Friday, April 22, 2016
Guest blogger: LaTasha Hill, first-year law student, University of San Francisco
After watching any political candidate discuss immigration, it is easy to think immigration only consists of adults who have entered the United States without inspection. Little thought is given to the U.S. born children to undocumented parents.
According to a 2011 Race Forward (formerly known as Applied Research Center) report entitled Shattered Families: The Perilous Intersection of Immigration Enforcement and the Child Welfare System, at least 5,100 children of deported parents in 22 states are in foster care. The report stated 1 in 4 people deported (nearly 100,000 people) left behind a U.S. citizen child and approximately 4.5 million U.S. born children have a parent who is undocumented. (Gavett, Gretchen. Study: 5,100 Kids in Foster Care After Parents Deported, PBS (Nov. 3, 2016),
When a parent is deported, their U.S. citizen child can either leave with them, stay in the U.S. with another parent or family member, or end up in foster care. In 2013, Immigration and Customs Enforcement (ICE) carried out more than 72,000 deportations of parents who said they had U.S. born children. (Foley, Elise. Deportation Separated Thousands of U.S. Born Children From Parents In 2013, Huffington Post, (Jun. 26, 2014)
Once the parents have been placed in ICE custody, law enforcement will contact Child Protective Services (CPS) to decide how to best handle the needs of the child. A CPS investigator places the child into temporary foster care, even if the child has other relatives, if those relatives also are undocumented. CPS cannot place children with undocumented family members because those relatives could be deported at any time. (Jackson, Geena. Thousands of Children Stuck in Foster Care after Parents Deported, Report Finds, American Immigration Council (Nov. 04 2011)
While the concern of CPS for not wanting to place children in the homes of undocumented relatives are valid, it seems mentally and emotionally safer to do so, even if there is a possibility of that relative one day being deported. Because an undocumented immigrant can go decades without being deported, the social and emotional toll of being in foster care with strangers (and possibly separated from siblings), seems more daunting than kids staying in a familiar environment with adults they trust.
Additionally, by not allowing children to live with other family members regardless of immigration status, the United States obligates itself to another unnecessary financial obligation. The U.S. reportedly spends $22 billion dollars on children in foster care annually, which averages $40,000 per child. (Thousands of Children Stuck in Foster Care after Parents Deported, Report Finds)
While the top priority of CPS is to reunite children with their parents, this goal becomes extremely complicated within the immigration system because parents are usually transferred hundreds of miles from their homes to ICE detention facilities. Moreover, ICE refuses to transport them to any outside legal proceedings, making it difficult for parents to remain informed of their child’s condition and difficult to appear at CPS court proceedings. (Shattered Families: The Perilous Intersection of Immigration Enforcement and the Child Welfare System) However, some parents are able to get court approved phone conferences, if they are unable to appear in person. Next, CPS creates a “reunification plan” to help parents regain custody, which consists of parenting classes, visitation, and secured housing. While this process is completely logical for U.S. citizen parents, it is impractical and impossible for a parent being held at a detention center. ICE policies prevent a parent from complying with the CPS plan. Once a child has been in foster care for nearly one year, CPS develops a “permanent plan,” to address reunification, adoption, or guardianship with kinship caregivers.
After the parent is deported, s/he can contact CPS to discuss the international procedure for reunification, which could include flying the child to the parent’s native country. If the parent fails to complete the case plan or the child remains out of parent’s custody for 15 months of any 22-month period, federal law requires CPS to petition to terminate parental rights. (Shattered Families: The Perilous Intersection of Immigration Enforcement and the Child Welfare System).
Federal and state immigration laws and procedures place CPS in a tough situation. CPS is a noble agency, created to protect children from abusive and neglectful parents. However, the agency policies regarding children of deported parents seem to paint CPS as another U.S. government agency keeping families a part for the nonthreatening reason of status. Unfortunately, there is little data on what happens to many U.S. born children to deported parents once they enter in foster care permanently. These kids are then grouped with the larger number of foster children once parental rights have been terminated and no guardianship can be awarded to relatives.
This process into foster care for U.S. citizen children born to undocumented parents should be reexamined and adjusted to better suit ICE barriers and the unique experience of immigrant families in America. No child should have to endure such a traumatic experience If CPS and ICE truly care about families.
Guest blogger: Katie Hall, second-year law student, University of San Francisco
As part of the 1996 Illegal Immigration Reform and Immigrant Responsibility act, Congress included a provision that would prevent undocumented immigrants who had either overstayed visas or entered without inspection from returning to the U.S. legally until after a wait period of either three or ten years, depending on the amount of time they had been in the U.S. This outright ban has separated families and has in fact encouraged some undocumented immigrants to stay in the U.S. who would have left, for fear if they leave they will be denied entry again and must suffer the waiting period. Secretary Clinton is the only presidential candidate that has said she will work to specifically appeal the three and ten year bans, and is the candidate with the most pro-immigration platform.
Clinton has expressed since October 2015 that in the pivotal first 100 days in office comprehensive immigration reform will be a top priority. As an experienced politician, Clinton is not so naïve however to expect that immigration reform will pass in that time period. In anticipation of a difficult Congressional battle over immigration, she stated in February 2016 that regardless the progress, or lack of progress, for comprehensive reform, she will propose separate legislation to specifically repeal the three and ten year bans.
Senator Sanders also has expressed that he would like to overhaul the immigration system but has stressed much more heavily that the proper forum for reform is in Congress, and it will be a legislative battle to make any changes. This could been seen as tempering the American people to prepare for a lengthy immigration debate once the new President takes office in 2017, and he does not want to make false promises to win voters. While both candidates recognize the political challenge, Secretary Clinton has many more connections in Washington to achieve legislative change and has expressed her commitment to using her Presidential leadership to put pressure on the Washington gridlock.
As a former part of President Obama’s administration, Secretary Clinton also is uniquely poised to not only advocate to continue the President’s successful programs, mainly DACA and DAPA, but also to exercise executive enforcement differently. In Secretary Clinton’s own words, “I will do everything I can to protect the President's executive actions and go further to bring more people relief and keep families together.” While not openly criticizing the administration she was formerly a part of, Secretary Clinton has made it clear that she will not deport families and will curb the amount of deportations currently enacted.
As the most pro-immigrant candidate available, and one candidate with many years of connections in Washington, there is hope that a President Hillary Clinton, will be able to do what a divisive President Obama could not do, enact proper immigration reform. There is also hope in Secretary Clinton because early in her campaign she made clear which issues in immigration reform she feels the most strongly about and will work to repeal regardless of the slow process in a comprehensive reform. The three and ten year bans have proven to be unsuccessful programs, in that they have not curbed the numbers of undocumented immigrants in the U.S. and they have been particularly devastating for people living in this country. Her promise to work to at least end this irrational policy is a demonstration of her commitment to immigration reform and making any progress that a President can.
While President Obama has used his executive actions to the benefit of millions of people, there is only so much one branch of government alone can do. The hope with Secretary Clinton is that her history of actually enacted policies will help to continue the incremental changes that President Obama has started. While the ultimate decisions of immigration form lie in Congress, there is hope that with our first female president in the Oval Office there will be the political will, knowledge, leadership, and connections to make reforms a possibility, even if they need to be done piece by piece.
