Tuesday, September 26, 2017

Argument preview: The constitutionality of mandatory and lengthy immigrant detention without a bond hearing

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Here is my preview of the oral argument on October 3 in the Supreme Court in Jennings v. Rodriguez, which involves a challenge to immigrant detention under the Immigration and Nationality Act.  My conclusion:

"Whatever the outcome, a decision in the case will have an immediate and significant impact. In a January 2017 executive order, which included numerous immigration-enforcement initiatives, President Donald Trump announced an end to the “catch and release” of immigrants facing removal from the United States. Detention without bond became official immigration-enforcement policy. The court’s decision in Jennings v. Rodriguez is therefore likely to bear on the administration’s ability to implement its immigrant-detention program." 

KJ

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

Poll: Americans back DACA by a huge margin

ABC News reports that a vast 86 percent of Americans support a right to residency for undocumented immigrants who arrived in the United States as children, with support crossing the political spectrum. Two-thirds back a deal to enact such legislation in tandem with higher funding for border control.

See PDF with full results here.

Possibly in light of President Donald Trump’s decision to phase out the Deferred Action for Childhood Arrivals program, disapproval of his handling of immigration overall reaches 62 percent in this ABC News/Washington Post poll. Just 35 percent approve.

Additional hurdles for Trump are his demand for a wall on the U.S. border with Mexico -- again 62 percent oppose it -- and substantial concerns about his immigration enforcement policies.

Americans were asked whether they support “a program that allows undocumented immigrants to stay in the United States if they arrived here as a child, completed high school or military service and have not been convicted of a serious crime,” all elements of DACA, established by Barack Obama by executive order in 2012. Support spans demographic groups, including three-quarters of Republicans and conservatives, 86 and 87 percent of independents and moderates, and 97 and 96 percent of Democrats and liberals.

Support reaches 94 percent among Hispanics, 93 percent among blacks and 84 percent among whites. Strong support, 87 percent among Hispanics and 85 percent among blacks, declines among whites to 61 percent.

 

 

Trump early this month said he would rescind DACA, giving Congress a six-month window to act before nearly 800,000 undocumented immigrants lose protection from deportation. He later reached a tentative agreement with top congressional Democrats for DACA legislation accompanied by upgraded border security.

As noted, 65 percent support that potential compromise -- a bipartisan result, with 76 percent support among Republicans, 66 percent among independents and 59 percent among Democrats. Similarly, 71 percent of moderates, 66 percent of conservatives and 56 percent of liberals back the deal. Just 27 percent of Americans in this poll, produced for ABC News by Langer Research Associates, are opposed.

 

Enforcement

Just 30 percent of Americans say Trump has immigration enforcement “about right,” compared with the 44 percent who say this was so before he took office. Nearly half (45 percent) say immigration enforcement under Trump is “too tough,” much higher than the 6 percent who say this was the case before he took office. That said, 49 percent say enforcement was “not tough enough” before Trump took office; just 22 percent say so now.

Matching the number who disapprove of Trump’s handling of immigration overall, 62 percent oppose his promise to build a wall along the Mexican border; this has held steady since Trump first proposed it. Fifty-five percent also oppose cutting legal immigration by half, another proposal backed by Trump. In contrast, 79 percent support requiring employers to verify that new hires are here legally – a current requirement, with stricter enforcement on the table.

In a general measure of suspicion, just 12 percent of Americans think undocumented immigrants commit more violent crimes than other people in the country. The vast majority instead say they commit violent crimes at either an equal or lesser rate than U.S. citizens (64 percent and 19 percent, respectively). Approval of Trump’s handling of immigration is stronger among those who think undocumented immigrants commit more violent crimes than U.S. citizens (78 percent); it drops to 33 percent among those who think crime rates are the same, and 12 percent among those who think they’re lower among undocumented immigrants.

 

Groups

Views on Trump’s handling of immigration are highly partisan. Three-quarters of Republicans and 61 percent of conservatives approve, vs. a third of independents and moderates, 10 percent of Democrats and 8 percent of liberals.

