Saturday, July 29, 2017

From the Bookshelves: Anchor Babies and the Challenge of Birthright Citizenship by Leo R, Chavez

Chavez book
 

Birthright citizenship has a deep and contentious history in the United States, one often hard to square in a country that prides itself on being "a nation of immigrants." Even as the question of citizenship for children of immigrants was seemingly settled by the Fourteenth Amendment, vitriolic debate has continued for well over a century, especially in relation to U.S. race relations. Most recently, a provocative and decidedly more offensive term than birthright citizenship has emerged: "anchor babies."

With this book, Leo R. Chavez explores the question of birthright citizenship, and of citizenship in the United States writ broadly, as he counters the often hyperbolic claims surrounding these so-called anchor babies. Chavez considers how the term is used as a political dog whistle, how changes in the legal definition of citizenship have affected the children of immigrants over time, and, ultimately, how U.S.-born citizens still experience trauma if they live in families with undocumented immigrants. By examining this pejorative term in its political, historical, and social contexts, Chavez calls upon us to exorcise it from public discourse and work toward building a more inclusive nation.

About the author

Leo R. Chavez is Professor of Anthropology at the University of California, Irvine. He is the author of The Latino Threat: Constructing Immigrants, Citizens, and the Nation (Stanford, 2008, 2013), among other books.

KJ

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

Friday, July 28, 2017

Job Opening: DHS Secretary

President Trump just named DHS Secretary John Kelly to be his new chief of staff, replacing embattled Reince Preibus. That leaves an opening in the top spot at DHS.

This shakeup comes just hours after Trump gave a speech in which he said: "Together we're going to restore safety to our streets and peace to our communities and we're going to destroy the vile, criminal cartel MS-13 and many other gangs." Work that presumably DHS will be involved in.

-KitJ

July 28, 2017 in Current Affairs | Permalink | Comments (0)

John Kelly Out as DHS Secretary, Now Trump Chief of Staff

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Breaking news!  President Donald Trump, in a surprise announcement posted to Twitter today, said he had replaced his chief of staff and named John F. Kelly, the Secretary of the Department of Homeland Security, to the post.

Kelly, a Boston native, replaces Reince Priebus.

Here are the contents to the two tweets by President Trump making the announcement:

"I am pleased to inform you that I have just named General/Secretary John F Kelly as White House Chief of Staff. He is a Great American...."

"...and a Great Leader. John has also done a spectacular job at Homeland Security. He has been a true star of my Administration"

No word on who the new DHS Secretary might be.  Kris Kobach is my wild guess.

KJ

July 28, 2017 in Current Affairs | Permalink | Comments (0)

At the Movies: Indivisible, A Film Chronicling Three Undocumented Immigrants’ Fight for Citizenship and the Chance to Reunite with Family

 

 UnidosUS and Fuse have teamed up for the world premiere of award-winning documentary Indivisible on Saturday July 29 at 10 p.m. ET. Directed by immigration reform advocate Hilary Linder, Indivisible chronicles the lives of three undocumented immigrants as they fight for a pathway to citizenship and a chance to be reunited with their loved ones who have been deported.

As part of the partnership, UnidosUS will serve as a resource for Fuse’s multiplatform audience by providing additional background on the issues highlighted in the documentary. Information provided by UnidosUS will appear during the broadcast and the organization will support tune-in through a variety of strategic social media account activations.

Indivisible tackles the crucial issues of deportation and citizenship, as well as the emotional struggle of families affected by the challenges facing undocumented immigrants living in America. Renata, Evelyn, and Antonio were young children when their parents brought them to the U.S. in search of a better life. They were teenagers when their mothers, fathers, and siblings were deported.  

The documentary is produced and directed by filmmaker Hilary Linder from her production company, Kudzu Films. The fourth release from the ‘We The Dreamers’ series of documentaries, Indivisible was edited by Laura Franco-Velasco. Exclusive multiplatform content, including exclusive interviews and extended scenes, will be available at Fuse.tv.