Guest blogger: Mariel Emanuel, first-year law student, University of San Francisco
In response to the terrorist attacks of 9/11 the U.S. government shifted to screening and enforcing immigration laws through the lens of national security. In 2002, the Department of Homeland Security (DHS) was created in order to ensure “the safety and security of the United States from terrorist attacks and other disasters.” With a central focus on national security and terrorism, twenty-two different federal departments including the Immigration and Naturalization Services (INS) and U.S. Customs Service were subsumed into the new Department of Homeland Security that today includes U.S. Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration services (USCIS), and U.S. Customs and Border Patrol (CPB).
At first glance this re-categorization may seem like a non-issue. However, by blurring the lines between terrorism and immigration the government has been able to take unreasonably drastic measures against non-citizens in the name of national security. This is a country founded on immigrants. Our economy depends on the “approximately 48% of farmworkers [who] lack authorization.” Agriculture and agriculture related industries alone “contributed $835 billion to the U.S. gross domestic product (GDP) in 2014.” Immigrant labor has been essential to this economic prosperity. So, why would the government seek to cast all immigrants and non-citizens in such a threatening and dehumanizing light?
The reallocation of immigration affairs into the DHS was not the only change the government made in response to 9/11. Since 9/11 the federal funding for immigration enforcement experienced an exorbitant increase. It has been estimated that the construction of the DHS cost the U.S. $589 billion dollars between 2001-2011. As this funding increased, so did the detentions and deportations of non-citizens.
There are two private corporations in charge of the immigration detention centers in the United States—Corrections Corporation of American (CCA) and the GEO Group. Between 2006-2015 “CCA spent more than $8.7 million and the Geo Group spent $1.3 million to lobby Congress solely on Homeland Security”. Since 2005, both corporations have nearly doubled their revenues.
Detaining non-citizens has turned into a lucrative market. Congress has even set a statutory quota that mandates ICE to have at least 34,000 beds filled in the detention facilities on a daily basis. No other law enforcement agency is subject to a statutory quota on the number of individuals to hold in detention. There is no material reason for enforcing a strict bed quota. This is a prime example of the corruption that plagues Congress. Human quotas have been set in order for corporations to meet their monetary quotas. Congress is implementing arbitrary statutes that do not benefit the citizens, but instead put millions of dollars into the hands of the corporations who proceed to put millions of dollars back into Congress through campaign contributions.
The symbiotic relationship between DHS’s immigration enforcement policies and corporate profit underscores the general mode of operation in the United States. Financial growth, commercial revenue, and personal greed have become the underlying motives for many of the decisions our government makes. Some of these choices may indeed stimulate growth for the US economy; however, the hefty price we pay as a society cannot be put into monetary terms.
Innocent humans are being rounded up and detained for private profit in the name of national security. All the while the reality of this crisis is being obscured from mainstream knowledge. By cloaking these grave human rights abuses under the veil of counter-terrorism and security, the government is able to avoid scrutiny and discretely shape public sentiment toward immigration policies. Of course everything in the name of counter-terrorism is deemed as worthy and beneficial. However, this false conflation of immigration issues and terrorism is turning non-citizens into a commodity and allowing corporate desires to more easily shape federal immigration policies.
Today's New York Times opinion page contains an editorial by Olga Armas, an immigrant from Peru, entitled, "What I Will Do When I Get My Papers." Ms. Armas is a mother of three daughters, two of whom are U.S. citizens, and would thus be eligible for Deferred Action for Parental Accountability (DAPA) if the Supreme Court sides with the federal government. From the column:
"We fear deportation all the time. One day, a police officer stopped the car my husband was riding in and asked everyone for identification. My husband doesn’t have an ID, and the police officer made him get out of the car. My husband was terrified that he would be arrested and sent back to Peru..."
"Not being able to say goodbye to your loved ones is what hurts most about being in this country without papers." (discussing the inability of many undocumented immigrants to return to their home countries due to bars on re-entry)
"My daughters know that if DAPA goes forward, our lives will change. Dad will be able to look for another type of work that isn’t so hard on his body. I will be able to get a driver’s license and a car and drive them to visit colleges and go to robotics club competitions."
Immigration Article of the Day: The Politics of Fear: Unaccompanied Immigrant Children and the Case of the Southern Border by Sarah Hill Rogerson
The Politics of Fear: Unaccompanied Immigrant Children and the Case of the Southern Border by Sarah Hill Rogerson, Albany Law School April 12, 2016 Villanova Law Review, Volume 61 (Forthcoming)
Abstract: Thousands of Central American children have migrated to the United States by themselves in the last two years. More are on the way as their governments and continue to fail and expose them to violence, neglect, poverty and exploitation, compelling them to flee to the border between Mexico and the United States. Humanitarian and pragmatic concerns raise questions of how best to deal with their migration, questions that have been asked with similar migrations of unaccompanied children to the United States in the past. This paper focuses on how politicians and government officials have consistently responded to those concerns with fear-based rhetoric. I argue that fear has colored legal developments regarding unaccompanied minors in a way that has made them uniquely vulnerable to systemic abuse, impeded due process and subordinated them in the legal order. However, there is a floor of Constitutional protections afforded to these children that has been slowly built in recent years, largely through public law litigation filed to correct these injustices. This article contextualizes recent developments to secure rights for unaccompanied immigrant children at our southern border, rooting these efforts in the racism, exclusion and militarization of the border itself and marking potential judicial points of departure in securing more rights for children and forcing immigration authorities to safeguard children’s dependencies, rather than exploit them.
In this piece on Immigration Impact, Shoba Sivaprasad Wadhia analyzes Justice Anthony Kennedy's "upside down" argument at the oral argument in United States v. Texas. At oral argument, Justice Kennedy said, “the briefs go on for pages to the effect that the President has admitted a certain number of people and then Congress approves it. That seems to me to have it backwards. It’s as if—that the President is setting the policy and the Congress is executing it. That’s just upside down.”
Professor Wadhia is an expert on deferred action and prosecutorial discretion in immigration removal. Here is a review of her book Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases.
Kate Linthicum in the Los Angeles Times reports on a spike in naturalizations as a harsh national debate over immigration has encouraged immigrants to seek to become U.S. citizens:
"A t a recent fair at the Long Beach Convention Center, more than 3,000 immigrants got free help filling out citizenship applications and practiced casting ballots at mock voting booths. Events like this almost certainly were not what Republicans intended when they blocked President Obama's program to shield millions of immigrants from deportation. But the new nationwide push to help more than 8 million legal permanent residents become citizens — and therefore potential voters — is a direct consequence of Republican resistance to Obama administration immigration policies." The harsh statements about immigrants by Republican presidential candidates has also fueled the increase in citizenship petitions.
In some respects, the increase in naturalizations today is similar to what occurred in California in 1994 after passage of the anti-immigrant measure known as Proposition 187: "The passage of Proposition 187, though it ultimately was declared unconstitutional, is widely credited for helping turn California blue. Republicans faced backlash at the ballot box after organizers registered millions of new Latino voters in the years after the initiative passed, and the state has since transformed into one dominated by Democratic politics."
United States v. Texas: What to Make of the Justices’ Questions on Standing.