Differences also emerge by demographic groups. Forty-three percent of men approve, vs. 28 percent of women. Americans over age 40 are more apt than younger adults to approve, 42 vs. 24 percent among those younger than 40. And while 46 percent of whites approve, this drops to 13 percent among both blacks and Hispanics alike.

 

Methodology

This ABC News/Washington Post poll was conducted by landline and cellular telephone Sept. 18-21, 2017, in English and Spanish, among a random national sample of 1,002 adults. Results have a margin of sampling error of 3.5 points, including the design effect. Partisan divisions are 31-23-36 percent, Democrats-Republicans-independents.

The survey was produced for ABC News by Langer Research Associates of New York, N.Y., with sampling, data collection and tabulation by Abt Associates of Cambridge, Massachusetts. See details on the survey’s methodology here.

KJ

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

The Alternative for Germany Party's Rise in the German Elections

 

 

 

As Kit Johnson blogged about yesterdayAlternative for Germany (Alternative für Deutschland, AfD) had a big election win in the German elections.  Voicing nationalist anti-immigrant, anti-refugee, anti-Euro views, AfD has become the German parliament's third most powerful political party.

The videos above offer a flavor of the AfD party.  As Fox News put it,  "Like Trump, Germany's anti-immigrant party shows unexpected strength."

The Guardian has what I think to be a balanced view of the German election results and the implications of the AfD's breakthrough election.

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KJ

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

Immigration Article of the Day: Making Immigrants into Criminals: Legal Processes of Criminalization in the Post-IIRIRA Era by by Leisy Abrego, Mat Coleman, Daniel E. Martínez, Cecilia Menjívar, Jeremy Slack

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Professor Leisy Abrego

Making Immigrants into Criminals: Legal Processes of Criminalization in the Post-IIRIRA Era by By Leisy Abrego (University of California, Los Angeles), Mat Coleman (The Ohio State University), Daniel E. Martínez (University of Arizona), Cecilia Menjívar (University of Kansas), Jeremy Slack (The University of Texas, El Paso)

Criminalizing immigrants has underpinned US immigration policy over the last several decades. This paper examines the processes of immigrant criminalization in three contexts: 1) the legal history that has produced the current situation, 2) enforcement programs and practices at the border and interior, and 3) the consequences for immigrants and their families living in the United States. In examining such processes, this paper extends the discussion of the criminalization of immigrants beyond the existing literature, on two basic counts. First, it focuses on legislative changes that paved the way for the passage of the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, which was a crucial year for the criminalization of immigration. Second, this paper documents how the criminalization of immigrants turns people and indeed whole communities, into law enforcement objects through specific programs and practices, and how immigrants experience this in their family, school, and work lives.

Download the PDF of the article

KJ

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

Monday, September 25, 2017

Immigration Professors at Clinical Law Review Writers' Workshop

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This weekend, the Clinical Law Review -- a peer-edited journal devoted to issues of lawyering and clinical legal education -- held its annual Writers' Workshop at NYU School of Law. The purpose of the Writers' Workshop is to provide an opportunity for clinical teachers who are writing in any subject to meet with other clinical law teachers to discuss their works-in-progress and receive constructive feedback on how to further develop their articles.  Attendees meet in small groups organized by subject matter, which are generally facilitated by one or two past or present members of the Board of Editors for the Clinical Law Review.  NYU Law School also provides scholarships to a number of participants, designed to allow clinical faculty who receive little or no travel support from their law schools to participate in the Workshop.

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This year (like prior years) included a strong showing of immigration scholars. Richard Boswell and I co-facilitated an immigration group consisting of drafts written by David Baluarte, Caitlin Barry, Jason Cade, Carrie Rosenbaum, and Phil Torrey (all pictured above). Muneer Ahmad and Sameer Ashar facilitated groups on immigration and clinic design/experiential education, respectively, and other participants of the Workshop included Sarah Sherman-Stokes, Debbie Gonzalez, Bernie Perlmutter, Pooja Dadhania, and Christine Cimini.

I highly recommend this Workshop for clinical law teachers (including fellows and non-tenure track clinicians) looking to receive scholarship feedback in a supportive environment.  The Workshops typically take place in late September at NYU.