KJ

July 28, 2017 in Current Affairs, Film & Television | Permalink | Comments (0)

From the Bookshelves: Stolen Girls: Survivors of Boko Haram Tell Their Story by Wolfgang Bauer

Stolen girls

Stolen Girls:  Survivors of Boko Haram Tell Their Story by Wolfgang Bauer

Former Boko Haram captives tell their terrifying and heartbreaking stories to a leading European journalist

“Over a six-year insurgency, Boko Haram has forced two million Nigerians from their homes, with upwards of one million refugees in Maiduguri, according to Doctors Without Borders, and hundreds more refugees are coming each week, leaving rural outposts vulnerable to attacks.” —The New Yorker

One night in April 2014, members of the terrorist organization Boko Haram raided the small town of Chibok in northeast Nigeria and abducted 276 young girls from the local boarding school. The event caused massive international outrage. Using the hashtag “Bring Back Our Girls,” politicians, activists, and celebrities from all around the world—among them First Lady Michelle Obama and Nobel Peace Prize winner Malala Yousafzai—protested.

Some of the girls were able to escape and award-winning journalist Wolfgang Bauer spent several weeks with them as they recounted their ordeal. In Stolen Girls, he gives voice to these girls, allowing them to speak for themselves—about their lives before the abduction, the horrors during their captivity, and their dreams of a better future. Bauer’s reportage is complemented by over a dozen stunning portraits by award-winning photographer Andy Spyra.

Bauer also examines the historical and political background of the Islamist terror in the heart of Africa, showing how Boko Haram works and describing the damage it has done to the fragile balance of ethnicities and cultures in one of the world’s most diverse regions. His book tells a story of violence, fear, and uncertainty; it is also a story of hope, strength, and courage.

KJ

July 28, 2017 in Current Affairs | Permalink | Comments (0)

Thursday, July 27, 2017

At the Movies: Sicario

Sicario

Okay. I'll admit that headline is a little misleading. Sicario isn't so much "at the movies" as "included with your Prime membership." Still, it's a movie of definite interest to immprofs.

Here's how IMDB summarizes the film: "An idealistic FBI agent is enlisted by a government task force to aid in the escalating war against drugs at the border area between the U.S. and Mexico." That's fair. It's a border movie with a strong law enforcement bent.

The film offers beautiful cinematography of the Southern border - unique shots that I haven't seen in other films. It also includes scenes of ports of entry that are unusually authentic. There's even a small nod to mass deportations - with a scene involving busloads of deportees.

The movie is rated R and earns that rating in violence. It's a fast-paced and thoroughly engaging watch.

-KitJ

July 27, 2017 in Film & Television | Permalink | Comments (0)

Oxnard, California, Declares Itself "Safe City"

From CAUSE (Central Coast Alliance United for A Sustainable Economy)

Dear CAUSE friends,

Tuesday night the Oxnard City Council voted to declare itself a “Safe City” for undocumented residents, who make up 1 in 6 people in Oxnard.  The Oxnard Police Department does not and will not enforce federal immigration law or work with federal agents to deport our community.

This officially makes Oxnard the first Safe City in Ventura County.  Thank you to the leadership of Councilmembers Carmen Ramirez, Oscar Madrigal, and Bryan MacDonald who supported the resolution along with Police Chief Scott Whitney and the Oxnard Community Relations Commission.  Most of all, thanks to the hundreds of community members who have showed up to meetings in support of this issue.

But it won’t be a complete victory until California passes SB54 and limits collaboration between the Ventura County Sheriff’s office and federal deportation agents.

bh

 

July 27, 2017 | Permalink | Comments (0)

From the Bookshelves: Steven W. Bender, How the West Was Juan: Reimagining the U.S./Mexico Border

 Steven W. BenderBenderfrontcover
Steven W. Bender, How the West Was Juan:  Reimagining the U.S./Mexico Border 

Imagine the United States losing the 1846 war, ending up a federation of 44 states [bordering] Alto México (with an acute accent over the "e"), one of the world's major economies, Spanglish its lingua franca. Its borders? As abstruse as the ones defeating us today. If you think this is a Leibnitzian universe (or perhaps one of Kellyanne Conway's alternative facts), read Steven W. Bender's prescient How the West Was Juan. It might show us the way out of this perverse prison we call "reality."

Ilan Stavans, author of Laughing Matters: Conversations on Humor and Quixote: The Novel and the World

A Pandora's box is opened in the hands of a master of law and cultural studies as well as history. Playful, yet historically and legally researched, How the West Was Juan demarcates a new territory for the physical, psychological, moral, and spiritual borders of our country, as well as deconstructing the inaccuracy of our traditional history books. Bender keeps us entertained with his kneading of geographical facts with history and current events, allowing us to envision different, possible borderlands, and throwing a scholarly wrench into the notion of border and belonging, as well as appropriated spaces.