On Monday, April 18th, I attended oral arguments in United States v. Texas. While some in the media are already writing the obituary for DAPA and expanded DACA, I came away from oral argument with a different impression. (Disclaimer, I was one of the authors of an amicus brief submitted in support of the DAPA and expanded DAPA programs.) The justice's questions, especially on standing, deserve a second look. Here's why:
Given the Chief Justice’s history of cautiously guarding a narrower view of the Court’s standing doctrine, many were surprised by questions that seemed to express some sympathy with Texas’s standing argument. The federal government has argued (as did Walter Dellinger in his amicus brief) that Texas cannot claim that their subsidy for issuance of drivers licenses to DAPA recipients constitutes an “injury,” since the State chose to allow those with deferred action to qualify for a license. While a few questions from the Justices to counsel asked whether this financial expenditure could even constitute an injury, more time was spent on whether the State could actually change the policy. Chief Justice Roberts asked whether Texas actually had options, or whether it was caught in a “Catch-22,” given that any change that limited access to driver’s licenses would likely lead Texas right back to court to defend its new policy. However, as Thomas Saenz, who argued on behalf of the intervenors, explained, a lawsuit to challenge a new policy would be the only way the Court could ensure there be the kind of “concrete clash of real interests” that would allow the Court to analyze an actual rather than hypothetical policy, as well as the motivations underlying that policy. Saenz’s answer should have given pause to any of the Justices concerned about ensuring that federal courts only adjudicate actual cases or controversies.
Similarly, Justice Breyer’s line of inquiry into whether Texas’ standing theory might expand standing doctrine to “every case of political disagreement where States disagree” appeared to directly evoke the Chief Justice’s previously stated views about the role of standing in preserving the Court’s proper role in our system of government. Justice Breyer highlighted the deeply political nature of the dispute over the deferred action initiatives, as evidenced in the multitude of amicus briefs submitted on both sides, channeling the Chief Justice’s previously stated view that standing is not just a mechanism to ensure “judicial self-restraint” but also that it serves to “compel the other branches of government to do a better job in carrying out their responsibilities under the Constitution.” As Solicitor General Donald Verrilli, who argued for the federal government, highlighted, the risk that the states might turn the courts into a vehicle to voice their political disputes is not hypothetical, as Texas has recently sued the United States in an attempt to block the settlement of Syrian refugees in the State. (Second disclaimer: I am counsel for the International Rescue Committee, who, along with the federal government is a defendant in this case.)
Indeed, some of the other questions can be read to indicate the Chief Justice and Justice Kennedy’s concerns about Texas’ standing claims in this case. The Chief Justice has previously expressed skepticism (and was joined by Justices Alito and Thomas) about whether states are entitled to “special solicitude”, and the questions he posed to both the Solicitor General and Saenz on this topic may have signaled his continuing doubts on this issue. Justice Kennedy’s question about whether Texas could bring a challenge under the Administrative Procedure Act, which was also raised by Justice Sotomayor, potentially signals doubts from him about whether this case is the correct vehicle to bring a challenge to the President’s executive actions.
I do not think the oral arguments can be said to provide a clear answer about how any of the Justices will land on the question of Texas’ standing. Recent history has shown that the Justices continue to evaluate their positions after oral argument, and I think, at most, the Justices’ questions and the advocates’ responses provided a strong indication at least some of the Justices may still be wrestling with these questions.
Thursday, April 21, 2016
Guest blogger: Nicholas Gonzales, first-year law student, University of San Francisco:
Juan Gonzalez was 14 years old when he entered the United States illegally by a train boxcar. His goal, like most other immigrants crossing the Mexico border, was to find a better life himself. While in the U.S., Juan discovered a new government program that advertised to provide immigrants with a job, housing, and enough pay to live comfortably, with citizenship as the final payoff. With minimal formal education and a socio-economic status to reflect, this program seemed like Juan’s only option for becoming lawful in the United States. This program that provided Juan and over 4.5 million other Mexican citizens the opportunity to work for their citizenship was the bracero program.
The bracero program (Public Law 78) was established in 1942 in response to labor shortages caused by American workers relocated by World War II. It grew out of a series of bi-lateral agreements between the U.S. and Mexico governments that permitted Mexican citizens to take temporary agricultural work here in the U.S. The program was originally designed to be an interim temporary worker program in goal of offsetting the influx in agricultural worker shortage here in the U.S. during the war. However, with a significant increase in domestic agricultural demand after the war, the bracero program continued on for over two decades and contracted a total of more than 4.5 million Mexican citizens over its 22 year lifespan; ceasing in 1964.
The bracero program is not the U.S. government’s only effort in providing citizenship through temporary agricultural work. Today there are opportunities for Mexican citizens and others crossing the Mexico border wishing to gain residence here in the U.S. in the form limited independent contracts with agricultural businesses and a regular alphabet soup of temporary work visas (H-1B, H-2A, H-2B, J-1, L-1, L-2, and Q-1). But it’s clear these options are not enough and do not create adequate opportunities for Mexican citizens to gain residence through temporary work.
The Need for a Bracero Program
It’s projected that the demand for U.S. agricultural production will increase substantially for both international import and domestic consumption in the next decade. In a 2013 article, the United States Department of Agriculture stated that, “developing countries' demand for agricultural products is expected to increase faster than their production. Rising import demand by developing countries will provide an opportunity for the United States to expand agricultural exports.”
The original bracero program wasn’t perfect and is certainly not the direct response in mitigating the immigration problem today through temporary work. AFL-CIO, the umbrella federation for U.S. unions, stated that, “[p]rograms like the bracero program or temporary guest-worker programs where individuals were tied to an employer, they got exploited. They got cheated out of wages [and] they weren't given what was rightfully due to them. They were forced to work under unsafe conditions. They were forced to accept substandard wages. They couldn't say anything, because if they did, [the employer] would jerk their permit and deport them."
It was true that the program at the time was framed in a way that took advantage of participants and did not provide proper compensation ($3 per day) or living conditions. The program adversely affected both the U.S. and Mexico governments. The agricultural industry in Mexico's northern region was negatively impacted from the large scale migration of local farmers leaving Mexico. The U.S. agricultural companies also fell into more capitalistic habits, such as exploiting the influx of cheaper labor. Implementation of the original bracero program was as unfair to migrant workers then as it would be now. But this was not what made the program successful. These issues can be practically mitigated through proper retrofitting of the original program to adapt to today’s standards. Implementing a large scale temporary work program structurally similar to the bracero program would not only provide Mexican citizens a more practical and consistent way to gain residence and legal entry through temporary work, but also help mitigate future need for domestic agricultural production here in the U.S.
Two main goals of U.S. immigration reform as identified by the United States Citizenship and Immigration Services (USCIS) include: “supporting immigrants’ integration and participation in American civic culture; [and] promoting flexible and sound immigration policies and programs” Juan Gonzalez is the grandfather of a third generation immigrant who is attending the University of San Francisco School of Law, working toward a career in International Human Rights and Immigration Law, and is the writer of this op-ed. The bracero program was a sound immigration policy at the time and aided in my family’s successful integration into American culture. Although a large scale temporary worker program or any policy of its kind will not produce the same support to our national immigration objectives, my grandfather and I are proof that it works.