-JKoh 

 

September 25, 2017 | Permalink | Comments (0)

The New Travel Ban: Undermining the Immigration and Nationality Act by Peter Margulies

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Peter Margulies has this commentary on Lawfare on Trump's latest travel ban.  His conclusion:

"Because of the new ban’s terms, the Supreme Court will most likely find that the pending challenges to the revised [Executive Order (EO)] are moot. The Court has just canceled its scheduled October 10 argument on EO 13780 pending briefing on the new ban’s relevance to the case. Challenges to the new ban should emerge almost immediately. If the experience with the prior EOs is illustrative, the administration may find itself back before the Supreme Court in the spring of 2018. At that time, perhaps the Court will weigh in on the merits and protect the INA’s structure from further incursions."

KJ

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

Justices take travel ban cases off October argument calendar

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By for SCOTUSBlog reports that the Supreme Court announced that it had removed the challenges to President Donald Trump’s March 6 executive order, sometimes known as the “travel ban,” from its argument calendar for October. In a one-paragraph order issued this afternoon, the justices also directed the parties to file briefs by October 5 addressing whether the challenges are moot – that is, no longer an actual dispute – in the wake of two developments: Trump’s proclamation yesterday, which indefinitely restricts travel to the United States by nationals of eight countries; and the scheduled expiration of the March 6 order’s temporary suspension of the admission of refugees on October 24.

KJ

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

SoCal Training on Use of State Pardons in Immigration Context

This upcoming training in Los Angeles -- the first of its kind that I've seen -- may be of interest to blog readers:

              STATE PARDONS:   APPLICATION PROCESS AND USE IN THE IMMIGRATION CONTEXT

Please join us to address the process and criteria for applying for California state pardons and their effect on removal and naturalization eligibility.

Sponsored by:  Immigration Committee of the National Lawyers Guild-LA Chapter; ACLU of Southern California, UCLA Law School Criminal Defense Clinic

 

When:  Tuesday, October 3, 2017

              5:30 pm – 7:30 pm

(registration & light dinner begin at 5:00 pm)

 Where:  MALDEF Building  - downtown Los Angeles

           634 South Spring Street, Los Angeles, CA 90014

CLE CREDITS:    2.0    COST:  $60 general public;  $35  NLG/NIP members and non-profit staff

Speakers:   Ingrid Eagly, UCLA Law School Criminal Defense Clinic;  Jennie Pasquarella, ACLU of Southern California; Tony Pullara, Law Office of Tony Pullara

 Moderator:  Stacy Tolchin, Law Offices of Stacy Tolchin

You can register online:   https://www.eventbrite.com/e/state-pardons-application-process-and-use-in-the-immigration-context-tickets-37741958213

 For more info contact Vera Weisz, vera[at]wilawgroup[dot]com. 

-JKoh                                  

September 25, 2017 | Permalink | Comments (0)

Oral Argument Preview in Sessions v. Dimaya

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Here is my SCOTUSBlog preview to the oral argument on October 2 in Sessions v. Dimaya, in which the Supreme Court will decide whether a criminal review provision ("crime of violence") is void-for-vagueness.

KJ

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

Travel Ban 3.0

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Penn State Law’s Center for Immigrants’ Rights has updated its resource page to include items related to last night’s Proclamation (Muslim Ban 3.0).  

Below is a list of new resources and here is the link.

Resources on Trump Executive Orders & Proclamations

Presidential Proclamation on Enhancing Vetting Capabilities & Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats (Muslim Ban 3.0), September 24, 2017.

On September 24, the President issued a Proclamation that indefinitely blocks the entry for certain individuals from eight countries: Iran, Iraq, Libya, Chad, North Korea, Syria, Somalia, Sudan and Yemen (Sudan has been dropped).

