Mexican migrants who migrated in the five years prior to each survey (2003–2007 in the 2008 ACS and 2008–2012 in the 2013 ACS). The analysis reveals that the shift in migration has coincided with changes in the composition of the Mexican population coming to the United States. Mexicans migrating today tend to have higher socioeconomic status than earlier migrants; more women and older individuals are migrating; and states that sustained the greatest declines in construction employment are experiencing low levels of migration.


July 30, 2015 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Structural Violence and Migrant Deaths in Southern Arizona: Data from the Pima County Office of the Medical Examiner, 1990-2013 by Daniel E. Martinez, Robin Reineke Raquel Rubio-Goldsmith, and Bruce O. Parks


U.S./Mexico Border Fence at Tijuana/San Ysidro

Structural Violence and Migrant Deaths in Southern Arizona: Data from the Pima County Office of the Medical Examiner, 1990-2013 by Daniel E. Martinez (George Washington University - Department of Sociology), Robin Reineke (The School of Anthropology), Raquel Rubio-Goldsmith (Binational Migration Institute), Bruce O. Parks (University of Arizona), July 19, 2015, Journal on Migration and Human Security 2(4): 257-286 (2014)

Abstract: This article analyzes numeric trends and demographic characteristics of undocumented border crossers (UBCs) who have perished in southern Arizona between 1990 and 2013 in the area covered by the Pima County Office of the Medical Examiner (PCOME) in Tucson, Arizona. Of 2,413 UBC decedents investigated during this period, 95 percent died after 1999 and 65 percent after 2005. The rate of UBC deaths in the Tucson Border Patrol Sector has been consistently high, with an average of nearly 163 deaths investigated per year between 1999 and 2013. The increase in border enforcement during the mid-to-late 1990s, which led to a shifting of unauthorized migration flows into more desolate areas, coincided with an increase in migrant remains investigated by the PCOME. Despite a decrease in the number of unauthorized crossers traversing the area as measured by the number of Border Patrol apprehensions in the Tucson Sector, the number of remains examined for every 100,000 apprehensions nearly doubled between 2009 and 2011. These findings suggest that migrants are being forced to travel for longer periods of time through remote areas in an attempt to avoid detection by US authorities, thus increasing the probability of death.

The typical UBC decedent can be described as a male near the age of 30 from central or southern Mexico who perished in a remote area of southern Arizona after attempting to cross into the United States. Nevertheless, the share of non-Mexican UBCs in the region has increased notably over time. The findings show other important differences in UBC decedent characteristics across time periods, which speak to the dynamic nature of unauthorized migration as a social process. The authors contend that these deaths and demographic changes are the result of structural and political transformations over the past two decades. They argue that the tragic, yet mostly preventable, migrant deaths in southern Arizona constitute a form of structural violence.

EDITOR'S NOTE:  The scorching heat of the summers in the U.S./Mexico border region contributes to the annual spike in the death count of undocumented persons seeking to cross the desert to make it to the United States.  Increasing deaths on the border is one of the consequences of the increase in border enforcement by the U.S. government over the last 25 years.


July 30, 2015 in Current Affairs | Permalink | Comments (0)

Wednesday, July 29, 2015

Migrants' Treasured Posessions, Photographed

PBS has a moving photo essay capturing images of migrants' treasured possessions. This May 2015 photo by Yannis Behrakis/Reuters is representative.


It shows Pakistani migrant Mohamed Ayub's most valued object: his empty wallet.


July 29, 2015 in Photos | Permalink | Comments (0)

Announcing The Restless Books Prize for New Immigrant Writing

Restless books

Did you know that five of America's past six Nobel laureates in literature have been foreign-born? Immigrants have always been a driving force behind our culture and, through literature especially, our sense of what it means to be American. Restless Books is proud to help foster the careers of first-time immigrant authors and bring their stories into the national conversation with The Restless Books Prize for New Immigrant Writing.


July 29, 2015 in Books, Current Affairs | Permalink | Comments (0)

Migrants Storm the Chunnel


Photo courtesy of Wikipedia

Migration flows in Europe continue to make the news.  CNN reports on the latest.  About 2,000 migrants tried to enter the Channel Tunnel --- the Chunnel -- through the French terminal near Calais Monday night in an attempt to reach the United Kingdom. Some of the migrants were injured.   The Chunnel runs 31 miles from northern France to southeastern England.

British Home Secretary Theresa May said France and Great Britain agreed to work together "to return migrants, particularly to West Africa, to ensure that people see that making this journey does not lead to them coming to Europe and being able to settle in Europe."