Gabriella Gutiérrez y Muhs, author of Word Images: New Perspectives on Canícula and Other Works by Norma Elia Cantú

[A] tightly packed, state by state review of the history, geography, demography, and economy of a confiscated region, Steven Bender's imagined unwinding of the U.S. seizure of 54% of Mexico's territory is excellent and engaging.

Raymond Caballero, author of Orozco, The Life and Death of a Mexican Revolutionary; Mayor, El Paso, TX (2001-03)

Steven W. Bender, a law professor and associate dean for planning and strategic initiatives at Seattle University School of Law, is the author of several books encompassing legal, cultural, political, and historical issues.

KJ

July 27, 2017 in Books | Permalink | Comments (0)

Immigration Organizer Abril Gallardo Talks Growing Up Undocumented, Racist Policing and the Confederate Flag

 

In a segment of a Colorlines five-part video series featuring Maricopa County, Arizona, immigration activists, Abril Gallardo of Living United for Change Arizona reflects on coming to the United States at age 12, fighting hate speech and facing down Confederate flag-bearing folks who crash her actions.

KJ

 

July 27, 2017 in Current Affairs | Permalink | Comments (0)

New study: Spikes in violence are major driver of child immigration from Central America

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While the dominant rhetoric around migration has focused on economic drivers, a new study today from Michael Clemens, senior fellow at the Center for Global Development, quantifies for the first time just how much violence drives child migration – and finds that spikes in violence are, in fact, the main driver of child migration from Central America. The report, “Violence, Development, and Migration Waves: Evidence from Central American child migrant apprehensions” examines the relationships between violence, economics, and unaccompanied child (UAC) migration out of El Salvador, Guatemala, and Honduras—known as the Northern Triangle. Parts of this region suffer from some of the highest homicide rates on earth. Using previously unreleased data provided by the Department of Homeland Security, this new research shows that spikes in violence are the main driving factor behind unaccompanied child migration from municipalities in the Northern Triangle. Persistently poor employment conditions are also found to be a factor.

  • One additional homicide per year caused 3.7 additional child apprehensions in the U.S. Violence spikes are the main driving factor behind child migration, and one additional homicide per year in the region sustained over the whole period 2011-2016 – that is, a cumulative total of six additional homicides caused a cumulative total of 3.7 additional unaccompanied child apprehensions in the United States.
  • Eight percent of all 17 year-olds in the region have been apprehended at the U.S. border. The number of apprehensions of 17 year-old unaccompanied child migrants from the Northern Triangle from 2011–2016 is a whopping 8 percent of the total number of 17 year-olds who were initially living in those countries. This percentage does not include those migrants who were not apprehended, nor those who never made it to U.S. border.

“Under U.S. and international law there are fundamentally three types of migration that are recognized – family migrants, economic migrants, and refugees. That system was set up two generations ago. But today, the drivers of migration are much more complex than that,” said Michael Clemens, senior fellow at the Center for Global Development. “Any one migrant could be simultaneously seeking family reunification, the opportunity to contribute economically, and seeking safety from violence. This is most obvious for many migrants from Central America, Sudan, or Afghanistan, but it is increasingly true around the world.”

Currently, international refugee and asylum law protects individuals targeted for violence due to beliefs, but does not protect those fleeing areas where there is severe violence. “Current law is built as if every migrant who isn’t sponsored by a close family member is either an asylum-seeker or an ‘economic migrant.’ That system is outdated, and it’s on a collision course with the reality of today’s migration flows,” said Clemens.

KJ

July 27, 2017 in Current Affairs | Permalink | Comments (0)

Texas police arrest DACA recipients in Austin protest

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Courtesy of Cosecha

It is summer and things are heating up.  Here is some immigration news from Texas.

At least 15 people, including four DACA recipients, have been arrested in Texas during a protest demanding permanent legal status for.  The demonstration was organized by Cosecha,  a nonviolent immigrants' rights group, and took place yesterday in Austin, Texas near the state capito. 

A group of about 50 people chanted "undocumented and unafraid" and "si se puede" ("yes you can") as some blocked a street in the state capital, leading to the arrest of 15 people including four recipients of relief under the Deferred Action for Childhood Arrivals (DACA) program.

More than 787,000 young people have been approved for DACA relief.