KJ

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

From the Bookshelves: Sponsored Migration: The State and Puerto Rican Postwar Migration to the United States by Edgardo Melendez

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Sponsored Migration: The State and Puerto Rican Postwar Migration to the United States by Edgardo Melendez

Puerto Rico is often left out of conversations on migration and transnationalism within the Latino context. Sponsored Migration: The State and Puerto Rican Postwar Migration to the United States by Edgardo Meléndez seeks to rectify this oversight, serving as a comprehensive study of the factors affecting Puerto Rican migration to the United States from the late 1940s to the 1960s. Examining the consequences of the perceived problem of Puerto Rican overpopulation as well as the cost of U.S. imperialism on the lives of Puerto Rican workers, Meléndez scrutinizes Puerto Rican migration in the postwar period as a microcosm of the political history of migration throughout Latin America.
   
Sponsored Migration places Puerto Rico’s migration policy in its historical context, examining the central role the Puerto Rican government played in encouraging and organizing migration during the postwar period. Meléndez sheds an important new light on the many ways in which the government intervened in the movement of its people: attempting to provide labor to U.S. agriculture, incorporating migrants into places like New York City, seeking to expand the island’s air transportation infrastructure, and even promoting migration in the public school system. One of the first scholars to explore this topic in depth, Meléndez illuminates how migration influenced U.S. and Puerto Rican relations from 1898 onward. 
 
KJ
 

 

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

Anti-Immigrant Nationalism Wins Big in Germany

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AfD, Germany's "anti-immigrant, anti-euro" and "right-wing nationalist" party has vaulted its way into German parliament for the first time. Not only that, AfD has become the parliament's third most powerful political party after Angela Merkel's CDU  (conservatives) and the SPD (social democrats).

Alexander Gauland, an AfD leader and now MP, told the press: "One million people, foreigners, being brought into this country are taking away a piece of this country and we as AfD don't want that... We say I don't want to lose Germany to an invasion of foreigners from a different culture. Very simple." He said that AfD's victory was a mandate to "uncompromisingly address" migration.

Merkel was reelected to serve a fourth term as Germany's chancellor, but her election this time around is very different in light of AfD's victory. She has acknowledged the "concerns, worries and anxieties" of AfD voters. Time will tell how and whether she'll address them and what that might mean for Germany's immigration policy.  

-KitJ

September 25, 2017 in Current Affairs | Permalink | Comments (7)

Immigration Article of the Day: The Power to Control Immigration is a Core Aspect of Sovereignty by John C. Eastman

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The Power to Control Immigration is a Core Aspect of Sovereignty by John C. Eastman

Harvard Journal of Law and Public Policy, Vol. 40, 2016

Abstract

Where in our constitutional system is the power to regulate immigration assigned? Professor Ilya Somin argues that the power to regulate immigration is not a power given to Congress because it is not enumerated. But I think it is so clearly a power given to Congress and that such was so well understood at the time of our founding that the Constitution did not even need to specify it. Even so, I think the Constitution does specify it. The notion that the power to regulate immigration is not contained within the power of naturalization is an anachronistic view of the latter power that understands naturalization merely to confer citizenship and not as having anything to do with who can immigrate into this country in order to obtain citizenship.

KJ

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

Sunday, September 24, 2017

Your Playlist: Cheech & Chong (and Springsteen)

Cheech and Chong's Born in East LA is the citizenship song you need this semester. You get the beauty of Bruce Springsteen's original song (Born in the USA) without the Vietnam War commentary. You students will love lyrics like these:

Oh yeah, you were born in East L.A
Let's see your green card
Huh? green card?
I'm from East L.A

-KitJ

September 24, 2017 in Music | Permalink | Comments (0)

After Hate Murder, Widow Battles Deportation

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Photo of Sunayana Dumala courtesy of Wired

 

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A picture of Srinivas Kuchibhotla, an immigrant from India who was recently shot and killed in Kansas, is surrounded by roses during a vigil in honor of him at Crossroads Park in Bellevue, Washington, U.S. March 5, 2017. Photo courtesy of Huffington Post


The hate murder of Indian avionics engineer Srinivas Kuchibhotla in Kansas City earlier this year shocked many people.  His killing is affecting his widow's ability to remain in the United States. 

