Tuesday, January 31, 2017

Sanctuary Cities are Safe, Despite Trump’s Executive Order by Pratheepan Gulasekaram

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In Sanctuary Cities are Safe, Despite Trump’s Executive Order, Pratheepan Gulasekaram for the ACS blog concludes that 

"Ultimately, Trump’s executive order on interior enforcement is cynical political grandstanding. In the final legal analysis, however, states and localities stand on firm ground when they commit to maintaining their inclusive policies. More importantly, these acts of state and local inclusion are critical for our broader public debate on immigration policy. Over time, Trump might be able to ramp up the federal immigration apparatus to serve his blunderbuss enforcement goals. But, he should take heed of the voices and choices of dozens of states and hundreds of cities that are lawfully resisting his xenophobic immigration bluster. "

KJ

January 31, 2017 in Current Affairs | Permalink | Comments (0)

Statement of Linda A. Klein, president, American Bar Association Re: Recent executive orders on immigration

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Statement of Linda A. Klein, president, American Bar Association Re: Recent executive orders on immigration

Our nation has the right to protect its borders to keep our citizens safe. At the same time, protecting the rights of the most vulnerable is an important tenet of our country.  We do both within the bounds of our Constitution and the rights it secures.

The American Bar Association is concerned by significant portions of the immigration-related executive orders issued on January 25 and 27, 2017, regarding border security, immigration enforcement and terrorism.  Together, they make significant changes to our nation’s immigration policies and jeopardize fundamental principles of justice, due process and the rule of law. 

Our nation must protect the rights secured by the U.S. Constitution, including those of noncitizens.  Drawing on the 14th Amendment and other provisions, the Supreme Court has held that many of these rights cover all “persons” within the United States, regardless of citizenship or status.

While every sovereign nation has the right to secure its borders, any specific enforcement efforts must avoid sweeping bans based on religion or national origin. 

The Jan. 25 executive orders on border security and immigration enforcement will likely have an even larger impact on our immigration system. The orders call for the establishment of new detention facilities along the southwest border, already at an all-time high, and require that all persons be detained throughout their removal proceedings.  Detention is a serious deprivation of liberty that separates families. The ABA therefore opposes detention except in extraordinary circumstances, such as a threat to public safety or flight risk.

The order further expands the use of expedited removal through which an individual can be deported without an opportunity for a hearing before an immigration judge.  The ABA maintains that removal decisions should be made only by impartial adjudicators, preferably immigration judges, following a formal hearing that conforms with accepted norms of due process. Under the rule of law, we owe due process to all, including those who face deportation.

The ABA has an interest and responsibility to protect the rights guaranteed by the Constitution and ensure the sanctity of the rule of law. Our association sponsors projects along the southern border that provide legal information and representation to detained, indigent adults and children and provide training and technical assistance to pro bono attorneys and legal service providers. All of this to ensure access to justice for all.

The Jan. 27 executive order—which indefinitely bars Syrian refugees from entering the United States, suspends all refugee admissions for 120 days and blocks refugees and other citizens of seven Muslim-majority countries from entering the United States for 90 days—raises several constitutional questions. Some of these have already been challenged in federal court. Additional litigation is bound to follow.

This order comes at a time when we are witnessing the highest levels of refugee displacement since World War II. It seriously disrupts our nation’s immigration system and calls into question the United States as a leader in protecting the world’s refugees.

Unfortunately, the haste of the order’s implementation has also created confusion among the very agencies assigned to implement and enforce it. The lack of clarity has added to the chaos and caused panic among affected families and communities.

We applaud the numerous lawyers across the country who have flocked to airports where immigrants were detained to ensure that they received due process and equal protection under the law. The legal profession in the United States and the ABA are dedicated to safeguarding the rights of those in need of protection.

KJ

January 31, 2017 in Current Affairs | Permalink | Comments (0)

The Refugee Resettlement Program Is an Unsuitable Target

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President Trump’s executive order pausing the refugee resettlement program for 120 days, indefinitely ending Syrian refugee admissions, and cutting admissions in half in the name of national security focuses upon a singularly unsuitable target, as a new Migration Policy Institute commentary explains.