It’s clear that current U.S. immigration policy is not as effective as it should be. The majority of immigrants illegally entering the U.S. through the Mexico border are doing so to find jobs to better support themselves and their families, and many of those jobs are in the agricultural industry. Although these facts raise serious issues, in order to address the overlying issue that is the immigration crisis today, policy must change with respect to immigrant’s integration into the agricultural industry here in the U.S. Reinstating a large scale temporary worker program similar to the bracero program holds the highest potential for supporting sustainable integration of Mexican citizens into the agricultural industry and ultimately into our society here in the United States.
"Make no mistake about it: Immigration reform is a political hot potato. The case pending in the United States Supreme Court, United States v. Texas—which the Court just heard Monday—is simply the latest battle in the long—and, at times, bloody—political war over immigration reform. Texas has made it clear that it disagrees with President Obama’s immigration policy choices and appears to be using the federal courts to achieve political ends not envisioned by the framers of the U.S. Constitution. The lawsuit, based primarily on technical and generally unpersuasive administrative law procedural claims, strongly suggests that the suit is little more than a political gambit."
Guest blogger: Zulma Munoz, first-year law student, University of San Francisco
According to the Urban Institute - Migration Policy Institute report, “[b]etween 2003 and 2013, the U.S. government formally removed 3.7 million immigrants to their home countries,” and “parents of U.S.-born children made up between one-fifth and one-quarter of this total.” My father was one of these.
It has been five years now. I still startle awake some nights hearing the judge deliver her verdict that overturned the trial court’s Cancellation of Removal. I see my mother and father and how distraught they were.
I am now a first year law student at the University of San Francisco School of Law. Most are not so lucky. I know from personal experience how awful and disorienting it is when family members, contributing hard working members of society, much loved fathers and brothers, suddenly don’t come home because they are arrested and slated for deportation.
When my mother was seventeen, she and my father carried my brother across the border to the United States. I was born three years later in Oakland, California. At age two, my father died in a car accident. When I was seven, my mother married a wonderful man and I was delighted to have a new father. Soon a younger brother arrived.
When I was a freshman at UC Berkeley, officials arrested my brother for marking the streets with graffiti. Within a week, the case was transferred to Immigration Court and my brother’s deportation followed closely thereafter. My brother participated in our school community’s Native American Youth Group. He was 9 when he joined the group and at the age of 19 he was selected to become a “Guerrero” – a Native right of passage ceremony for young men dedicated to community advancements. However, because he was not a U.S. citizen, my brother developed a sense of hopelessness for the future. Although he was only 6 months old when he arrived in this country and went to school, his opportunities were foreclosed.
Our entire lives changed the moment he was picked up by police. The next few months and years of my life were dominated by uncertainty and court proceedings, translating for my parents at attorney consultations, and supporting the emotional well being of my mother and my younger 10-year-old brother. Eventually my older brother was deported.
The day of my brother’s deportation, I packed a backpack with his favorite Bob Marley shirts, Vans shoes, his beloved Raiders hat, underwear and socks, and a few family portraits that I managed to collect on my way out of my house to say goodbye. I arrived at the Detention Center, but I was not allowed to see my brother. I began to panic. For some odd reason, I felt like I’d never see my brother again. I burst into tears. Moments later, one agent informed me that the backpack was too heavy and he forced me to take out some clothes in order to meet the weight requirements. I took out the heaviest pieces of clothing I could find, and I struggled to choose between some jeans, a hoodie, and a jacket. “He needs everything,” I whispered to myself. I fought my tears. I felt so little, so powerless, in front of these officers. I tried explaining to them that my brother had nothing back in Mexico, that all of his belongings were here, not there. Those were the rules. They showed no compassion, and it was clear that they did not care. The agent put the remaining clothes in a plastic bag and he handed it to me. I walked out of the building, feeling broken. I hugged my brother’s clothes, I held them tight to my chest, wishing I could hug him.
Sadly, during my junior year in college, my family’s situation worsened when my father was detained and placed in deportation proceedings. Once again, I adjusted my schedule to tend to my father’s case. Once again, our lives were upended.
My experience as a daughter of undocumented family members and my family’s immigration struggles taught me about the intricate dynamics of court politics and the importance of sustainable legal services for noncitizen communities. Unlike my older brother, as a citizen I had opportunities. I learned at an early age that education was a ticket out of poverty. My brother’s and father’s experiences provided me with insights into how the legal system functions, how immigration laws and educational policies can fall into dysfunction, and how just laws such as Family Reunification can help keep families together.
How does a child feel to have their father get deported? Within days after my father’s deportation, I felt like my father had died. I see individuals like my father everyday. I regularly witness the contributions that they make to our schools and our neighborhoods. I see fathers going to their children’s soccer games and school events. I watch these children exercise their right to grow up with their fathers by their side. I watch these families grow in love and respect for God, their country and their communities, but I also witness many other families experience the fear and disappointment, and tragedy of having a loved one snatched from their midst. It’s heartbreaking.
In this community of more than 11 million undocumented workers in the United States there is constant fear from threat of separation because of deportation; there is hopelessness due to the lack of opportunities for secure economic advancement; there is frustration because the immigration status of this population drastically limits their opportunity to improve their families’ lives to assure a secure future. They live under constant threat of being expelled from this country, or having a family member expelled.
I came across this book on grieving and it resonated with me because I am mourning the loss of my father. My former violin teacher and close friend of mine recommended the book. It was helpful for me to look at this as a guide in the grieving process – it helped me understand and put into context where I was.
There are five stages of normal grief that were first proposed by Elisabeth Kübler- Ross in her 1969 booked called, “On Death and Dying.” After reading through this, I found a parallel between losing a loved one through death and losing a loved father and brother through deportations.
Here are my five stages of grief.
Denial and Isolation
One night my father, who was always reliable, failed to come home from work. It took a week of panicked and frantic inquiries before we learned he had been picked up at his work. Eventually I obtained a copy of my father’s case file. I poured over the case file. I re-read and e-mailed my father’s attorneys asking if they had heard of any updates. I remember flipping through the 100-page file, as if in there I’d eventually find the answer that would bring my father home. I was in denial. I buried myself in details to cope with the initial shock.
Gradually reality and the pain began to emerge. I was not ready. My sadness and heartbreak was deflected and redirected and expressed instead as anger and frustration. I resented the ICE agent who casually skimmed through the 2011 calendar choosing a day to send my father back to Mexico. I remember sitting in the ICE office, gripping onto my father’s arm, and in the corner of my eye, I spotted a picture of that ICE agent’s family on his desk. They were happy. I begged him to reconsider this decision and to think of his family and how happy they were together. He said nothing. I felt disgust toward my own country, and I even resented my father’s attorneys. I criticized them for “losing” and I often asked myself: “Why would this happen?” and “Why me? It’s not fair!” I felt guilty for being angry at the attorneys, and this made me even angrier.
I tortured myself for months. “If only we would have gathered more letters of support…” or “If only I were younger and not in college to show the government that two young U.S.-born children really need their father…” or “if only my father could be at my college graduation …”
And I was sad. I had regret. I became silent, I refused to hang out with friends, and I quit playing soccer. I cried myself to sleep many times thinking about all of the times I should have accompanied my father to church, to the grocery store, to the A’s games – anything that would result in more time spent with him. I felt numb. I considered withdrawing from school. I eventually began seeing a therapist.