Even in her grief, Sunayana Dumala realized that her husband’s death would put her immigration status in jeopardy. “The same night I lost Srinivas, I knew,” Dumala said in a call from Kansas this week, where she has since returned to work as a database developer. Though the couple had already been waiting for permanent residency for seven years, she was dependent on her husband’s H-1B visa to stay in the United States.

Dumala flew to her native Hyderabad for her husband’s last rites. After the services, she began a process of bureaucratic wrangling to be able to return home to the US, where she had lived since 2007. Luckily, she was assisted by immigration attorneys from her workplace, Intouch Solutions, and her husband’s company, Garmin. Rep. Kevin Yoder, the Republican congressman from Dumala’s area of suburban Kansas, advocated for her case with immigration and customs officials, as well. Dumala applied for two different visas: an H-1B sponsored by her company and a U visa, which is reserved for victims of crime. She finally returned home to Kansas this spring on a temporary fix known as “humanitarian parole,” used in emergency situations to allow entry to someone is otherwise inadmissible. She’s on a 12-month work authorization while she waits for her visa to be approved.

But it's likely Dumala’s immigration saga has just begun. Even if she receives one of those visas, she’ll be shunted to the back of the decades-long line of Indian tech workers waiting for a green card.  Stay tuned.

KJ

 

September 24, 2017 in Current Affairs | Permalink | Comments (0)

Law Student Katie Kelly Commentary: The Various Claims Challenging the Rescission of DACA

This is a guest post by third year UC Davis law student Katie Kelly:

The Trump administration disappointed millions of people across the United State on September 5, when it announced its rescission of President Obama’s Deferred Action for Childhood Arrivals (DACA) program. The effective date of the rescission was delayed for six months to provide Congress time to pass adequate immigration legislation.  Several lawsuits have been filed challenging the legality of the action. Details of those suits and the claims therein are as follows, chronologically:

New York et al. v. Trump et al.

 On September 6, fourteen states and the District of Columbia joined New York in bringing a suit against President Trump and Elaine Duke, in their official capacities, and the Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), U.S. Immigration and Customs Enforcement (ICE), and the United States. The States, on behalf of their respective citizens and DACA beneficiaries, are claiming the following violations:

(1)  Equal Protection provided by the Due Process Clause of the Fifth Amendment for racial discrimination through the rescission. This claim rests on Donald Trump’s generalizations of and racist comments about Mexicans both during his campaign and his presidency. The States further allege that President Trump’s recent pardon of former Maricopa County Sheriff Joe Arpaio displays racial animus, because Arpaio was found in criminal contempt for continuing to racially profile, despite being ordered to cease the practice. 

(2)  Due Process Clause of the Fifth Amendment for potentially using information obtained during the DACA registration against DACA registrants. This claim rests on the fact that during registration for DACA, applicants provide identifying information to the government in reliance of governmental assurances that the information will not be used against the applicant in future immigration proceedings. 

(3)  Administrative Procedure Act for abuse of discretion and acting arbitrarily and capriciously in rescinding DACA with minimal formal guidance;

 (4)  Administrative Procedure Act for failing to complete a notice-and-comment process before changing a rule that will impact substantive rights; and

 (5) Regulatory Flexibility Act for failing to issue required analysis of the impacts of rules on small entities.

 

Regents of the University of California & Janet Napolitano v. DHS & Elaine Duke

The Regents of the University of California and Janet Napolitano, President of UC, filed suit against DHS and Elaine Duke on September 8, on behalf of the UC and all currently enrolled students at the university. UC asserts New York’s third and fourth claims, for violations of the Administrative Procedure Act. Plaintiffs also assert a third cause of action for violation of Procedural Due Process under the Fifth Amendment, claiming that the rescission denies the UC and its students constitutionally-protected interests without notice or the opportunity to be heard.

 

California et al. v. DHS et al.

California, joined by Maine, Maryland, and Minnesota, filed suit against DHS, Elaine Duke, and the US on September 11. The States, on behalf of their citizens and DACA beneficiaries, are seeking declaratory and injunctive relief based on claims that echo those brought by New York. Specifically, California’s complaint lists all five causes of actions iterated in the New York lawsuit above, based on substantially similar facts. In addition, California states a claim of equitable estoppel based on the fact that DACA registrants were given assurances that information collected from them would not be used against them; the States are seeking the Defendants to be equitably estopped from using this information for any purposes other than those originally expressed by DACA.