Refugees already represent the most vetted of any foreign nationals who enter the United States. And none of the more than 3 million refugees who have come through the resettlement program since its creation in 1980 has killed anyone in a terrorist attack in the United States.

“Singling refugees out by halting the refugee resettlement program for four months and cutting resettlement at a time of record global displacement is a classic case of blaming the victim,” write MPI Senior Fellows Kathleen Newland and T. Alexander Aleinikoff. “It will do nothing to make America safer.”

A retreat from longstanding U.S. global leadership in humanitarian issues would leave a hard-to-fill void, deprive the United States of soft- and hard-power advantages, and affect U.S. allies who themselves have shouldered a huge share of the refugee burden, they write.

Here is a compilation of MPI analysis and data that bear upon the recent executive orders that govern the entry of nationals from certain Muslim-majority countries, border enforcement, deportations policy, and more. 

KJ

January 31, 2017 in Current Affairs | Permalink | Comments (0)

Judge Thomas Hardiman for SCOTUS?

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For what it is worth, Hot Air reports that potential Supreme Court nominee Thomas Hardiman, currently on the Third Circuit, might not be so bad on immigration.  He worked at one point for AYUDA and successfully represented a Salvadoran asylum applicant in private practice.  And Ann Coulter compares him to Jeb Bush on the issue.  As VOX reports, other conservative are skittish about Hardiman's conservatives bona fides. Amy Howe on SCOTUSBlog, however, characterizes Hardiman as a "solid conservative."

Stay tuned.  President Trump is schedule to announce his nomination this evening

KJ

 

 

January 31, 2017 in Current Affairs | Permalink | Comments (0)

A Law Professor/Attorney's Day at the IAH Airport: Professor Geoffrey A. Hoffman

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I served on Sunday as a volunteer attorney at the IAH airport in Houston, Texas. As director of the University of Houston Law Center Immigration Clinic I often do outreaches and other events. I can say that this experience, however, was like no other. I am proud to be a lawyer and proud of the lawyers who pitched in. Former students and about 20-25 attorneys showed up to help. We were an impromptu bunch of lawyers who gathered spontaneously with little or no prior discussion to help families get their loved ones released from Customs and Border Protection (CBP) upon landing at the airport from all over the world.  Some were AILA attorneys but most were not immigration practitioners. They specialized in civil rights, criminal defense, federal courts, commercial litigators, tax attorneys and in-house counsels, among others.

Of great concern were those most immediately affected by President Trump's latest executive order: those from one of the targeted 7 countries, Syria, Iraq, Iran, Libya, Sudan, Yemen and Somalia. We heard stories of many who were turned away by the airlines at the country of origin. Many were not allowed even to board the planes due to the misinformation and confusion created by the presidential order.  We answered questions and advised families who were waiting hours that their relatives would be released under a nationwide stay order issued by a federal judge in New York.  We stood ready to file a habeas in the event family members were not released or detained.  The stay order protects those with a valid visa or green card from being removed. Unfortunately, at the least the stay order we had at that moment did not guarantee the release or protect against prolonged detention but did prevent removal. We received reports that some CBP officers were not abiding by the stay order, so we were legitimately concerned at the beginning of the day. At the beginning of the day it was unclear whether green-card holders would be protected.

During the long day, we spoke with green-card holders who had been detained. They were able to get through eventually but often had to wait hours and answer questions, including an on-line "waiver" form. On several occasions we filed G28 representation forms by faxing them to CBP.  We spoke to CBP to try to get status of the detained travelers. Since there is no right of counsel at the border in "secondary inspection" attorneys are not permitted to meet with their clients or to review this new "waiver application" which apparently is now being imposed on all returning residents.  There were reports at other airports that some green-card holders were being asked to sign a form abandoning their lawful permanent residence. The best advice is not to sign any documents without an attorney present.

Representation of anyone at a border or port of entry (POE) is especially problematic due to the lack of contact between attorney and potential client. It is frustrating and the frustration was palpable in the fear, confusion and panic I saw in many of the family members. Protesters began arriving at 4 PM and the crowd swelled to thousands as chants, speeches, and signs protesting the Executive Orders filled the air. Our job was difficult because it was hard to hear our potential clients over the protests. It was a chaotic environment. The Houston police department were accommodating. They let us know that we would be protected from any counter protesters. We did not see any. There was just a sea of protesters, concerned family members.