Somehow, I don’t know how, I managed to find resolve. I was determined to try and ensure that other families do not suffer as my family did. “It’s going to be okay.” Losing my father was so sudden and unexpected, and I realize I am lucky. Some may never see past their anger and denial. I was able to withdraw and I became more calm. I moved to Los Angeles for a full-time work opportunity supporting parents a few months after my father left the country. This was five months after my college graduation. Moving away from my mother and younger brother was very difficult, but I was ready to remove myself from “the situation” – my home that no longer felt like home because my father was missing. This was not a period of happiness, but it was a relief from depression. I stayed away from social interaction; it allowed me to focus on my law school preparations.
Quite frankly, I don’t believe I can ever fully accept what happened. Ultimately I cannot accept something that is unacceptable.
As I watch this election cycle, I am not optimistic. Others will have to go through this grieving process I experienced. Coping with loss is ultimately a deeply personal and singular experience — nobody can help you go through it more easily. Communities will continue struggling to support immigrant families and children. More children will go through these stages of grief and hopefully get to the point where I am today.
In many ways, I am privileged that my life’s circumstances taught me about the immigration, education, and labor systems in American because it motivated me to start my career early. My family’s case catapulted my knowledge and frustration with the legal system, so I decided to pursue a career through which I could influence the outcomes of individuals with similar stories. I have organized students to journey to Washington DC to lobby for immigration reform, and I have providing immigration relief to youth without legal citizenship. My mission is clear.
In November 2014, President Obama issued an executive order that would provide temporary protection from deportation and work permits for approximately 5 million unauthorized immigrants. On Monday, the Supreme Court held oral arguments in U.S. v. Texas, a legal challenge to a parallel program like DACA for the parents of U.S. citizens and legal residents, known as DAPA. Much debate on this case has focused on the limits of presidential power and states’ rights.
But ultimately, it is about families like mine who risk being torn apart. Why does this matter? It matters because families are the bedrock of our society. The emotional harm of parental detention and deportation can shape a child’s future, as depression, anxiety, and anger can put a child at risk for difficulties later in life.
The MPI report examines the involvement of families with a deported parent and how it impacts our health and social service systems, as well as their needs and the barriers they face accessing such services. The study included locations with high levels of deportations, but did not represent all U.S. communities with parents who have been deported.
Children Experienced a Number of Harms Following a Parent’s Detention or Deportation
The report found that children experienced negative emotional and behavioral outcomes after a parent was deported. Many family members had problems communicating with detained or deported parents because of difficulties locating them and the great distances between their homes and detention centers or home countries. These difficulties exacerbated the emotional harm to children because children were unable to communicate with their parents before deportation and thus felt that their parents had simply “disappeared.”
Spouses and partners of detained parents reported suffering from depression and social isolation. Depressed parents have more difficulty supporting the healthy development of their children, leading to poor cognitive and behavioral outcomes. Generally, most families chose to stay in the United States after a parent, typically the father, was deported. This meant that the loss of a father, often the breadwinner, caused substantial financial stress. Ninety-one percent of deportees were men, or fathers. The emotional harm, financial stress, and housing instability led to declines in school performance.
As we hear commentary on U.S. v. Texas, I hope we remember that human lives will be affected by this ruling. I urge us to focus on the individual faces behind the process and to recognize that, regardless of their immigration status, those who benefit from programs like DAPA are our neighbors, often our friends, brothers and sisters; and those who are harmed by deportation of undocumented parents of citizen children are the classmates of our children.
It’s time to find a way to normalize the millions of undocumented workers in this country, many of whom have been living here for decades, are productive members of our society, and have citizen children.
In January of this year, former U.S. Immigration and Customs Enforcement assistant chief counsel Jonathan M. Love plead guilty to deprivation of constitutional rights under color of law. Yesterday, he was sentenced to 30 days in prison, 100 hours of community service, one year of supervised release, and a 10-year ban on practicing law.
Here's what Love did.
In 2009, an undocumented migrant named Ignacio Lanuza-Torres sought cancellation of removal. In court, Love said that Lanuza-Torres was ineligible for the relief because he'd voluntarily signed a document giving up his right to appear before an immigration judge to argue his case. Lanuza-Torres was ordered deported.
On appeal, his attorney, Hilary Han, "noticed something off" about the document. As Fox News Latino describes it:
The form Love submitted had a Department of Homeland Security header, even though it was dated Jan. 13, 2000 — nearly 20 months before the department was created in response to the Sept. 11 attacks. The form also had the signature of ICE officer Anthony Dodd, who processed Lanuza in Seattle in 2008. The form was supposed to date to 2000 and originate from the U.S.-Mexico border.
The document was forged.
And for that, Love is rightfully going to prison.
Throwback Thursday is back!
Today's featured scholar is Assistant Professor at the the University of Chicago's School of Social Service Administration Angela S. García. We'll be looking at her 2012 paper Return to sender? A comparative analysis of immigrant communities in ‘attrition through enforcement’ destinations.
In this article, García examines the link between sub-national immigration policy structures in the US -- particularly attrition through enforcement policies at the state and local level -- as well as immigrants’ settlement and residency behavior responsive to those policies. Analyzing data from two sending Mexican communities (Yucatán and Tunkás), García finds that migrants do not alter the duration of time they spend in receiving locales or change their state of residence due to restrictive subnational policies. Rather, economic and social factors more prominently shape immigrants’ settlement and residency patterns.
Her findings lead García to a bigger question, that of immigrant incorporation within restrictive receiving locales. For more on that, check out her later article: 40(12) Hidden in Plain Sight: How Unauthorized Migrants Strategically Assimilate in Restrictive Localities, Journal of Ethnic and Migration Studies, 1895-1914 (2014).
The Faculty Lounge posted a call for papers for a conference that ImmigrationProf Blog readers might be interested in.
Call for Papers: Sanford E. Sarasohn Conference on Critical Issues in Comparative and International Taxation II: Taxation and Migration, Saint Louis University School of Law, March 31, 2017, sponsored by The Center for International and Comparative Law of Saint Louis University School of Law, The Saint Louis University Law Journal, and The Sanford E. Sarasohn Endowment Fund
As ever growing numbers of individuals seek economic and political refuge in Europe and North America, and increasing numbers of individuals and businesses seek refuge from the tax burdens of their home jurisdictions in lower tax jurisdictions, these in- and out- migrations strain the national economies of affected countries causing them to modify their taxation rules and structures. This conference will explore the effects of taxation on migration and the effects of migration on taxation. Papers on any topic related to taxation and migration of individuals or entities are welcome but those offering a critical perspective or addressing the impact of taxation on, and taxation changes relating to acceptance of, migrants from conflict areas are preferred. Please submit paper proposal abstracts by e-mail to Professor Henry Ordower at firstname.lastname@example.org no later than May 25, 2016. Notification of proposal acceptance is targeted for July 1, 2016.