 

City of San Jose v. Trump et al.

 The city of San Jose filed suit against Donald Trump, Elaine Duke, and the US on September 14, on behalf of the city and DACA recipients therein. The suit alleges claims similar to the first and fourth claims in New York, above, for violation of equal protection under the Fifth Amendment and the procedural requirements under the Administrative Procedure Act.

 

National Association for the Advancement of Colored People v. Trump et al.

NAACP filed suit on September 18, on behalf of the people of color eligible for DACA – about 95% of all DACA registrants. NAACP has brought their claims against Donald Trump, Jeff Sessions, Elaine Duke, USCIS, ICE, DHS, and the US. NAACP has alleged the same claims brought in California, above. Among other relief, the NAACP is seeking vacation of the rescission and enjoining Defendants from using information obtained through DACA registry against registrants, their families, or their employers. 

 

Garcia et al. v. United States of America et al.

This suit was also filed on September 18, on behalf of six DACA recipients – Dulce Garcia, an attorney in San Diego; Viridiana Chabolla Mendoza, a law student at UC Irvine; Jirayut Latthivongskorn, a medical student at UC San Francisco; Norma Ramirez, a Ph.D. candidate at Fuller Theological Seminary in Pasadena; Miriam Gonzalez Avila, a teacher in Los Angeles; and Saul Jimenez Suarez, a special education teacher, coach, and mentor in Los Angeles. The suit was filed against the US, Donald Trump, DHS, and Elaine Duke. The suit lists eight causes of action – the five claims stated in New York, above; a procedural due process claim similar to the one brought by the University of California, above; the equitable estoppel claim, as brought in California, above; and a claim for declaratory judgment, under the Declaratory Judgment Act. The government claims that the basis for its rescission is that DACA is unlawful; with the declaratory judgment claim, Plaintiffs seek a declaration that the program is, in fact, lawful.

 

Batalla Vidal v. Baran et al.

Make the Road Work (a nonprofit organization seeking to empower immigrant, Latino, and working-class communities in New York), the National Immigration Law Center, and the Worker and Immigrant Rights Advocacy Clinic at Yale Law School originally filed this suit on August 25, 2016, challenging the decision in United States v. Texas to block an expansion of DACA. On September 15, 2017, the Eastern District of New York granted Plaintiff leave to file a second amended complaint, and on September 19, Plaintiffs filed against Elaine Duke, Jeff Sessions, and Donald Trump, for the DACA rescission. Plaintiffs, who now include six DACA recipients and Make the Road New York, are seeking certification as a class. Plaintiffs’ claims mirror the first, third, fourth, and fifth claims brought in New York, above, as well as a procedural due process claim, similarly brought in Regents of UC, above.

 

Analysis

Of the eight claims brought via the various actions, the equitable estoppel claims will be the first to be dismissed, as equitable estoppel cannot be brought as a stand-alone cause of action. Similarly, Garcia’s declaratory judgment claim will fail as a cause of action, as the Declaratory Judgment Act provides for a remedy for a valid claim, rather than a stand-alone claim.

The Regulatory Flexibility Act claim may also fail. This Act generally applies to regulations directly impacting small entities and has been held not to require an analysis for every indirect effect on small entities. I suspect Plaintiffs are correct that the rescission is a regulation issued by an agency for the purposes of the statute; however, the rescission primarily is targeted toward immigration enforcement, not toward the regulation of small entities. The indirect effects of the rescission on small entities likely will be insufficient to sustain this claim; thus, this claim will fail in court.