It was very difficult to advise people: What will happen with the stay? Will it become permanent? What more can we expect from the president? Can my brother, son or daughter travel to the U.S. or should he or she wait abroad despite possession of a valid travel document? These questions are hard to answer. The best response is there will be legal challenges daily, and the courts (or Congress) can reign in these presidential orders.

Amidst the confusion, we were repaid with kindness from strangers. The beauty of helping immigrants and people in need pro bono was evident. We were presented by strangers with pizza, Starbucks gift cards. Someone deposited row upon row of water. I was asked what we needed.

There was a feeling of common purpose, doing good for total strangers, for people in need, tinged by the terrible truth that we are living through an unjust moment of history. Late in the evening, we received word that General Kelly had issued a directive: green-card holders would be deemed "in the national interest." They still however are subject to a case-by-case waiver. Though this was a walking back of the executive order, it deviously preserved the language of the order by making a person's lawful status a category of exception to the overall bar to entry.

I was moved by Sunday's profound experience. It reminded me to never forget the spirit of our great county, its people, its lawyers, and to remember the power of the immigrants, America's source of inspiration, power and compassion.

Geoffrey A. Hoffman

UHLC Immigration Clinic-Director

Houston, Texas

January 31, 2017 in Current Affairs | Permalink | Comments (0)

Your Playlist: Chicano Batman

Okay, it's sponsored by Johnnie Walker. But it's still a great rendition of a classic.

-KitJ

January 31, 2017 in Music | Permalink | Comments (0)

A Sign from the Immigration Protests: Jobs that Americans Will Not Do

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A possible reaction:

 

Trump

January 31, 2017 in Current Affairs | Permalink | Comments (0)

Monday, January 30, 2017

Fred Korematsu Day

Today, California celebrates the Fred Korematsu Day of Civil Liberties and the Constitution.  Google has been honoring the civil rights advocate, who famously sued (and lost) to challenge the internment of Japanese during WW2, with this image:

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It is a great to day to be inspired by his legacy given how activists across the nation are fighting for the rights of refugees as well as immigrants of all stripes from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.

-KitJ

January 30, 2017 in Current Affairs | Permalink | Comments (0)

Acting attorney general orders DOJ not to defend Trump's travel ban

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The latest from The Hill:

Acting Attorney General Sally Yates sent a letter Monday ordering the Justice Department not to defend President Trump’s executive order on immigration and refugees in court, the New York Times reports.

Yates said she is not convinced that the Executive Order is lawful.

“Consequently, for as long as I am the Acting Attorney General, the Department of Justice will not present arguments in defense of the Executive Order, unless and until I become convinced that it is appropriate to do so," she said in the letter. 

"My responsibility is to ensure that the position of the Department of Justice is not only legally defensible, but is informed by our best view of what the law is after consideration of all the facts. In addition, I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right.

"At present, I am not convinced that the defense of the Executive Order is consistent with these responsibilities nor am I convinced that the Executive Order is lawful."

UPDATE (Jan. 31):  CNN reports that President Donald Trump fired acting Attorney General Sally Yates Monday night for "refusing to enforce a legal order designed to protect the citizens of the United States," the White House said.  "(Yates) has betrayed the Department of Justice," the White House statement said.  Dana Boente, US attorney for the Eastern District of Virginia, was sworn in at 9 p.m. ET, per an administration official. A few hours later, Boente issued a statement rescinding Yates' order, instructing DOJ lawyers to "defend the lawful orders of our President."

Hereis the White House statement on the Yates' firing.

 

 

KJ

January 30, 2017 in Current Affairs | Permalink | Comments (0)

Your Playlist: Marvin Gaye

I will be starting class tomorrow with a Marvin Gaye classic - What's Going On.