Professors Kelly Mulholland, Henry Ordower, and Kerry Ryan will convene the Sarasohn Conference in 2017 as day one of the two-day 20th Critical Tax Theory Conference. The Critical Tax Theory Conference will continue through Saturday, April 1, 2017 at Saint Louis University School of Law and will follow the standard paper/incubator format.
Click the link above for further details.
Peter Margulies -- DAPA and a Pragmatic View of Work Authorization and Family Fairness: Reply to Marty Lederman
Just as Solicitor General Donald Verrilli was off-base at Monday’s SCOTUS argument on DAPA in claiming that asylees lack a pathway to citizenship (see my post here), the usually careful SG (and the usually careful Marty Lederman here) failed to “get” current practice regarding work permits. The SG, seconded by Marty, claimed that current regulations allow “[m]illions” of people to get work permits without a lawful status, so that DAPA is not a major departure. Marty’s take on the Bush 41 Family Fairness program, wrongly cited as a precursor to DAPA, also showed little appreciation for how immigration law works in practice. As a longtime practitioner, I recognize immigration law includes many traps for the unwary – indeed, I’ve learned some lessons on the Immigration and Nationality Act (INA) since Monday myself! The following, based in part on the amicus brief I filed for ex-DHS Assistant Secretary for Policy Stewart Baker and others in U.S. v. Texas, seeks to demystify both work authorization and Family Fairness from a practitioner’s perspective.
First, consider the SG’s claim at the close of his rebuttal (Tr. 90) that “[m]illions” of people without a lawful status routinely receive work permits. The government’s brief, seconded by Marty, cites to the work permit regulation, 8 C.F.R. § 274a.12. A closer look at that very provision proves that it typically benefits aliens who already have a legal status. Alternatively, the regulation serves as a bridge for aliens with a colorable application for a legal status pending. See, e.g., 8 C.F.R. § 274a.12(a)(6) (authorizing a work permit for an alien engaged to a U.S. citizen; a fianceé or fiancé benefited by this subsection has a legal status pursuant to 8 U.S.C. § 1101(a)(15)(K)(i)). There’s more: 8 C.F.R. § 274a.12(a)(9) (work authorization for the spouse of a U.S. citizen awaiting approval of a petition for a visa as an Immediate Relative pursuant to 8 U.S.C. § 1101(a)(15)(K)(ii)). No need to stop now: see 8 C.F.R. § 274a.12(c)(6) (authorizing work permits for F-1 (student) visa-holders for a one-year period of practical training), and, finally, id. § 274a.12(c)(9) (authorizing work permits for noncitizens seeking adjustment to lawful permanent resident (LPR) status based on family, employment, persecution abroad, etc., who have "properly filed" a petition for such status).
The SG and Marty are right that these and similar cases add up to millions of work permits. However, the individuals who receive these work permits enjoy the imminent prospect of a legal status, without the daunting obstacles facing a prospective DAPA recipient. The vast cohort of people cited above either have a legal status, or will receive one within months. The relevant analog to DAPA under the work permit regulation is an individual who lacks a clear path to a legal status. In 1987, immigration officials assured Congress and the public that the total number of work permits granted to this cohort was so small that it was “previously considered to be not worth recording.” (See our brief at 11).
As we explain in our brief (p. 15), an unlawful entrant and prospective DAPA recipient (let’s call our client Gil) with a six-year-old U.S. citizen child will have to wait 25 years for a legal status. Immigration lawyers know this scenario well, but let’s play it out. For starters, client Gil will have to wait 15 years, until his six-year-old child turns 21. Senators Bobby Kennedy and Sam Ervin agreed in 1965 to keep this age floor on citizen sponsors, to prevent the “anchor baby” scenario tirelessly invoked by opponents of birthright citizenship. See 8 U.S.C. § 1151(b)(2)(A)(i). But that’s only phase 1 in Gil’s waiting game. In phase 2, Gil will have to leave the country to obtain a visa, since he was never inspected, admitted, or paroled. See 8 U.S.C. § 1255(a). When he leaves, if he was unlawfully present in the U.S. for at least a year (DAPA recipients must have lived in the U.S. since 2010), Gil will be subject to an additional 10-year bar on admission. See 8 U.S.C. §1182(a)(9)(B)(i). That’s a total of 25 years, including ten years abroad. (Some prospective DAPA recipients may have overstayed a tourist or student visa and not entered unlawfully, so the unlawful presence bars will not apply to them if they can adjust to LPR status in the U.S.; but well over half of prospective DAPA recipients are unlawful entrants subject to the bars.)
This scenario is harsh, as every immigration lawyer knows who has had to explain it to a client in Gil’s position. But the obstacles, in Congress’s view, serve immigration policy, by channeling foreign nationals toward legal immigration, which Congress expanded in 1965 and 1990. DAPA undermines that policy by making the precious asset of work authorization available to unlawful entrants whom Congress singled out for formidable obstacles.
Mention of the Immigration Act of 1990 highlights Marty’s stylized account of the Bush 41 Family Fairness program, which aided the spouses and children of 1986 Immigration Reform and Control Act (IRCA) legalization grantees. Marty cites the excellent Yale Law Journal article by Adam Cox and Cristina Rodriguez acknowledging that Family Fairness’s beneficiaries could obtain a lawful status under ordinary immigration law as IRCA grantees’ spouses and children, once those IRCA grantees became LPRs. However, Marty then second-guesses Cox and Rodriguez’s conclusion, asserting that IRCA grantees would have to wait a full five years for LPR status. Here, Marty falls victim to the same immigration gremlins who were at Monday’s argument, when the SG stated wrongly that asylees have no path to citizenship (they do; it’s five years from the grant of asylee status: see 8 U.S.C. § 1159(b)). In reality, pace Marty, IRCA grantees only had to wait a short one and a half years for LPR status. See id. § 1255a(b)(1)(A). That short time-frame, plus the 1990 Act’s huge increase in the numbers of visas for spouses and children of LPRs, set the stage for timely receipt of legal status by Family Fairness beneficiaries.
One could argue that the 1990 Act was signed into law (in November of that year) after Family Fairness, and so is irrelevant to immigration officials’ power when Family Fairness was announced (in February of 1990). However, as our brief explains (pp. 18-19) that view fails to understand the nature of Congress’s delegation of discretion to immigration officials. At its heart, deferred action serves as a stay of removal, preserving the status quo when a change would be disruptive or inefficient and a legal status is within the beneficiaries’ reach. To this end, immigration officials rolled out Family Fairness against the backdrop of extraordinary legislative-executive collaboration on immigration reform, which contrasts with today’s impasse between the political branches.
Prior to Family Fairness’s roll-out, both the House and Senate had voted separately to bar deportation of the children and spouses of IRCA grantees. See Josh Blackman’s Georgetown Law Journal Online piece here (pp. 121-25). By February, 1990, the dispute between the House and Senate was solely about the cut-off date for entry into the U.S. of those children and spouses – some legislators wanted a 1986 cut-off date, while others pressed for a later date that would shield more people. Informed observers, including immigration officials, knew that Congress would resolve this issue, and enact relief for this class. In the interim, rushing to deport children and spouses who already had a path to a legal status under existing immigration law seemed both harsh and disruptive. After all, those spouses and children would be able to obtain visas within a short period of time regardless, particularly when officials factored in the likelihood of further legislative immigration reform.
