Tuesday, May 31, 2016
Remembering Esequiel Hernández, Jr. - 19 Years Ago, U.S. Marines Shot and Killed This U.S. Citizen on American Soil
LexisNexis® Legal Newsroom Immigration Law reminds us of of a sad casualty in U.S. border enforcement.
Every year around this time I remind readers: "In 1997, U.S. Marines patrolling the Texas-Mexican border as part of the war on drugs shot and killed Esequiel Hernández, Jr. Mistaken for a drug runner, the 18 year old was, in fact, a U.S. citizen tending his family's goats with a .22 rifle. He became the first American killed by U.S. military forces on native soil since the 1970 Kent State shootings."
This PBS DVD, The Ballad of Esequiel Hernández, is a must-view for all who care about our border policies.
On April 15, the Connecticut International Law Journal hosted a symposium on the Global Refugee Crisis with three fascinating panels and a keynote address. Videos of the panels and the keynote are now available on the symposium website. For further descriptions of the panel topics and participants, click here.
Immigrant advocates are used to fighting uphill battles, in courtrooms, in Congress and, yes, in the media. But many of us were horrified to hear lopsided, derogatory reporting on Central American asylum-seekers from NPR this morning, which has done so many more balanced stories in the past (including at least one by the same reporter). “Disappointing,” said one of our colleagues. “Appalling,” said another. A clinician confessed she “was yelling at my radio this morning.” I confess I was swearing at it, despite having a child in the back seat of the car.
Words matter. The word “amnesty” has become politically toxic since its more benign beginnings as a descriptor for the Reagan-era legalization program that was part of the Immigration Reform and Control Act (IRCA) of 1986. Now, amnesty is used by anti-immigrant entities to decry every humble effort to restore a degree of sanity or humanity to our immigration laws, very much including prosecutorial discretion efforts.
So, hearing Central American refugees described as applying for amnesty rose above mere inaccuracy, and became part of the toxic rhetoric surrounding all immigration. As a letter quickly signed by dozens of law professors and lawyers responded,
Amnesty simply does not exist today, except as a derogatory term used mostly by immigration restrictionists…By contrast, asylum law permits those fleeing persecution to seek asylum at and inside our borders, and our international refugee convention obligations prohibit us from returning them to the country where they have a well-founded fear of persecution. The migrants described in this story who turned themselves in to immigration officials to seek asylum are obeying our laws, and characterization of them as lawbreakers—which is implied by the erroneous “amnesty” term, is absolutely wrong as a legal matter.
Rhetoric shapes policy, as my colleague Emily Torstveit Ngara has powerfully shown, and conflating our refugee convention obligations with the political third-rail of “amnesty” from a media source as reliable as NPR can do enormous damage. This is especially true where the Administration itself seems to back away from embracing refugee law, and position these refugees as people seeking a benefit they are not eligible for.
While the amnesty/asylum mistake may have just been a mistake, albeit a harmful one, almost as disturbing was the casual use of “catch and release” as though that phrase had legal meaning behind it. It does not. The government has no policy called “catch and release,” and the only entities I can find who use it are anti-immigrant entities like NumbersUSA and CIS (hyperlinks intentionally omitted). Even newspapers that use the term link back to those organizations, not to government policy. By adopting the casual jargon of Customs and Border Protection officials, the reporter dignified a phrase that reduces immigration to policy to sport—comparing refugees fleeing violence to fish and sport. For those of us who “catch” those lucky enough to be released from family detention, we know we are seeing traumatized, fearful people who are desperate for safety. This is not a sport for them, but a matter of life and death, and jaunty cool-kid phrasing like “catch and release” has no business being part of the discussion.
And beyond legal terminology and harmful rhetoric, the story depicted a world in which the wrongs of 2014 (hieleras, overcrowding, and “dirty bewildered young immigrants,” as the reporter described them) had been righted by the construction of new facilities. As lawsuits and reports keep showing, that is far from the moral and legal truth. Legally, there is no justification for locking up individual families as a general policy of deterrence against future would-be refugees. Morally, we should be appalled that our government houses these families in conditions where children cannot run and play like children, where medical care is inadequate, and where access to legal representation is sharply limited. Minimizing these ongoing harms with reference to “well-run church camps” (itself a correction from the on-air “cheery church camps”) is simply wrong, and in poor journalistic form to omit any mention of the other (strong and well-documented) side of the family detention issue.