KJ

July 27, 2017 in Current Affairs | Permalink | Comments (0)

Wednesday, July 26, 2017

Decline in Asian American Law School Enrollment

From Huffington Post:

People often think of Asian-Americans as doctors or lawyers, but the group hasn’t been flocking to law school in recent years, new research shows. 

The first comprehensive study on Asian-Americans in law, released earlier this month, revealed that the group’s first-year enrollment rate in law school has declined more than any other race. In fact, the number of Asian-Americans who entered law school in 2016 dipped down to the lowest it’s been in more than two decades. 

“It does mean that the growth of Asian-Americans going into the profession is going to be slower ... so this is worrisome.” Justice Goodwin Liu, who co-authored the study, told HuffPost.  

Liu said that there could be real consequences to the decline in Asian-American professionals in law as "the decisions that are made in these contexts benefit from the experiences of people of all the different backgrounds that make up this country.”

Read more...

bh

July 26, 2017 | Permalink | Comments (1)

AALS Immigration Law Section Call for Works-in-Progress

Aals

The Immigration Law Section of the Association of American Law Schools issues this Call for Papers for a Works-in-Progress (WIP) session at the AALS annual meeting (San Diego) in January 2018.   The WIP Session will take place on January 6, 2018 (Saturday) between 3:30 PM and 5:15 PM right after the section’s main program, “Immigration Adjudication in an Era of Mass Deportation.”

Papers can be on any topic that relates to immigration and citizenship law. Drafts must be submitted by August 31, 2017, 5:00 PM Eastern Standard Time (EST) to immprof2018@gmail.com. The WIP Session provides speakers the opportunity to present their work and receive feedback from commentators. Papers that are slotted for publication by January 2018 are not eligible. Pre-tenured and non-tenure track professors are strongly encouraged to submit.

KJ

July 26, 2017 in Current Affairs | Permalink | Comments (1)

Reminder - Call for Papers for AALS Conference, Immigration Adjudication in an Era of Mass Deportation

 

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Call for Papers for Presentation 

AALS Section on Immigration Law (2018):  Immigration Adjudication in an Era of Mass Deportation
January 6, Saturday, from 1:30 - 3:15 PM.

The AALS Section on Immigration Law is pleased to announce a call for papers for presentation at the 2018 annual conference in San Diego, CA. The program will be titled, “Immigration Adjudication in an Era of Mass Deportation.” Large scale deportation has been a feature of the federal government’s immigration enforcement policy for years.  But the immigration policies under the new administration suggest even more expansive reliance on the tools associated with mass deportation, such as increasing the number of deportations, the scale of detention and the categories of persons treated as removal priorities.The Section seeks papers that examine the implications of the current Administration’s mass deportation strategies for existing paradigms in the literature on immigration adjudication.

The questions that may be addressed in the papers include, but are not limited to, the following: the rise–and likely expansion–of summary removals and other mechanisms that enable the federal government to effectuate removal in a streamlined manner and without the participation of the immigration courts; the impact of the backlog in the immigration courts on the federal government’s ability to achieve mass deportation; the continued relevance of the immigration courts and Board of Immigration Appeals as the central actors in immigration adjudication; and the influence of policies related to mass deportation on broader themes within immigration law such as judicial review, the rule of law, the constitutional rights of noncitizens, plenary power or the entry fiction doctrine.Up to two papers may be selected from the Call for Papers. The author(s) of the selected paper or papers will be invited to present the paper(s) during the Immigration Section’s program at AALS, which will be on Saturday, January 6, from 1:30 PM - 3:15 PM.Please send your submission to immprof2018@gmail.com by August 1, 2017, 5:00 PM EST.

 -JKoh

July 26, 2017 | Permalink | Comments (0)

One Migrant Suffocated to Death in Texas Truck Was a DACA Recipient, Arrived to US as Toddler

The Washington Post reports with several updates on the migrants deaths in a San Antonio truck, including the fact that one of the deceased individuals was a 19-year old named Frank Fuentes.  Fuentes had originally arrived in the U.S. as a toddler, grew up in Northern Virginia where he graduated from  high school, and received DACA.  His DACA was terminated and he was deported in March after receiving an assault-related conviction.

A former classmate shared that when she "last spoke to Fuentes on Snapchat a month ago, ... he confided how much he was struggling in an unfamiliar country. 'He’s been here forever,' she said. 'He doesn’t know what Guatemala was. His home is here, his friends are here, his family is here.'"