That’s a compelling case for a stay of removal to preserve the status quo, not unlike the analysis of Chief Justice Roberts in the 2009 stay of removal case, Nken v. Holder. Family Fairness was yet another variation on this traditional theme. Nken was a case about the equitable discretion of federal courts, while deferred action involves the equitable discretion of an administrative agency. But that distinction is immaterial. The crucial point is that deferred action that acts as a bridge to a legal status that is available within a reasonable time fits within Congress’s delegation of discretion to immigration officials. In contrast, DAPA grants a stay and the valuable asset of work authorization to individuals whose access to a legal status is highly contingent (because of the effect of the ten-year bar) and at best lies “far in the future,” as professors Cox and Rodriguez acknowledge in their Yale Law Journal article. (Indeed, even the Justice Department Office of Legal Counsel’s memo supporting DAPA concedes that “in most instances” (p. 29 n. 14) prospective DAPA recipients who were unlawful entrants would be subject to either a 3- or 10-year bar that would require them to spend years outside the United States.)
Family Fairness beneficiaries also did not have to contend with the bars on admission to the U.S. triggered by past unlawful presence, since Congress enacted those bars in 1996. Marty maintains that there was no "guarantee" Family Fairness beneficiaries would obtain visas after IRCA grantees became LPRs. That's literally true – immigration officials have rarely been in the business of issuing "guarantees" to foreign nationals under the INA. However, based on almost ten years of day-to-day supervision of immigration cases and fifteen more years spent writing and teaching in the field, I can say that spouses and children of LPRs not subject to one of the unlawful presence bars virtually always get visas if they apply abroad, assuming they submit appropriate identification and do not have a criminal record or an analogous disqualifying circumstance such as membership in a terrorist organization. Today, the three- and ten-year bars complicate matters for spouses or children who entered unlawfully and accrue unlawful presence in the United States. DHS can be very demanding about the “extreme hardship” required for spouses and children of LPRs and citizens to waive the bars. See 8 U.S.C. § 1182(a)(9)(B)(v). But the bars were not in effect in 1990, so this issue is irrelevant to discussion of Family Fairness.
In sum, I agree with Marty that comprehensive immigration reform is vital – I’ve called Congress’s failure to enact it a “national disgrace” (see my post here). But efforts to improve the current situation will founder if they fail to address the practical context of immigration law. Marty and the SG have substituted a stylized account for the statutory building blocks that practitioners work with daily. Those daily encounters demonstrate DAPA’s marked departure from settled practice under the INA.
Yesterday, the U.S. Supreme Court decided Molina-Martinez v. United States. The case involved a sentencing decision in a case involving an illegal reentry into the country conviction of a Mexican noncitizen.
Oyez describes the case as follows:
Saul Molina-Martinez pleaded guilty to being in the United States illegally following deportation proceedings that stemmed from his felony convictions. The district court accordingly sentenced Molina-Martinez to 77 months in prison, pursuant to the sentencing range established in the U.S. Sentencing Guidelines for his criminal history category. Under the Sentencing Guidelines, prior sentences are counted as a single sentence if they were imposed on the same day unless the offenses in question were separated by an intervening arrest. Molina-Martinez’s prior offenses were not separated by an intervening arrest, so when his probation officer calculated his criminal history points and concluded that they placed him in category VI, he erred; Molina-Martinez should properly have been placed in category V, which carries a lower sentencing range of 70-87 months. Molina-Martinez appealed his sentence on the grounds that the district court erred in sentencing him based on the incorrect criminal history category. The U.S. Court of Appeals for the Fifth Circuit held that, despite the error in calculation, Molina-Martinez failed to show that the error affected his substantial rights and therefore affirmed his conviction and sentence.
The question presented to the Supreme Court was when an error in the application of the U.S. Sentencing Guidelines results in the application of the wrong Guideline range to the defendant, should the appellate court presume that the error affected the defendant’s substantial rights?
The Supreme Court reversed the Fifth Circuit. Justice Kennedy delivered the opinion of the Court: Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan, joined. Justice Alito, joined by Justice Thomas, concurred in part and concurred in the judgment.
Justia synthezisez the holding: Courts reviewing Guidelines errors cannot apply a categorical “additional evidence” rule where a court applied an incorrect range but sentenced the defendant within the correct range. A defendant who shows mistaken application of an incorrect, higher range will, generally, have demonstrated a reasonable probability of a different outcome, sufficient for relief if Rule 52(b)’s other requirements are met. In this case, given the sentence imposed, and that the court said nothing to suggest that it would have imposed the same sentence regardless of the range, there is at least a reasonable probability that the court would have imposed another sentence had it known that 70 months was the lowest sentence the Commission deemed appropriate. The Court noted that its holding is consistent with the approach taken by most Courts of Appeals and that remanding for resentencing is less costly than remanding for retrial.
Doug Berman analyzes the Court's opinion for SCOTUSblog.
The UN Refugee Agency reports on the latest refugee tragedy from Europe. A UN Refugee Agency team has interviewed survivors of an overcrowded boat that sank in the Mediterranean in what could be one of the worst tragedies involving refugees and migrants in the last 12 months.
If confirmed, as many as 500 people may have lost their lives when the large boat went down in the Mediterranean Sea at an unknown location between Libya and Italy. The 41 survivors – 37 men, three women and a three-year-old child – were rescued by a merchant ship and taken to Kalamata, in the Peloponnese peninsula of Greece on April 16. Those rescued include 23 Somalis, 11 Ethiopians, 6 Egyptians and a Sudanese.
The survivors told UNHCR staff that they had been part of a group of between 100 and 200 people who departed last week from a locality near Tobruk in Libya on a 30-metre-long boat.
"After several hours at sea, the smugglers in charge of the boat attempted to transfer the passengers to a larger ship carrying hundreds of people in terribly overcrowded conditions," UNHCR said in a statement. "At one point during the transfer, the larger boat capsized and sank."
The 41 survivors include people who had not yet boarded the larger vessel, as well as some who managed to swim back to the smaller boat. They drifted at sea possibly for three days before being spotted and rescued on April 16.
UNHCR visited the survivors at the local stadium of Kalamata where they have been temporarily housed by the local authorities while they undergo police procedures.
So far this year 179,552 refugees and migrants have reached Europe by sea across the Mediterranean and Aegean. At least 761 have died or gone missing attempting the journey.
UNHCR continues to call for increased regular pathways for the admission of refugees and asylum-seekers to Europe, including resettlement and humanitarian admission programmes, family reunification, private sponsorship and student and work visas for refugees. These will all serve to reduce the demand for people smuggling and dangerous irregular sea journeys.
Wednesday, April 20, 2016
The Executive Office for Immigration Review (EOIR) has recently posted a position announcement for an "Assistant Chief Immigration Judge for Vulnerable Populations."
The official position announcement, which is available here, is a bit unclear on what precisely the job entails. The announcement notes that the individual will serve "as a principal assistant to the Chief Immigration Judge and/or Deputy Chief Immigration Judge in managing and coordinating Immigration Judge activities throughout the United States and in supervising the administrative operations of the program," and also suggests that the position will involve overseeing one's own courtroom and case docket. The current EOIR website for the Office of the Chief Immigration Judge also notes that IJ Amy Hoogasian of the San Francisco Immigration Court (a former ICE trial attorney) "is currently responsible for vulnerable populations (acting)."