-KitJ

January 30, 2017 in Music | Permalink | Comments (0)

VICE News Tonight: On Refugee Resettlement

 

A bustling enclave of Syrian immigrants have spiked recently in Toledo, Ohio with the arrival of refugees from Syria's civil war. But President Trump's order severely restricting refugee resettlement could have huge impact on places like Toledo, where refugees have been settling for years.  VICE News Tonight correspondent David Noriega went to Toledo to learn how this order would affect Syrian families already living there.  VICE News Tonight's "Refugee Resettlement" is currently available on HBO.

KJ

January 30, 2017 in Current Affairs | Permalink | Comments (0)

It's Official - LPRs Exempt From Executive Order

Brand new DHS Secretary John Kelly has issued the following statement:

In applying the provisions of the president's executive order, I hereby deem the entry of lawful permanent residents to be in the national interest.

Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.

 -KitJ

January 30, 2017 in Current Affairs | Permalink | Comments (1)

Dissent Memo Coming From Foreign Service Officers

Lawfare has published a draft "dissent memo" that will reportedly be signed by "numerous" career officers of the Foreign Service and other diplomats. The memo is offered in opposition to President Trump's executive order suspending travel by nationals of 7 Muslim-majority nations and halting the admission of refugees.

You gotta love these two bolded sentences from the memo:

  • This Ban Does Not Achieve Its Aims -- And Will Likely Be Counterproductive
  • We Are Better Than This Ban

We are, indeed.

-KitJ

January 30, 2017 in Current Affairs | Permalink | Comments (1)

American University Law's Rapid Response Teach-in on Immigration EOs

Watch the webcast of American University Washington College of Law's Rapid Response Teach-in on the Immigration Executive Orders, held today:

-JKoh

January 30, 2017 | Permalink | Comments (0)

A Twitter Account to Follow Now

In a time when it is becoming increasingly impossible to rely upon official statements from the federal government as an indication for governmental policy, and with developments on the ground taking place so quickly throughout the country, many of us are looking to social media for indications of what is happening and what to expect. One that I've particularly appreciated in the last week is @ALT_USCIS.

-JKoh

January 30, 2017 | Permalink | Comments (0)

Trump Executive Order a Game Changer. History Maker, or Simply Chaos?

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President Trump began the weekend by issuing an executive order that has sparked a global political backlash.  Its hard to know where to start. 

CNN reports that President Donald Trump's travel ban on seven Muslim-majority nations marks an early defining moment for his presidency and an inflection point in America's posture toward Islam and the outside world that could resonate in history.  The move, which also temporarily bars refugees from entering the US, ushers in the first clash between Trump's leadership style and what his critics see as bedrock values that define the nation.  It also represents a shift in US counter-terrorism tactics and a turn in the debate underpinning national security policy since the 9/11 attacks -- how to best keep Americans safe and battle extremism at home and abroad without alienating Muslims in a way that could foster more radicalism.

Lawsuits have been brought and injunctive relief ordered barring full implementation of the Executive Order.  Protests of the implementation of the Executive Order occurred yesterday at airports across the United States.

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Protesters rally against President Trump's refugee ban at Miami International Airport on Sunday, Jan. 29, 2017.   Courtesy of the Washington Post

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Protesters at LAX. Photo courtesy of the Los Angeles Times

 

 
UC Davis had faculty, students, and alums join in the effort to help immigrants at the airports.  As this story describes, Sara Ehsani-Nia, a second-year law student at UC Davis, went to San Francisco International Airport yesterday to work as a translator for the Asian Law Caucus. She helped the agency gain the release of an elderly Iranian couple that flew into Northern California to visit relatives.

Read more here: http://www.sacbee.com/latest-news/article129516494.html#storylink=cpy

In a statement released yesterday, President Trump denied that his Executive Order barring citizens from seven Muslim-majority countries for 90 days was a "Muslim Ban" and cited a policy of President Obama as a precedent.  The full statement reads as follows:

"America is a proud nation of immigrants and we will continue to show compassion to those fleeing oppression, but we will have to do so while protecting our own citizens and border. America has always been the land of the free and the home of the brave. We will keep it free and keep it safe, as the media knows, but refuses to say. My policy is similar to what President Obama did in 2011 when he banned visas for refugees from Iraq for six months. The seven countries named in the Executive Order are the same countries previously identified by the Obama administration as sources of terror. To be clear, this is not a Muslim ban, as the media is falsely reporting. This is not about religion - this is about terror and keeping our country safe. There are over 40 different countries worldwide that are majority Muslim that are not affected by this order. We will again be issuing visas to all countries once we are sure we have reviewed and implemented the most secure policies over the next 90 days. I have tremendous feeling for the people involved in this horrific humanitarian crisis in Syria. My first priority will always be to protect and serve our country, but as President I will find ways to help all those who are suffering." 