July 29, 2015 in Current Affairs | Permalink | Comments (0)

Refugee Crisis Along Dominican Republic-Haiti Border


Haitians at the border of between Haiti and the Dominican Republic (Courtesy of Wikipedia)

NPR is tracking what could be the early stages of a major refugee crisis. It is happening in one of the world's poorest countries, Haiti. Some 40,000 Haitians have returned to their homeland from the neighboring Dominican Republic. The exodus results from strict laws recently passed in the Dominican Republic stripping citizenship from children born to undocumented Haitian parents. The result is a growing number of refugee-style camps, springing up on the Haitian side of the border as people flee. As Peter Granitz reports, there is some real concern about the Haitian government's ability to manage this.


Click here to list to this story.  For critical analysis of the Dominican Republic's new citizenship rules by Professor Ediberto Román, click here.  Earlier this month, Professor Román, along with more than 100 law professors from across the United States, wrote a letter to President Barack Obama urging him to take action to end the human rights crisis currently going on in the Dominican Republic.



July 29, 2015 in Current Affairs | Permalink | Comments (0)

At the Movies: Somewhere Between


Somewhere Between

WINNER PEOPLE'S CHOICE AWARD, Hot Docs Los Angeles Film Festival JURY PRIZE BEST DOCUMENTARY, Milwaukee Film Festival Vancouver International Film Festival

When China passed its One Child Policy to limit population growth, an unexpected surge of abandoned baby girls started flowing into its orphanages. Since 1991, over 80,000 of those girls have been adopted by American families. While many adoption-focused documentaries give voice to adoptive parents, Somewhere Between explores the emotional and cultural impact of adoption from the point of view of four teenage girls, all adopted from China. This award winning film shares their personal journeys as these adoptees convey the experiences of a generation of young people attempting to reconcile their multiple identities while navigating the already perilous waters of American adolescence.

A recent adoptive parent of her own Chinese baby, filmmaker Linda Goldstein Knowlton opens the film expressing her concerns for her daughter. How will she build a strong sense of identity as she grows older? Will she feel like an “outsider” living in a family with two Caucasian parents? How will she supplement the missing pieces of her early life? Goldstein Knowlton seeks these answers by chronicling the experiences over two years of Haley, Jenna, Ann, and Fang, all struggling to find their place in the world. Each girl approaches her Chinese heritage differently, connecting with her birth culture in varying degrees. And each grapple in different ways with the the discrimination and racism they face, as their identity challenges typical ideas about race and culture for themselves and their communities.

Shedding stereotypes and a one-size-fits-all identity, Somewhere Between poignantly conveys the vulnerability, confusion, and courage of these girls as they wonder, “Who am I?” As Somewhere Between plunges the viewer into their ordinary and sometimes extraordinary experiences, we too, are encouraged to pause and consider who we are —both as individuals and as a nation of immigrants and people from diverse backgrounds.



July 29, 2015 in Current Affairs, Film & Television | Permalink | Comments (0)

Irregular Maritime Migration in the Bay of Bengal: The Challenges of Protection, Management, and Cooperation


Map image courtesy of Wikipedia

As a vast region with myriad islands, peninsulas, and ancient sea routes, Asia has a lengthy tradition with maritime migration. But this migration has become increasingly complex as refugees and irregular migrants move around the Asia-Pacific region by sea, challenging governments to control their borders, regulate immigration, and fulfill their obligations under international law.

In Irregular Maritime Migration in the Bay of Bengal Region: The Challenges of Protection, Management and Cooperation, Migration Policy Institute (MPI) Senior Fellow Kathleen Newland looks at the emerging trends in irregular migration in the Bay of Bengal area, which experienced crisis earlier this year as mixed flows of humanitarian and economic migrants, largely from Myanmar and Bangladesh, faced critical dangers at sea. Denied permission to land, in some cases pushed back out to sea, an unknown number—believed to be upwards of 1,000—have died of starvation, dehydration, or violence aboard the boats since 2014.

The brief explores how the countries of the region can cooperate to enhance migration management and protection of these migrants. In particular, it notes that most members of the Association of Southeast Asian Nations (ASEAN) are party to international law on transnational crime and international maritime law, which may suggest a pathway to stronger regional cooperation on migration at sea, focused around the twin priorities of saving lives and countering smuggling.

This issue in brief is the thirteenth in a series by the Migration Policy Institute and the International Organization for Migration’s Regional Office for Asia and the Pacific. The series offers succinct insights on migration issues affecting the Asia-Pacific region today. We invite you to read earlier briefs in the series here.