Guest blogger: Erin Caliri, third-year law student, University of San Francisco
Overworked and under-serving the immigrant population. These are critiques directed at public defenders. Public defenders—who represent the indigent, including indigent noncitizens who get caught up in the criminal system in the United States.
The consequences are greater for noncitizens in the criminal system. Criminal dispositions can lead to deportation or mandatory detention. With the fear of deportation, the fear of losing their families, and the fear of never returning to their home in the United States, the immigration consequences for an immigrant go way further than a criminal penalty.
Public defenders have the duty to investigate, advise, and defend clients who are not citizens of the United States. In 2010, the Supreme Court arrived at this holding in Padilla v. Kentucky. This includes going further than just asking, “Where were you born?” But pushes the attorney to ask about familial status, years in the United States, naturalization, etc. If the client is not a citizen, the defense attorney must then advise the client of immigration consequences. The advice doesn’t stop there but then turns to finding alternative non-deportable options for the client. At that point, zealous advocacy is required by the attorney. The main goal becomes keeping your client in the country with no immigration consequences.
Public defenders have a duty, and the duty must be exercised. The burden defense attorneys have to investigate, advise, and zealously defend clients who are not citizens is not impossible. It is not even unrealistic. The times it becomes overwhelming are the times that employing immigration counsel in a permanent or part-time capacity becomes necessary. The more lawyers the better. Immigration law is complicated. That is why an immigration attorney is necessary to navigate the intricacies of immigration law as well as give full attention and focus on preserving the goal of the client in not facing immigration consequences.
With the help of the Immigrant Legal Resource Center and easily attainable immigration-criminal resources, the task for a public defender representing an immigrant in a criminal matter is not as daunting as it seems. However, with the caseload of public defenders, sometimes being hundreds at a time, immigrant clients can get glossed over. This is a problem—especially when these are the cases that should get prioritized due to the conviction consequences that apply to noncitizens.
In 2015, the ACLU brought a lawsuit against Fresno County’s public defense system for denying thousands of defendants their constitutional right to adequate representation. According to the ACLU complaint, in Fresno County, 60 public defenders work 42,000 cases every year. The ACLU also claimed that minorities make up about 70 percent of those arrested in Fresno—and immigrants are often instructed to plead guilty without being told how it might affect their immigration status. Fresno County does not employ in-house immigration counsel to help noncitizens navigate their criminal case.
On their own, public defender offices have to allocate funding in order to create an in-house immigration attorney position. This is extremely difficult for public defender offices that are already short on funds and need to hire more public defenders to begin with. The push for the employment of immigration attorneys needs to fall on the County. San Francisco is only one of a few counties in Northern California that hires a full-time immigration specialist in their public defender’s office. According to the U.S. Census in 2014, nearly 36 percent of San Francisco residents are foreign born. Additionally, approximately 7 percent of the 23,000 clients served annually by the San Francisco Public Defender’s Office are undocumented. That is 1 immigration attorney for about 161 people. Despite the clear need to hire more immigration attorneys, San Francisco Public Defender’s Office does not get additional city funding to create more positions.
Even though San Francisco only has one attorney designated for all criminal and immigration cases, one is a start. We must urge other counties, like Fresno County, to make a position for one additional attorney to ease the intersection of immigration and criminal cases. This will help prioritize the need and address the risk that immigrants face in the criminal system. The public defender’s office can be there to further assist their client by providing the best defense without sacrificing immigration consequences in the process. As attorneys we must work together. We must forge a relationship that collaborates and incorporates a holistic approach to representation.
Guest blogger: Victor Ng, second-year law student, University of San Francisco
On Monday, April 18, 2016, the Supreme Court heard oral arguments for United States v. Texas, No. 15-674. This case concerns whether President Obama has the authority via executive order to allow undocumented immigrant parents of citizens or lawful permanent residents to apply for Deferred Action for Parents of Americans and Lawful Permanent Residents, more commonly known as DAPA. DAPA would allow these parents to obtain work permits and stop them from being deported.
Here are some ways this could play out.
- The Justices Agree President Obama Acted Within His Authority
If a majority of the court decides that President Obama acted within his authority, the executive order stays. In other words, DAPA would be in place and expansion of benefits to undocumented immigrants would be permissible. But what it also really signals is the power the president has over such immigration matters. It leaves more room for the president to act pursuant to his/her constitutional authority—implied or explicit. This, however, also is a double-edged sword. If a pro-immigrant president were elected, that power would be exercised toward the undocumented immigrant’s favor. However, if a president with less sympathetic view is elected, not only could executive orders signed by previous presidents be revoked, but harsher orders could also be issued and more likely survive constitutional challenges.
- The Justices Deem President Obama Acted Outside of His Authority
If a majority is reached that President Obama acted outside of his authority, this could have adverse impact beyond DAPA. The legality of other immigration reliefs such as DACA and H-4 EAD through the president’s executive order also could be challenged on similar grounds. Parties with less friendly immigration views are likely to succeed challenging the president’s executive orders on immigration.
- Split Between the Justices
Numerous news outlet and legal analysts predict that this is most likely a 4-4 decision. If it is a 4-4 decision, the lower court‘s decision stays. This issue can be brought up again once the Supreme Court has 9 justices. In this scenario, the future of undocumented immigrants would depend on a few key events such as the nomination and confirmation of a new justice to fill the current vacancy in the Supreme Court, the presidential election, and congressional elections.
With the current Republican led congress, no significant immigration reform has passed. According to Ballotpedia, “a total of 469 seats in the U.S. Congress (34 Senate seats and all 435 House seats) are up for election on November 8, 2016.” If the Democratic Party is able to achieve majority in the house and senate, meaningful immigration reforms through legislature is more likely to pass, if a democratic president were elected. Such legislative reform is more likely to withstand constitutional challenges since “the Supreme Court has declared unequivocally for over a century that the federal government has the exclusive power to make and enforce [immigration] law.”
Further, if a democratic nominated Supreme Court justice with views similar to Justice Ginsburg, Justice Sotomayor, Justice Breyer, and Justice Kagan is confirmed by a democratic controlled senate, DAPA may be ruled a constitutional exercise of the president’s power.
Last, it is also important to consider how the presidential primaries will play out and how the Supreme Court nomination might be used as a campaign tool and thus impact immigration. For example, if Donald Trump wins the GOP nomination, he has expressed that he would nominate a Supreme Court justice on the conservative side. He would use this as a selling point for his campaign to generate votes. The GOP has two options. They could either go with Trump’s potential nomination, or confirm Judge Garland, who is known as a “moderate” to mitigate their risk. Or, alternatively, if Hillary Clinton is the democratic nominee, the GOP might confirm Judge Garland soon after the elections to avoid the possibility of having a justice that’s even more liberal should the GOP lose the presidential election.
This is by no means an exhaustive list of possibilities. The Supreme Court might even decide that the states have sustained no injury and therefore do not have standing to bring this case in federal court, and thus side stepping the immigration issue. Whatever the outcome, it appears that the elections and Supreme Court nomination also will have immediate impact on DAPA.