As the Washington Post reports, the statement is not quelling the controversy.

KJ

January 30, 2017 in Current Affairs | Permalink | Comments (0)

Joint IOM - UNHCR Statement on President Trump's Refugee Order

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Joint International Organization for Migration - UNHCR Statement on President Trump's Refugee Order

 

Switzerland - The needs of refugees and migrants worldwide have never been greater and the US resettlement program is one of the most important in the world.

The longstanding policy has offered a double win: first by rescuing some of the most vulnerable people in the world and second by enabling them to enrich their new societies. The contribution of refugees and migrants to their new homes worldwide has been overwhelmingly positive.

Resettlement places provided by every country are vital; The International Organization for Migration (IOM), the UN Migration Agency and and UNHCR, the UN Refugee Agency, hope that the US will continue its strong leadership role and long tradition of protecting those who are fleeing conflict and persecution.

IOM and UNHCR remain committed to working with the US Administration towards the goal we share to ensure safe and secure resettlement and immigration programmes. 

We strongly believe that refugees should receive equal treatment for protection and assistance, and opportunities for resettlement, regardless of their religion, nationality or race.

We will continue to engage actively and constructively with the U.S. Government, as we have done for decades, to protect those who need it most, and to offer our support on asylum and migration matters.

KJ

January 30, 2017 in Current Affairs | Permalink | Comments (0)

Sunday, January 29, 2017

Duckworth and Durbin Call for Investigation of DHS on Trump's Executive Order

FOR IMMEDIATE RELEASE

January 29, 2017           
Contact: Sean Savett (Duckworth), (202) 256-2935

Monica Garcia (Durbin), (202) 224-7028

Duckworth & Durbin Request Immediate Investigation into Department of Homeland Security’s Implementation of Trump’s Executive Order

[CHICAGO, IL] – U.S. Senators Tammy Duckworth (D-IL) and Dick Durbin (D-IL) today called on the U.S. Department of Homeland Security’s (DHS) Office of Inspector General to immediately initiate an independent investigation into the agency’s potentially illegal implementation of President Trump’s executive order. This rushed and poorly drafted Trump Administration initiative endangers our national security by limiting travel from certain Muslim-majority countries, and it may violate long-standing immigration law in its treatment of legal permanent residents by undermining vital rights like due process and equal protection that are guaranteed by the United States Constitution. On the day after the executive order was issued, approximately 18 people were detained at O’Hare International Airport, including several legal permanent residents.

The chaotic execution of this [Executive Order] … raises serious concerns in regard to whether taxpayer dollars were efficiently and effectively spent, rather than wasted on unwarranted and unjust detentions of lawful permanent residents (LPRs) and others who posed no security threat, and who had already been authorized by the United States Government to enter our country,” Duckworth and Durbin wrote. “We are deeply concerned by [Customs and Border Protection’s] failure to respond to time-sensitive Congressional oversight inquiries and allegations that the agency refused to permit attorneys to meet with detained LPRs at O’Hare and other airports across the country.”

The Senators’ letter requests an investigation into:

  • How DHS & the U.S. Customs and Border Protection (CBP) prepared to implement the executive order and what guidance they provided to the White House during development of it;
  • What guidance and training was provided to CBP employees to make sure the executive order was implemented in a consistent and fair manner that protected the constitutional rights of all detained individuals;
  • How DHS & CBP determined which information to share with the public and whether they kept a list of all detained individuals; 
  • Whether CBP officers at airports were informed of the court orders and given instructions on how to comply with them;
  • Whether CBP officers violated any court order. If so, who directed such actions; what will be done to hold violators accountable; and what will CBP do to prevent violations of the rule of law from ever occurring again;
  • What complaints about violations of court orders have been received and how they were resolved.