-JKoh

July 26, 2017 | Permalink | Comments (0)

Federal Judge Delays Removal of Iraqi Christians

 

Protest against deportation of Chaldean and Iraqi nationals outside federal court during hearing of the case, Wednesday, June 21, 2017 in downtown Detroit. Junfu Han, Detroit Free Press

On Monday, the Trump administration suffered another immigration setback.

A federal judge ordered the Trump administration to suspend the deportation of about 1,400 Iraqis, saying the government is moving too quickly to return them to a country where they face a “grisly fate” including persecution and torture.

U.S. District Judge Mark Goldsmith ruled the Iraqis must be given a chance to challenge their deportations so that those facing “grave harm and possible death are not cast out of this country before having their day in court.”  Here is the order as well as the ACLU's explanation.  The ACLU represented the plaintiffs.

The Iraqis targeted for removal, including a mix of Muslims and Christians from the Detroit area and elsewhere in the U.S., were previously deemed eligible for removal after they were convicted of crimes or had overstayed their visas.

According to the Los Angeles Times:

"Many of the Iraqis arrived in the U.S. as children as far back as the 1980s and have few ties to their native country. The majority are members of religious or ethnic minorities such as Chaldean Christians or Kurds, who have been subjected to torture and other forms of repression in Iraq.

They face deportation because they had overstayed visas or committed crimes, typically misdemeanors such as driving under the influence of alcohol."

KJ

 

July 26, 2017 in Current Affairs | Permalink | Comments (0)

Tuesday, July 25, 2017

AG Sessions Takes (Minor?) Steps to Defund "Sanctuary Cities"

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"Beleagured" Attorney General Jeff Sessions

The latest from the U.S. Department of Justice:

Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Grant Programs

The Department of Justice today posted a solicitation for the Edward Byrne Memorial Justice Assistance Grant Programs (“Byrne JAG”). Recipients for FY 2017 will be notified of new conditions of their grants that will increase information sharing between federal, state, and local law enforcement, ensuring that federal immigration authorities have the information they need to enforce immigration laws and keep our communities safe.

 

"So-called 'sanctuary' policies make all of us less safe because they intentionally undermine our laws and protect illegal aliens who have committed crimes,” Attorney General Jeff Sessions said. “These policies also encourage illegal immigration and even human trafficking by perpetuating the lie that in certain cities, illegal aliens can live outside the law. This can have tragic consequences, like the 10 deaths we saw in San Antonio this weekend. As part of accomplishing the Department of Justice's top priority of reducing violent crime, we must encourage these 'sanctuary' jurisdictions to change their policies and partner with federal law enforcement to remove criminals. From now on, the Department will only provide Byrne JAG grants to cities and states that comply with federal law, allow federal immigration access to detention facilities, and provide 48 hours notice before they release an illegal alien wanted by federal authorities. This is consistent with long-established cooperative principles among law enforcement agencies. This is what the American people should be able to expect from their cities and states, and these long overdue requirements will help us take down MS-13 and other violent transnational gangs, and make our country safer."

***

Newspapers are reporting the announcement as a "crackdown" on sanctuary cities or "toughen[ing]" the policy.  I am not sure how significant the change will be.  It is a major federal law enforcement funding program.  Still, it is only one such program.

 

KJ

July 25, 2017 in Current Affairs | Permalink | Comments (0)

Refugees Confront the Past Through Art

Temporary museum
 
 

The New York Times reported about the Temporary Museum, a pop-up exhibition inside the Bijlmerbajes in Amsterdam, a former prison that is now a center for asylum seekers, where those who fled are presenting works that help the public understand their migrant experience.  The Temporary Museum, which opened on June 28 and will remain inside the building until Jan. 1, aims to present new perspectives on migrants, an effort to break the isolation that newcomers often feel.

The website for the Temporary Museum describes it as follows:

"Visit the ‘Tijdelijk Museum’ (Temporary Museum) in the former prison complex of the ‘Bijlmerbajes’! After a successful first edition in the former Shell Tower (the present A’DAM Toren), the present edition explores connections with the new residents of the – equally temporary – asylum seekers’ centre set up here. The participating artists and designers were invited to make new work for the occasion. Examples include Leonard van Munster’s tree fountain in the courtyard, Teun Castelein’s Bijlmer Hammam in an old cell block, Mayra Sérgio’s tea landscape and an installation in the control room featuring videos by Gali Blay. The Museum will continue to expand its collection throughout the exhibition period."