The Administrative Procedure Act claims are linked because they both depend on the initial legality of DACA. I agree that there should have been a notice and comment process, in accordance with the Act, prior to the rescission. However, President Obama failed to complete a similar notice and comment process upon signing DACA. Thus, a court could determine that rescinding the executive order without a notice and comment process is valid because it was unlawfully passed without a similar process. On the other hand, the courts could consider the rescission in isolation, refusing to make a finding on the legality of the passage of DACA, as irrelevant to the specific issue of the rescission. A third option courts could take is finding that the notice and comment process was violated in the rescission, regardless of whether it was violated in the passage of DACA – a sort of “two wrongs don’t make a right” approach. In either of these cases, this claim has a chance of succeeding.           

The Administrative Procedure Act claim based on abuse of discretion and arbitrary and capricious action is another slippery one. Acting Secretary Duke’s rationale for rescinding DACA was merely that it “is unlawful.” If it is true that DACA is unlawful, the decision to rescind it may not be found to be arbitrary. In order to settle this issue, courts may be compelled to determine if the passage of DACA was lawful in the first place. Conversely, courts could give more weight and consideration to the broad and far-reaching impacts of the rescission to find that the thin rationale given by the administration was inadequate. As such, this claim could go either way.

The Fifth Amendment claims are generally compelling. It is well-established that immigrants in the U.S., whether undocumented or not, are entitled to certain Constitutional rights. Protections under the Fifth Amendment have long fallen within these protected rights. UC’s procedural due process claim has a slim chance of surviving, based on the fact that the UC has invested substantial resources in DACA recipients; however, this claim is tenuous. Since DACA was implemented as an executive order, procedurally, it can be overturned by another executive order by President Trump. The court likely will have to consider whether the UC’s deprivation of its investments in DACA recipients is an impermissible denial of property prohibited under the Fifth Amendment.

The information use claim under the Fifth Amendment provides a stronger argument. As detailed in nearly all of the aforementioned suits, DACA recipients identified themselves and provided personal information to the federal government in reliance on the government’s assurance that the information would not be used against them. To allow the information to be used in deportation proceedings at this point seems fundamentally unfair. In the very least, courts should grant the requested equitable estoppel to disallow this type of use of the information provided by registrants.

Similarly, the equal protection claim under the Fifth Amendment will likely stand and be heard by the respective courts. Considering the fact that President Trump has been forthcoming with derogatory statements about Mexican immigrants, and he ran a substantial portion of his campaign on this type of ideology, Plaintiffs will have ample evidence to present in support of an argument for finding a discriminatory purpose in cancelling DACA. However, the rescission memorandum was penned by Elaine Duke. Plaintiffs may have difficulty imputing the president’s racial animus, as evidenced by his unofficial statements, onto the acting secretary of the DHS. Thus, this claim may fail.

 

Conclusion

Unfortunately, none of the claims brought challenging the rescission of DACA seems foolproof for the plaintiffs. Optimistic minds, however, hope that this administrative action will compel Congress to take seriously the challenge of passing comprehensive immigration reform. While this decision is a grave disappointment to many people in the US, it has highlighted the great benefit, strength, and contribution that DACA recipients have given to the US and the importance of passing effective legislation to protect these individuals. Executive orders are simply too fragile to provide lasting protection and support for this strong but vulnerable community. And, undoubtedly, they deserve our support and protection.

KJ

September 24, 2017 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Sanctuary Lost? Exposing the Reality of the 'Sanctuary-City' Debate & Liberal States-Rights' Litigation by Cara Cunningham Warren

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Sanctuary Lost? Exposing the Reality of the 'Sanctuary-City' Debate & Liberal States-Rights' Litigation
by Cara Cunningham Warren, University of Detroit Mercy School of Law

Abstract

Through inflammatory yet powerful rhetoric, Executive Order 13,768, and Department of Justice directives, the Trump Administration seeks to withhold federal funding from “sanctuary cities.” The administration also has returned to the Bush-era Secure Communities Program, which has led to a 150% arrest-rate increase of the non-criminal, undocumented migrants who would otherwise be integrated into “sanctuary” jurisdictions.