July 29, 2015 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Language Rights as a Legacy of the Civil Rights Act of 1964 by Ming Hsu Chen


Language Rights as a Legacy of the Civil Rights Act of 1964 by Ming Hsu Chen, University of Colorado Law School; University of Colorado, Boulder - Political Science November 25, 2014 Southern Methodist University Law Review, Vol. 67, p. 247, 2014

Abstract: The fiftieth anniversary of the Civil Rights Act of 1964 offers an important opportunity to reflect on an earlier moment when civil rights evolved to accommodate new waves of immigration. This essay seeks to explain how civil rights laws evolved to include rights for immigrants and non-English speakers. More specifically, it seeks to explain how policy entrepreneurs in agencies read an affirmative right to language access.


July 29, 2015 in Current Affairs | Permalink | Comments (0)

Tuesday, July 28, 2015

State Department 2015 Trafficking in Persons Report





The U.S. Department of State has released the 2015 Trafficking in Persons Report.

"This year’s Report places a special emphasis on human trafficking in the global marketplace. It highlights the hidden risks that workers may encounter when seeking employment and the steps that governments and businesses can take to prevent trafficking, including a demand for transparency in global supply chains.

"The bottom line is that this is no time for complacency. Right now, across the globe, victims of human trafficking are daring to imagine the possibility of escape, the chance for a life without fear, and the opportunity to earn a living wage."      –  John F. Kerry, Secretary of State

The Trafficking in Persons (TIP) Report is the U.S. Government’s principal diplomatic tool to engage foreign governments on human trafficking. It is also the world’s most comprehensive resource of governmental anti-human trafficking efforts and reflects the U.S. Government’s commitment to global leadership on this key human rights and law enforcement issue. It represents an updated, global look at the nature and scope of trafficking in persons and the broad range of government actions to confront and eliminate it. The U.S. Government uses the TIP Report to engage foreign governments in dialogues to advance anti-trafficking reforms and to combat trafficking and to target resources on prevention, protection and prosecution programs. Worldwide, the report is used by international organizations, foreign governments, and nongovernmental organizations alike as a tool to examine where resources are most needed. Freeing victims, preventing trafficking, and bringing traffickers to justice are the ultimate goals of the report and of the U.S Government's anti-human trafficking policy.

In the TIP Report, the Department of State places each country onto one of three tiers based on the extent of their governments’ efforts to comply with the “minimum standards for the elimination of trafficking” found in Section 108 of the TVPA. While Tier 1 is the highest ranking, it does not mean that a country has no human trafficking problem. On the contrary, a Tier 1 ranking indicates that a government has acknowledged the existence of human trafficking, made efforts to address the problem, and complies with the TVPA’s minimum standards. Each year, governments need to demonstrate appreciable progress in combating trafficking to maintain a Tier 1 ranking.

Here are a few of the victims' stories recounted in the Report:


Tanya was only 11 years old when her mother traded her to a drug dealer for sex, in exchange for heroin. Both Tanya’s mother and the drug dealer have been indicted on multiple charges, including sex trafficking. In addition, the drug dealer was accused of rape as well as videotaping his sex crimes. At the end of the school year, after four months of such abuse and being forced to take heroin, Tanya went to live with her father and stepmother and confided in them about what had happened. Both her mother and the drug dealer face the possibility of life in prison if convicted on all counts.


At 13 years old, Effia moved to the United States with family friends, excited to learn English and go to school—something her parents in Ghana could not afford. When she arrived, these so-called friends forbade her from attending school and forced her to clean, cook, and watch their children for up to 18 hours a day. The father physically and sexually abused her. Effia received no payment and could not use the telephone or go outside. Six years later, after a particularly severe beating, she escaped the house and a neighbor called the police. With help from an NGO, Effia is finally in school and plans to become a nurse.


Over a period of several years, five Ukrainian brothers fraudulently promised 70 Ukrainians well-paying janitorial jobs at retail stores in the United States. They further lured the workers with promises to pay for their room and board and all their travel expenses. Once the workers arrived in the United States, however, the traffickers exacted reimbursement for $10,000-$50,000 in travel debts, making them work 10 to 12 hours per day, seven days a week to repay the debt, almost never providing compensation. The brothers abused the workers physically, psychologically, and sexually, and threatened to hurt the workers’ families if they disobeyed. The brothers brought many of the workers into the United States illegally through Mexico. Over time, several new recruits were detained at the border and other victims bravely came forward, exposing the trafficking ring. Four of the brothers were convicted on charges of human trafficking; one remains a fugitive and is thought to be in Ukraine.