Hopefully tomorrow morning, we can just focus fighting the frightening lawlessness of the presumptive Republican Presidential nominee. But in the meantime, let’s make sure the more balanced areas of the media play fair to an issue of the utmost importance to our commitment to the rule of law, to justice, to human rights, and to the well-earned dignity of the people seeking asylum in this country.
Elena Pineda, 81, and her daughter Mary Jennings, 57, attend a rally for Donald Trump in Fresno on Friday. Some of Jennings' family have stopped speaking to her over her support for Trump. (Robin Abcarian / Los Angeles Times
Here is an Asian-Americans for Trump Facebook page.
EU referendum: Concern over immigration delivers a 'significant' poll boost to the Leave campaign as voters react to claims over UK border control
Credit: ALESSANDRO BIANCHI/ ALESSANDRO BIANCHI
Polls show that the vote will be close on an upcoming referendum on whether the UK should remain in the European Union
The Telegraph reports that a new poll shows that public concern over immigration has delivered a boost to the "Leave" campaign amid growing concern about Britain's ability to control its borders.
Leave now has 46 per cent of the vote share, with Remain on 51 per cent. The five point gap has been cut from 13 points last week.
The poll was carried out last week when new figures revealed that migration had risen to record levels; forecasts showed that immigration would add 4 million people to Britain's population; and images of migrants drowning in the Mediterranean in their attempts to get to Europe emerged.
The article linked above lists the pros and cons of a British exit (Brexit) from the EU.
Flag of the European Union
The International Office for Migration (IOM) Greece has published a report based on interviews with 1,206 unaccompanied child migrants in Greece. Some 508 said that they would not consider returning to their countries of origin because it was their intention to reach a northern European country and 282 expressed the wish to return back to their country of origin. The remainder initially expressed willingness to return home but later changed their minds and decided to stay in Greece.
By the end of the project in late 2014, which was designed to develop standard operating procedures for assisted voluntary return and reintegration of unaccompanied migrant children, 59 of the children returned home with IOM return and full reintegration assistance. Another 41 from Egypt returned home and received post arrival reintegration assistance.
The report: Addressing the Needs of Unaccompanied Minors (UAMs) in Greece showed that the 508 were intent on reaching their final destination no matter what services were made available to them in Greece, as they thought that they would have a better future in another European country.
Of these, some 32 percent said that their final destination would be Germany, 23 percent the United Kingdom, 22 percent Sweden, 9 percent Norway, 5 percent France and 9 percent other European countries, such as Austria, Belgium, the Netherlands, Denmark and Finland.
The majority of those who intended to continue their journey to northern Europe were boys aged between 15 and 17, primarily from Afghanistan and Pakistan.
Download a copy of the report here.
Monday, May 30, 2016
Meyers and Meyers LLP reminds us that, on Memorial Day, we remember those men and women who have died in our nation’s service. Did you know that non-citizens have a long and proud tradition of serving in the U.S. military? In fact, there are thousands of men and women in uniform who were not born in the United States who are willing to sacrifice everything for our country.
Did you also know that one of the first U.S. service members to die in the U.S. – Iraq War was Lance Cpl. Jose Gutierrez, a non-citizen from Guatemala? He was killed in a tank battle in Iraq in March, 2003. According to CBS News, “The heroism and sacrifice of non-citizens was barely known — until Lance Cpl. Jose Gutierrez died in battle in Iraq. He came from Guatemala, and he came to the United States illegally. We can tell you how his story ended. He was killed in a tank battle in southern Iraq on March 21, .”
The Washington Post reports that a number of Philadelphia-based churches that are affiliated with the New Sanctuary Movement have established a hotline in response to DHS's announcement in January that it would conduct immigration enforcement raids. In an interview with Father John Olenick, pastor of Visitation Blessed Virgin Mary (BVM) Roman Catholic Parish, Father Olenick describes the fact that immigrants from all over the world attend his church, the work that the Movement has done to advocate for immigrants in the Philadelphia area, the devastating effects of immigration enforcement on congregations and communities, and the theological basis for extending welcome and hospitality to immigrants.
One of the films to be shown in the Law and Film Series at the 2017 Annual Meeting of the Association of American Law Schools in San Francisco focuses on immigration.