“We are particularly alarmed by allegations that CBP Officers and potentially other Department personnel, failed to comply with a temporary restraining order … that directed CBP to provide detained LPRs at Dulles International Airport with access to attorneys. Such allegations should not be taken lightly and require swift investigative action by your office.Duckworth and Durbin added.The United States Constitution means little if law enforcement agents disregard it, or if Americans are unwilling to defend its principles and respect foundational constitutional rights, from due process to equal protection under the law. The American people are relying on your independent investigators to serve as a check against a powerful law enforcement agency that may be violating the civil rights of LPRs and operating in violation of the law.”

The full text of the letter is as follows:

VIA ELECTRONIC DELIVERY

The Honorable John Roth

Inspector General

Office of the Inspector General

U.S. Department of Homeland Security

245 Murray Lane SW

Washington, DC 20528-0305

Dear Inspector General Roth:

We are writing to request that the U.S. Department of Homeland Security (DHS) Office of Inspector General (OIG) immediately initiate a comprehensive investigation into DHS implementation of “Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals,” an Executive Order (EO) signed on Friday, January 27, 2017. 

The chaotic execution of this EO by DHS and U.S. Customs and Border Protection (CBP) personnel raises serious concerns in regard to whether taxpayer dollars were efficiently and effectively spent, rather than wasted on unwarranted and unjust detentions of lawful permanent residents (LPRs) and others who posed no security threat, and who had already been authorized by the United States Government to enter our country.

Reports indicate CBP Officers detained LPRs at O’Hare for a prolonged period of time with no access to legal counsel. We are deeply concerned by CBP’s failure to respond to time-sensitive Congressional oversight inquiries and allegations that the agency refused to permit attorneys to meet with detained LPRs at O’Hare and other airports across the country.

CBP’s refusal to allow detained legal permanent residents to meet with legal counsel is especially troubling in light of the determination by the United States District Court for the Eastern District of New York that it is likely the removal of the detained individuals would have violated their rights to Due Process and Equal Protection guaranteed by the United States Constitution. We are particularly alarmed by allegations that CBP Officers and potentially other Department personnel, failed to comply with a temporary restraining order issued by Judge Leonie M. Brinkema of the United States District Court, Eastern District of Virginia, that directed CBP to provide detained LPRs at Dulles International Airport with access to attorneys. Such allegations should not be taken lightly and require swift investigative action by your office. We must ensure that CBP is held accountable for following the law and respecting our Nation’s system of checks and balances.

Accordingly, we request that DHS OIG investigate DHS and CBP implementation of the Executive Order signed on Friday, January 27, 2017. Specifically, we request that DHS OIG investigate:

  • How DHS and CBP prepared to implement the EO and what guidance DHS and CBP personnel provided to the White House during development of the EO;
  • What guidance and training were provided to CBP Management and Officers to make sure the EO was implemented in a consistent and fair manner that protected the constitutional rights of all detained individuals;
  • How DHS and CBP determined what information to share with the public;
  • Whether DHS and CBP kept a list of all detained individuals and if not, why not; 
  • Whether, when, and how CBP officers at airports nationwide were informed of court orders affecting implementation of the EO, including what specific information and instruction CBP officers were provided regarding compliance with court orders;
  • What steps DHS and CBP took to ensure that all DHS and CBP personnel complied with all relevant court orders;
  • What complaints CBP received regarding its compliance with the relevant court orders and how these complaints were resolved;
  • Whether CPB officers took action that was contrary to any court orders and if so, what actions were taken, where were they taken and who directed such actions;
  • What justifications CBP officers have proffered for any actions contrary to any court orders;
  • What actions CBP has taken, or plans to take, to hold CBP Officers accountable for any violations of a Federal Court order; and
  • Any remedial actions CBP has instituted to prevent any violations from occurring again.

The United States Constitution means little if law enforcement agents disregard it, or if Americans are unwilling to defend its principles and respect foundational constitutional rights, from due process to equal protection under the law. The American people are relying on your independent investigators to serve as a check against a powerful law enforcement agency that may be violating the civil rights of LPRs and operating in violation of the law. 