KJ

July 25, 2017 in Current Affairs | Permalink | Comments (0)

The Implicit and Explicit Rulings in the Trump v. IRAP Stay Decision by Geoffrey A. Hoffman

GeoffreyHoffman

The Implicit and Explicit Rulings in the Trump v. IRAP Stay Decision by Geoffrey A. Hoffman

On June 26, 2017, the Supreme Court granted certiorari and partially granted the Trump administration’s request for a stay of the injunction on the travel ban. The explicit ruling narrowed the scope of the injunction. The implicit ruling is more troubling. The explicit ruling established that a bona fide relationship to a U.S. person or entity would be enough to support enjoining the travel ban as to those persons. If one were able to show such a relationship then the government’s travel ban could not be enforced. However, as noted in the partial concurrence and dissent, by Justices Thomas, Alito and Gorsuch, implicitly the majority appeared to have found that the requirements for equitable relief had been met in favor of the government. The requirements for injunctive relief are: (1) a strong likelihood of success on the merits; (2) that the movant likely will suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities weighs in the movant’s favor; and (4) that a stay is in the public interest.

Although the majority never explicitly applied these equitable factors, they must, so the reasoning goes, have found persuasive the government’s argument that it had shown a high likelihood of success on the merits (at least as to those with no connection to the United States). The explicit ruling on nexus relating to the scope of the injunction appears to be a compromise move, but to get there the dissent’s point is that there had to have been an undisclosed and hidden antecedent premise:  that the government would likely succeed on the merits and would suffer irreparable harm absent the stay based on a national security rationale. This implicit reading of the ruling should be rejected for several reasons.

First, if the dissent is correct about the implicit ruling, then the Supreme Court appears to have endorsed the idea that the controlling precedent and starting place for the instant case is Kleindienst v. Mandel (1972).  This conclusion is bolstered by the similarity between the language in the 1972 decision and in the June 26 decision. In Kleindienst, the Supreme Court upheld the government’s denial of a waiver of inadmissibility for a scholar who had been denied admission to the United States so long as the government asserted “legitimate and bona fide” reasons supporting its denial. In the June 26 stay decision we also see the “bona fide” language resurrected, but this time in the context of a legitimate connection to the United States. The standard articulated by the high court in Kleindienst was the lowest and most deferential to possible for the government:  i.e., a formulation of the so-called “rational basis” test. Throughout our jurisprudence, however, whenever the rational basis test has been utilized the impugned governmental action almost always is permitted with limited exceptions.

Kleindienst v. Mandel should not serve as the touchstone for the Supreme Court’s forthcoming merits decision if that is what the majority is signaling according to the dissent’s reading of their stay opinion.  If indeed this is the correct take-away from the June 26th decision, the reliance on Kleindienst is misguided.  Although it was an immigration case and raised a First Amendment claim, the case is distinguishable. The fundamental issues found in both Trump v. IRAP and Trump v. Hawaii as compared to Kleindienst are distinguishable.  Despite the facial similarities between Kleindienst  and the current cases, it would be a fundamental mistake to blindly import the level of scrutiny found in Kleindienst.

While Kleindienst was a First Amendment case it was based on freedom of speech and association, not on the First Amendment’s Establishment Clause. As noted quite extensively by the Fourth Circuit, the Establishment Clause has its own jurisprudential history and structure of analysis, wholly absent from Kleindienst v. Mandel.  Importantly, the Fourth Circuit below relied heavily on the Establishment Clause jurisprudence and was not swayed by the government’s assertion of a Kleindienst-type limited approach.  Specifically, the Fourth Circuit applied Lemon v. Kurtzman, 403 U.S. 602 (1971).  The Ninth Circuit for its part in its decision did not reach the Constitutional question, since it held that there was a high likelihood of success that the second Executive Order contravened the Immigration and Nationality Act, by exceeding the President’s authority under 8 USC § 1182(f), discriminating on the basis of nationality, and disregarding the procedures for setting annual admissions of refugees. Relying on the statutory argument meant the Ninth Circuit could avoid the constitutional issues altogether.

Since the Supreme Court has now sided with the government in narrowing the scope of the preliminary injunction, it appears the high court is not inclined to fully embrace the Ninth Circuit’s statutory scope argument under section 1182(f). Had the court been so inclined, it would not have implicitly found a high likelihood of success on the merits and that irreparable harm would result to the government. It also appears the Supreme Court is not inclined to wholly embrace the Fourth Circuit’s Establishment Clause starting point, either – at least not in such a way that it would limit the power of the President over persons lacking a sufficient connection to relatives or entities in the United States.