Thursday, January 5, 2017 6:30 pm
AALS Law and Film Series – The Feature Film Selection: La Jaula de Oro/The Golden Dream
La jaula de oro ("The Cage of Gold"/ “The Golden Dream” (2013) is a Mexican feature film directed by Diego Quemada-Díez. The film features an ensemble cast of Central American younger undocumented immigrants fleeing Guatemala, and who make their way to the United States in a harrowing fashion by foot and by “la bestia,” the train that snakes its way to the border, with immigrants clinging to it at great peril. This is a timely film, made with great skill and narrative power. It has begun to be shown on college campuses, and it will be discussed by immigration law professor Michael A. Olivas (Houston) and Jaula producer Luis Salinas, an award-winning filmmaker.
Morning at the MSF hospital compound in Bentiu, South Sudan. The two doctors, Jiske Steemsna (left) and Navpreet Sahsi, sit in front of the tents that serve as living quarters for the international workers during their three-to-six-month stints. David Gilkey/NPR
NPR spent five days and five nights inside the only hospital in a war-torn corner of South Sudan. For the aid workers, life comes down to lentils, rare TV breaks — and sticking by your patients, no matter the odds. A glimpse inside the camp.
This story is part of NPR's podcast Embedded, which digs deep into the stories behind the news. Click here to listen to the podcast.
Sunday, May 29, 2016
The Associated Press is reporting that the United Nations High Commissioner on Refugees says over 700 migrants are feared dead in three Mediterranean Sea shipwrecks south of Italy in the last few days as they tried desperately to reach Europe in unseaworthy smuggling boats.
National Poetry Slam Champion George Masao Yamazawa is the son of Japanese immigrants — but he doesn't know how to speak Japanese. Thus, he's afraid of being the "broken chain" in his family's lineage.
In his poem "The Bridge," which Yamazawa performed at a slam poetry competition in December, he captured the identity crises many immigrants face in America.
Read more on this story here.
The Washington Post reports that, as protesters outside a rally in San Diego on Friday afternoon chanted obscenities, waved Mexican flags and clashed with police, Donald Trump, the Republican Party’s presumptive presidential nominee, gave a fiery speech and sought to shame one of this city’s federal judges, Gonzalo Curiel, who is hearing a class-action lawsuit against Trump University. The lawsuit is one of three that accuse Trump University of fleecing students with unfulfilled promises to teach secrets of success in real estate.
Trump delivered a monologue about the years-old case involving students who claim they were defrauded by Trump’s real estate “university.” Trump called Judge Curiel “a hater of Donald Trump” and “very hostile” person who had “railroaded” him. “I’ll be seeing you in November, either as president…” Trump saidf. “I think Judge Curiel should be ashamed of himself. I think it’s a disgrace that he’s doing this.” Trump brought up Curiel’s ethnicity: “The judge, who happens to be, we believe, Mexican…I think the Mexicans are going to end up loving Donald Trump.”
One has to wonder whether Trump's harsh words are designed to convince Judge Curiel to recuse himself from the case.
For the record, Judge Curiel was born in East Chicago, Indiana. He is the son of immigrants. Curiel received his BA and law degrees from Indiana University. He had experience in private practice and then served as an Assistant United States Attorney in the Southern District of California from 1989 to 2002 and in the Central District of California from 2002 to 2006. While in the Southern District, he served as Chief of the Narcotics Enforcement Division from 1999 to 2002. Curiel was appointed Judge of the Superior Court of San Diego in 2007, which is the position he held until his appointment to the federal bench. Nominated by President Obama, Curiel was confirmed by the Senate ion 2012.
UPDATE (June 3): Donald Trump has continued his attacks on Judge Curiel. In an interview with the Wall Street Journal ("Trump Says Judge’s Mexican Heritage Presents ‘Absolute Conflict’ ", Trump claims that Judge Curiel has a conflict of interest because of his Mexican ancestry, a charge drawing criticism from legal observers. Trump thus escalated his attacks on the federal judge presiding over civil fraud lawsuits against Trump University.
As a legal matter, Trump is off base if he is claiming that Judge Curiel's ancestry alone warrants disqualification. In 1974, African American Judge Leon Higginbotham Jr. soundly rejected the argument that his African American ancestry disqualified him from hearing a civil rights case involving discrimination against African Americans. See Pennsylvania v. International Union of Operating Engineers, 388 F. Supp. 155 (E.D. Pa. 1974). As Judge Higgintbotham put it,
"To suggest that black judges should be so disqualified would be analogous to suggesting that the slave masters were right when, during tragic hours for this nation, they argued that only they, but not the slaves, could evaluate the harshness or justness of the system."