If you have any questions about this request, please contact Benjamin Rhodeside on Senator Duckworth’s staff at 202-224-2070 or by email at: Benjamin_Rhodeside@duckworth.senate.gov. Thank you in advance for your prompt consideration of my request. 

Sincerely,

Tammy Duckworth & Dick Durbin

United States Senators

bh

January 29, 2017 | Permalink | Comments (0)

Immigration Article of the Day: Race, Civil Rights, and Immigration Law After September 11, 2001: The Targeting of Arabs and Muslims by Susan Musarrat Akram and Kevin R. Johnson

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Race, Civil Rights, and Immigration Law After September 11, 2001: The Targeting of Arabs and Muslims by Susan Musarrat Akram and Kevin R. Johnson

 

Annual Survey of American Law, Vol. 58, 2002. 

Abstract:     This article is part of a symposium on "Migration Regulation Goes Local: The Role of States in U.S. Immigration Policy." Although only time will tell, September 11, 2001 promises to be a watershed in the history of the United States. Not long after the tragedy, supporters and critics alike saw the federal government as "pushing the envelope" in restricting civil liberties in the name of national security. This article analyzes the nation's response to the horrific loss of life of September 11 and shows how the centralization of immigration power in the hands of the federal government, may exacerbate the civil rights impacts of the enforcement of the immigration laws. The federal government has acted more swiftly and uniformly than the states ever could, with severe consequences for the Arab and Muslim community in the United States. That the reaction was federal in nature - and thus national in scope as well as uniform in design and impact, and with precious few legal constraints - worsened the civil rights impacts.

The civil rights deprivations resulting from federal action reveals that national regulation of immigration is a double-edged sword. Although federal law pre-empts state laws designed to regulate immigration or discriminate against aliens, it can also, with few legal constraints, strike out at immigrants across the nation if it sees fit. That in turn suggests that the role of states, as well as the federal government, in the regulation of immigration and immigrants, especially in times of national crisis, deserves most serious attention.

The federal government's response to September 11 also demonstrates the close relationship between immigration law and civil rights in the United States. Noncitizens historically have been the most vulnerable to civil rights deprivations, in large part because the law permits, perhaps even encourages, extreme governmental conduct with minimal protections for the rights of noncitizens. Unfortunately, the current backlash against Arabs and Muslims in the United States fits comfortably into a long nativist history.

In sum, a complex matrix of "otherness" based on race, national origin, religion, and political ideology contributes to the current attacks on the civil rights of Arabs and Muslims in the United States. As has occurred in the past, the ripple effects of national security measures in the end may adversely affect the legal rights of all noncitizens, not just Arabs and Muslims. Indeed, as we contend in this article, the civil rights deprivations resulting from the war on terrorism may have long term adverse impacts on the civil rights of citizens as well as noncitizens in the United States.

To help us better understand the latest "war on terrorism," Part I of the Article analyzes the general demonization of Arabs and Muslims generally in the United States and how the law has been influenced by, and reinforced, the negative stereotypes. This section reviews the federal government's actions directed at Arabs and Muslims in the name of combating terrorism well before September 11. As Professor Edward Said has observed, terrorism in these times "has displaced Communism as public enemy number one." That has translated into a near exclusive focus on "foreign terrorists," particularly Arabs and Muslims. Part II studies the federal government's zealous investigatory methods after September 11 directed at Muslim and Arab noncitizens, with disregard for their civil rights, and the possible long term impacts of that response.

I am highlighting this article as it seems quite relevant to discussion and analysis of President Trump's executive order on "Protecting the Nation From Foreign Terrorist Entry Into The United States."

KJ

January 29, 2017 in Current Affairs | Permalink | Comments (0)

David Martin on President Trump's Executive Order on "Enhancing Public Safety in the Interests of the United States"

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Professor David Martin on VOX offers his annotated comments to President Trump's Executive Order on "Enhancing Public Safety in the Interests of the United States."  The annotations are insightful.  I especially liked this response to the Executive Order's statement that "Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic."

David's responses: 

January 29, 2017 in Current Affairs | Permalink | Comments (1)