If the Supreme Court had fully embraced the decisions below, then they would not have granted the government’s stay in any fashion, since the President would not have had statutory authority at all under 1182(f) to issue the travel ban in the first place. However, importantly, there is nothing to limit the Supreme Court in its future merits decision from finding that 1182(f) is limited by either other sections of the Immigration and Nationality Act to restrict the President’s power as to those persons with a sufficient connection to the U.S. and/or restricted by our Constitution, specifically the First Amendment.

The Supreme Court at the outset in its merits analysis will have to determine the correct level of scrutiny for the plaintiffs’ First Amendment claim. Since a majority of the court is inclined to make distinctions relating to a person’s connection to person or entities in the U.S., there is nothing to prevent the high court from asserting a bifurcated level of scrutiny depending on the persons connection with U.S. persons or entities. I predict the Supreme Court will reject Kleindienst v. Mandel as wholly controlling the issues in Trump v. IRAP.

 

If Kleindienst were the touchstone case, then the majority would not have ruled as it did on the stay. I predict the majority of the high court will find that the lowest and most deferential level of scrutiny is not applicable at least as to those with an appropriate connection to the United States. Kleindienst v. Mandel related to the agency’s decision to deny one applicant his waiver of one ground of inadmissibility. The current case involves much more. 

In the current case, if the government’s argument were wholly endorsed a dangerous precedent would be set. The current cases involve not one agency decision but an entire Executive Order with breathtaking scope and application. Analysis of the propriety of such purported overreach and the executive power to set forth such sweeping restrictions on classes of aliens is a far cry from Kleindienst v. Mandel.  Although in Kleindienst the foreign scholar coming to the U.S. to speak had some connections to the U.S., the connections asserted by the plaintiffs in the present litigation are (for many) much more important and intrinsic to the plaintiffs’ lives and their families. Consider also refugees who seek a new life, and family members who seek to be reunited with U.S. relatives, and employees or students who have job offers or offers of admissions.

For these reasons, Kleindienst v. Mandel will not be the touchstone as the government urges. Instead a heightened level of scrutiny will be embraced by the Court. In its merits decision, the Supreme Court will reject the “legitimate and bona fide” test, instead requiring far more significant reasons to bar entry of a group of aliens, so long as they can show the requisite connect to the United States. A lot has happened since 1972, including an erosion of the plenary power doctrine. In a series of cases the Supreme Court has shown that it will not just accept, as it did in the 1880s Chinese Exclusion Act case that any purported governmental reason for a restriction on immigration is an “incident to sovereignty” and therefore permitted. Instead, the Supreme Court will require the government to show more.

The Supreme Court is now in new territory. Where it goes in its merits decision will be determined by how it views Kleindienst v. Mandel.  If the Supreme Court sees the present case as being about more than a Kleindienst-type exclusion, as it should, and looks outside the four corners of the Executive Order, then the Supreme Court will fashion a new legal test and reject the limited rational basis type analysis of Kleindienst. It will endorse a rational basis-plus or even higher scrutiny in cases where plaintiffs can show a sufficient connection to the United States.  Viewed correctly, this case is not just an immigration exclusion case but one of the most crucial cases of our lifetime. It will define the precise Constitutional limits on a president’s attempt to assert unlimited power.

KJ

July 25, 2017 in Current Affairs | Permalink | Comments (2)

Teach Your Children: Teacher refuses to answer Border Patrol questions at checkpoint

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News from San Diego.  Middle school teacher Shane Parmely was detained for over an hour by Border Patrol agents at a checkpoint in New Mexico because she refused to answer a question about whether she was a U.S. citizen.

Parmely’s family helped her film the incident, which she posted Friday evening on her Facebook account. Parmely told Border Patrol agents that she believed she did not have to answer their questions. One agent showed her a card listing immigration law and a Supreme Court case decision that give Border Patrol agents the authority to operate checkpoints within 100 miles of the border and to ask questions about citizenship without warrants.

“Enforcing racist laws perpetuates institutional racism,” Parmely added in a Facebook comment. “I’m sick of helping perpetuate racist laws just because I’m not inconvenienced by them.”

Check out the commentary about this story.

KJ

July 25, 2017 in Current Affairs | Permalink | Comments (3)