UPDATE (June 4): Trump continues the attacks and criticism of respected federal Judge Curiel. It makes one wonder what kinds of judges a President Trump would appoint and whether he would respect an independent federal judiciary.
Saturday, May 28, 2016
The Long Beach Press Telegram has a powerful column written by two former Long Beach, CA residents who were deported to Cambodia. Sophea Phea and Veasna Seng came to the US as children with their families, who were refugees. They write:
"We were deported to Cambodia by the U.S. government. We are what the Department of Homeland Security calls 'Priority 1' for deportation — we were classified as “threats to national security, border security and public safety,'" referencing the enforcement priorities set forth by the Obama Administration in the November 20, 2014 Memo issued by DHS Secretary Jeh Johsnon.
"In reality, we are people who made mistakes at a young age, 22 and 21, respectively, and like others with criminal histories, we were labeled 'criminal' for life. Additionally, because we held the immigration status of 'permanent resident' and not 'citizen,' our label became 'criminal alien,' subject to permanent deportation.
As children in Long Beach during the 1980s and 1990s, we quickly learned to survive the realities of poverty. We didn’t have many choices. We grew up hearing gunshots at night. In school there was fighting, riots, drugs and guns. We wanted to fit in and be accepted, but instead we had to learn to survive."
Their story is familiar to viewers of the documentary film Sentenced Home, which focused on the experiences of three Cambodian immigrants who came to the US as young children, settled in the Seattle area and faced deportation. (The film follows two of the three who were deported as they attempt to settle in Cambodia). Sentenced Home was released about 10 years ago, in 2006. Sadly, the experiences of Cambodian and other immigrants who have been deported continues on.
Photo via The San Diego Union-Tribune
Yesterday we heard from San Diego County Superior Court Judge Eugenia Eyherabide. Judge Eyherabide’s background is in prosecution at both the state and federal level.
She spent the majority of our discussion talking about the differences between the federal and the state criminal systems. The state prosecutes a majority of the crimes and the federal government takes more of the high profile cases.
However, the immigration consequences for a criminal conviction in either system are similar. Defendants may be removed from the country if they have a criminal record, depending on the type of crime and their immigration status.
Given that San Diego is so close to the border, the state courts here see “many” defendants who are not United States citizens. While the state does not criminalize re-entry, criminal convictions can have negative consequences on a person’s immigration status. Judge Eyherabide emphasized the importance of advising defendants at plea hearings about these consequences, which will prevent opening the plea up to an appeal.
Like prosecutors, judges are given the opportunity to exercise discretion. For example, in California, judges used to be able to either give defendants a prison sentence or put them on probation. If the defendant was sent to prison and did not have “lawful status” they would be deported after they served their time. But, if the judge used their discretion to order probation, the immigration consequences might not be as severe, depending on the amount of time and type of conviction.
Unfortunately, recently, the legislature in California has changed the law, and judges are not given as much discretion at sentencing.
Guest post, Julia Ponce, student at The Maurice A. Deane School of Law at Hofstra University
A mother and child sit outside a federal court room on a Friday morning. The child cries into his mothers’ shoulder. She consoles him and tries to shield his face for none to see.
We proceed to enter Judge Janis L. Sammartino’s courtroom. She has full docket of drug related cases that she will be sentencing today, and already two attorneys on the right side of the courtroom are visibly negotiating a defendant’s sentencing recommendation. Never having witnessed this type of proceeding before, it is shocking how quickly a person’s life and liberty are decided. It's a matter of minutes. To my dismay, two of the defendants share my last name, both brothers, and gang members with felony drug convictions. I can’t help wondering if they are of El Salvadoran descent, and how such cases perpetuate the stereotype of Salvadorans as gang members or “mareros.”
It is an all too familiar story of growing up in a poor barrio, surrounded by drugs, gang and street life. However, these two brothers had choices to make, and unfortunately for the younger brother, he chose to follow in the footsteps of his older brother, seventeen years his senior and addicted to drugs since the age of seventeen. Fortunately for both, Judge Sammartino opts in each of their cases to apply the low end of their sentencing range. Their parents and loved ones sit in the courtroom anxiously awaiting their fate. The older sibling gets 97 months in a facility in Oregon on his own request so he can avoid the temptations that lurk behind the locked doors of the prison system. The younger sibling gets 30 months and is recommended to a drug treatment program. Luckily for both they are US citizens, and cannot be deported based on their felony convictions.