Many liberal voices have responded in legal and academic terms, but no unified liberal counter-narrative has been asserted. This rhetorical mismatch has obscured fundamental aspects of the “sanctuary” debate. For example, integrationist jurisdictions are sovereign. Pursuant to basic immigration federalism and states-rights’ principles, they voluntarily participate in federal immigration enforcement, but their participation cannot be compelled or coerced. In addition, integrationist jurisdictions do not shield criminals. Instead, their approach is rooted in proven and effective policing philosophies that encourage community residents to participate in and support law enforcement efforts.

In addition to the rhetorical vacuum, the liberals’ use of states-rights’ litigation to protect federal funding is incomplete and may endanger liberal integrationist policies. In short, the aspect of Executive Order 13,768 that is garnering the most attention (i.e., funding) can be rebuffed via the states-rights’ principles noted above, yet the aspect that poses a grave threat to integrationists (i.e., returning to the Secure Communities Program) is not being addressed.

This paper urges liberals to continue to preserve funding via states-rights’ litigation, as necessary, but to consider it only one of three specific tactics designed to prompt a return to immigration enforcement priorities. Specifically, liberals also should assert an integrationist counter-narrative and use litigation as a form of non-cooperation designed to prompt discourse.

KJ

September 24, 2017 in Current Affairs | Permalink | Comments (0)

Saturday, September 23, 2017

At the Movies: Constructing the Terrorist Threat

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Constructing the Terrorist Threat

 
Deepa Kumar, one of the nation’s foremost scholars on Islamophobia, looks at how Muslims have become the predominant face of terror in U.S. news and entertainment media -- even though terror attacks by white extremists have far outnumbered attacks by Muslim Americans since 9/11.

Arguing that racialized threats have long been used to induce moral panics and advance anti-democratic policies, Kumar explores how ruling elites have been raising the specter of Arab and Islamic terror since the 1970s to justify militarism, war, and curbs on civil liberties. From the Iran-Hostage Crisis in 1979 to the “war on terror” after 9/11 to the rise of ISIS today, she argues that Americans have been taught to fear Muslims out of all proportion to reality, presenting a wealth of eye-opening data about the actual threat level posed by Muslim terrorists in the United States.

Constructing the Terrorist Threat offers a clear-headed assessment of terrorism that couldn’t be more timely and urgent given the politics of fear that now dominate our political landscape.

Duration: 55 min
ISBN: 1-944024-96-4
Date Produced: 2017
Subtitles: English
 

KJ

September 23, 2017 in Current Affairs, Film & Television | Permalink | Comments (0)

Have You No Decency? Border Patrol Arrests Parents While Infant Awaits Serious Operation

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Irma and Oscar Sanchez were apprehended by the Border Patrol when they took their infant son, Isaac, to a children's hospital to have emergency surgery. John Burnett/NPR 

NPR reports on a story that should trouble us all.  While they pondered the predicament of immigrant parents (Irma and Oscar Sanchez)  as their son was in need of surgery in a Harlingen, Texas, hospital, a Border Patrol agent showed up in the waiting room — a nurse may have turned them in — and said he could arrange for officers to escort the parents through the immigration checkpoint to Corpus Christi, where infant son could have the surgery done that he needed.  But the agent said when they arrived, they would be arrested and put into deportation proceedings. The couple agreed.

 

 

 

Army Senator Joe McCarthy Hearings in 1954

KJ

September 23, 2017 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Loud and Soft Anti-Chevron Decisions by Michael Kagan

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Loud and Soft Anti-Chevron Decisions by Michael Kagan

Abstract

This essay proposes a methodology for interpreting the Supreme Court’s long-standing inconsistency in the application of the Chevron doctrine. Developing such an approach is important because this central, canonical doctrine in administrative law is entering a period of uncertainty, after long seeming to enjoy consensus support on the Court. In retrospect, it makes sense to view the many cases in which the Court failed to apply Chevron consistently as signals of underlying doctrinal doubt. However, to interpret these soft anti-Chevron decisions requires a careful methodology, because sometimes justices are simply being unpredictable and idiosyncratic. However, where clear patterns can be discerned, and where these patterns can be explained by a coherent doctrinal theory, there is good reason to use them as a foundation for refining the Chevron doctrine.

KJ

September 23, 2017 in Current Affairs | Permalink | Comments (0)