The report offers reports on trafficking in various countries.  Here is the discussion of Thailand

Thailand is a source, destination, and transit country for men, women, and children subjected to forced labor and sex trafficking. There are an estimated three to four million migrant workers in Thailand, most from Thailand’s neighboring countries—Burma, Laos, and Cambodia. In addition to Thai victims of trafficking, some of these migrant workers are also believed to be forced, coerced, or defrauded into labor or sex trafficking. There are reports that some of those labor trafficking victims are exploited in commercial fishing, fishing-related industries, factories, and domestic work. Some migrant workers who are trafficking victims are deported without proper screening due to inconsistencies in the victim identification process. Some victims are forced into street begging. Sex trafficking remains a significant problem in Thailand’s extensive sex trade—often in business establishments that cater to demand for commercial sex.

CNN reports on the trafficking report.


July 28, 2015 in Current Affairs | Permalink | Comments (0)

Monday, July 27, 2015

Federal Court Finds California Department of Corrections and Rehabilitation Violated Title VII

Last week, a federal court in San Francisco ruled that the California Department of Corrections and Rehabilitation (“CDCR”) and the California State Personnel Board (“SPB”) violated federal civil rights law by denying employment to Victor Guerrero, now a naturalized U.S. citizen, because he had used an invalid Social Security number (“SSN”) to work while undocumented. Mr. Guerrero, a 15-year resident of Stockton, California, had applied to work as a correctional officer for CDCR in 2011 and 2013. Both times he was disqualified from the job for the same reason – truthfully disclosing during the application process prior use of an invalid SSN.

In a detailed 33-page ruling, U.S. District Judge William Alsup stated, “There is no indication in the record that Guerrero’s misuse of an SSN under his circumstances ‘pose[d] an unacceptable level of risk’ for CDCR.” The Court “d[id] not find anything in the record that would indicate that Guerrero embodied an unqualified or even a less qualified -- applicant.” As a result, the Court concluded that “CDCR’s effectively single-issue withhold based on [SSN misuse] amounted to an “arbitrary . . . barrier to employment” in violation of Title VII.”

“At my naturalization ceremony, I was told about the privileges I now had as a U.S. citizen,” said Mr. Guerrero. “And the privilege that was most important to me was the right to apply for any job in the United States. I’m very happy that, after coming here as a child and finally becoming a U.S. citizen, my American dream has finally come true.”

Mr. Guerrero was brought to the United States by his parents at the age of 11. When he turned 15, his parents arranged from him to obtain an invalid SSN in order to work and help support the family. Approximately two years later, Mr. Guerrero’s mother informed him that he was in fact undocumented and that the SSN he was using had been invented. Mr. Guerrero immediately applied to the IRS for and received an individual taxpayer identification number (“ITIN”) in order to legally file his taxes, but continued to use the invented SSN in order to support his family until 2007, when he was able to become a lawful permanent resident.

After finally earning his U.S. citizenship in 2011, Mr. Guerrero applied to be a correctional officer -- which was a dream that he had since he was very young. Growing up in a dangerous neighborhood, he wanted to contribute to society by working in law enforcement. But when Mr. Guerrero applied, CDCR told him both time that his use of an invalid SSN in order to work showed that he “fail[ed] to possess the qualifications of [integrity, honesty, and good judgment],” and that his use of a Social Security number “even though he had a taxpayer ID number show[e]d a willful disregard for the law.”

On Tuesday, Judge Alsup determined that CDCR and SPB’s decision to reject Mr. Guerrero (1) had a discriminatory impact on Latinos, who represent over 80 percent of the undocumented population in California, and (2) was not justified by any business necessity.  Specifically, Judge Alsup stated that “CDCR did not undertake an individualized assessment of Guerrero’s case and history in determining his honesty, integrity and good judgment.” The Court also pointed to CDCR’s failure to provide any evidence that prior use of an invalid SSN to work served as a reliable indicator of future job performance. Moreover, the court explicitly acknowledged the difficult position undocumented immigrants often face in the United States. Judge Alsup noted that Mr. Guerrero’s efforts to pay his taxes with an ITIN while undocumented were “commendable,” that he “had little choice but to continue using the invalid SSN as an adult” after he had been given it as a child, and that “[t]he alternative would have been to either stop working or resort to illegal commerce to support his family.”

“This decision is critical for any immigrant who was once undocumented or who is undocumented now and seeks to adjust his or her immigration status in the future. In this case, the Court held that a person’s prior use of an invalid SSN in order to work should not be used as a reason to not hire them,” said Marsha Chien, a staff attorney at The Legal Aid Society - Employment Law Center, which represented Mr. Guerrero. “Once immigrants adjust their status, they should be allowed to fully pursue any career, as well as participate in and contribute to American society.”

For the Law 360 story on this case, click here. And here is the ruling.  Download Guerrero v California Department of Corrections and Rehabilitation

July 27, 2015 in Current Affairs | Permalink | Comments (0)