Friday, May 27, 2016
Guest post by Alejandro Cuautli, student at Northern Illinois University College of Law
At the Otay Mesa Detention Facility, we met with Judge McSeveney, one of the immigration judges that presides over hearings for detained immigrants. Entering the courtroom, one can see how small it is, just having enough space for the detainee, counsel, the judge and family members who may sit at the back of the courtroom.
Judge McSeveny gave us his point of view of the proceedings are handled in his courtroom. He is in a division that hears cases of detained immigrants that have mental health problems and makes sure that their needs are met. Judge McSeveny explained the rights that immigrants have, such as having a bond hearing after they have been detained for 180 days.
He made it seem that detained immigrants have a decent chance of getting relief, but only those that have been consistent with their story from the start. For those immigrants that have changed their story from the moment they are detained by border patrol and then speak to an asylum officer, the chances of any relief are decreased drastically.
While the consistency of the detained immigrant's story is one factor affecting their chance at relief, another factor is access to counsel. Detainees have the right to counsel at their expense. I feel that this is the breaking for most detained immigrants, especially those that have been detained at the border. They have no clue of how or where to hire an attorney, nor have the means to afford one.
Guest post by Manolo P. Morales, student, McGeorge School of Law
It’s not a jail. It’s not a prison. It’s not a correctional facility. These assertions, while technically accurate, are meaningless as one arrives at the Otay Mesa Detention Facility. Multiple fences separate the interior of the building from the outside world and visitors must past through prison-like security gates before being allowed inside.
40% of the detainees in this facility are from Mexico, while El Salvador, Guatemala and Honduras make up another 21%. Similar to prisons, each detainee is processed, sorted and separated upon arrival into risk levels that will dictate the person’s freedom within the facility.
While moving around the facility, there was virtually no difference between this detention facility and a medium-security state or federal penitentiary. A central corridor running down the middle of the building acts as the main artery connecting the various services: medical, exercise rooms, cafeterias and even a chapel. Like an air traffic controller, guards sit in a window-filled room and control access to this main corridor. More than once, our tour had to pause while detainees were moved around us.
How does a person end up in a facility like this? According to the ICE agents we spoke to, over 90% of the detainees are mandatorily there under immigration law. Over the past decades, Congress has steadily expanded the application of mandatory detention for persons suspected of unlawful migration. The result? Over 33,000 beds are filled each day with people who have immigration issues.
With an average wait time of 32 days, detainees at Otay Mesa are typically denied asylum and ultimately removed back to their country of origin in less than a month. Of course, average wait times mask the much, much longer cases and recent statistics showing up to 800 days waiting for an immigration hearing.
The Boston Globe has an article on Norma Torres Mendoza, a Kennedy School of Government graduate who drove her mother (who is undocumented) over 2,000 miles from Texas to Massachusetts in order to avoid the risk of being detected by immigration authorities on a domestic flight. Mendoza is a recipient of DACA. The article reports that she plans to return to Texas to begin a fellowship with Mi Familia Vota, a nonprofit organization that works with the Latino community.
Immigration Article of the Day: Sufficiently Safeguarded?: Competency Evaluations of Mentally Ill Respondents in Removal Proceedings by Sarah Sherman-Stokes
Sufficiently Safeguarded?: Competency Evaluations of Mentally Ill Respondents in Removal Proceedings by Sarah Sherman-Stokes, Boston University School of Law Immigrants' Rights Clinic May 13, 2016 67 Hastings Law Journal 1023, May 2016 Boston Univ. School of Law, Public Law Research Paper No. 16-17
Abstract: In this Article, I examine the current regime for making mental competency determinations of mentally ill and incompetent noncitizen respondents in immigration court. In its present iteration, mental competency determinations in immigration court are made by immigration judges, most commonly without the benefit of any mental health evaluation or expertise. In reflecting on the protections and processes in place in the criminal justice system, and on interviews with removal defense practitioners at ten different sites across the United States, I conclude that the role of the immigration judge in mental competency determinations must be changed in order to protect the fundamental fairness of the proceeding. Specifically, I propose a central role for mental health professionals, whose expertise, evaluation, and testimony can inform the court and lead to a more thorough and fair decision making process.