Friday, August 31, 2018

Federal District Court in Texas Does not Enjoin Continuation of DACA

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A federal court in Texas today denied a request for a preliminary injunction  by Texas and nine other states seeking to block renewals of grants of Deferred Action for Childhood Arrivals (DACA).  

In August, Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas held a hearing on a motion for a preliminary injunction to force the federal government to cease accepting new DACA applications, and to prevent renewals of current grants of deferred action pending resolution of the lawsuit.  Judge Hanen had granted the injunction barring the implementation of the Deferred Action for Parents of American policy, which ultimately was affirmed by an equally divided Supreme Court

Read Judge Hanen’s ruling denying the request for a preliminary junction hereCNN reads the ruling as suggesting that, even though he did not do so now, Judge Hanen might strike down DACA in the future.

KJ

August 31, 2018 in Current Affairs | Permalink | Comments (0)

Your Playlist: Capitol Steps

The satirical group Capitol Steps released this updated version of Hotel California called Hotel Arizona:

I'll be honest, I won't be playing this in class anytime soon. I cannot stand the song Hotel California. When I was an exchange student in Spain many years ago, my housemate asked me to translate the song for her - it was her favorite. When I was done, she was horrified. She didn't realize how creepy the song was. It super is. Still, Eagles enthusiasts may enjoy this parody. Especially the trick ending.

-KitJ

August 31, 2018 in Music | Permalink | Comments (0)

Rutgers Law Launches Centers Focusing on Immigration and Civil Rights

Rutgers Law School has launched two new academic centers.

Professor Sahar Aziz, a Chancellor’s Social Justice Scholar is launching the Rutgers Center for Security, Race and Rights.  The Center will examine civil rights law and policy that disproportionately affect Muslim, Arab, and South Asian communities in the United States through an interdisciplinary and cross-community approach.  

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Former ImmigrationProf blogger, Professor Rose Cuison Villazor, another Chancellor’s Social Justice Scholar, is starting the Center for Immigration Law, Policy, and Justice.  The Center's mission is to advance equitable and more inclusive immigration and citizenship laws, policies and practices. The CILJP will host a “Colloquium on Sanctuary” speaker series in the fall semester where scholars, advocates and students will explore the legal, political and ethical meaning of providing “sanctuary” to immigrants. In the spring, the CILJP will launch a “Citizenship Initiative” to assist legal permanent residents in their application for naturalization. 

August 31, 2018 in Current Affairs | Permalink | Comments (0)

From the Bookshelves: In a Day’s Work: The Fight to End Sexual Violence Against America’s Most Vulnerable Workers by Bernice Yeung

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An acclaimed journalist investigates sexual assault against the invisible workers who are an essential part of the #metoo and #timesup movements

Apple orchards in bucolic Washington State. Office parks in Southern California under cover of night. The home of an elderly man in Miami. These are some of the workplaces where female workers have suffered brutal sexual assault and shocking harassment at the hands of their employers, often with little or no official recourse. In this harrowing yet often inspiring tale, investigative journalist Bernice Yeung exposes the epidemic of sexual violence levied against women farmworkers, domestic workers, and janitorial workers and charts their quest for justice in the workplace.

Yeung takes readers on a journey across the country, introducing us to women who came to America to escape grinding poverty only to encounter sexual violence in the United States. In a Day’s Work exposes the underbelly of economies filled with employers who take advantage of immigrant women’s need to earn a basic living. When these women find the courage to speak up, Yeung reveals, they are too often met by apathetic bosses and underresourced government agencies. But In a Day’s Work also tells a story of resistance, introducing a group of courageous allies who challenge dangerous and discriminatory workplace conditions alongside aggrieved workers—and win. Moving and inspiring, this book will change our understanding of the lives of immigrant women.

KJ

August 31, 2018 in Books, Current Affairs | Permalink | Comments (0)

David Bacon “The Border, The Work & The Fight”, an exhibit of photographs

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David Bacon “The Border, The Work & The Fight” is an exhibit of photographs that show the humanity in our social constructs. It now is at the Union Hall Gallery in Sacramento.  They elucidate the complexities of the border as an area with a vibrant social history and powerful social symbolism, especially the wall that has been built in fits and starts, underlining the separation of our two countries.

Check out David Bacon's work here.

KJ

August 31, 2018 in Current Affairs, Photos | Permalink | Comments (0)

Thursday, August 30, 2018

Cardozo Law Clinical Teaching Fellowship w/Immigration Justice Clinic

CLINICAL IMMIGRATION FELLOWSHIP

The Cardozo School of Law’s Kathryn O. Greenberg Immigration Justice Clinic is interested in hiring an attorney as a Clinical Teaching Fellow to begin in summer 2019. Past fellows have generally had 3-5 years of practice experience prior to coming to the clinic and have generally worked with the clinic for 2-3 years. Fellows’ salaries range between $65,000-$70,000 with full benefits.

The fellow’s core responsibilities would include a combination of the following: • work on deportation defense, or related cases, in the immigration, federal and state courts; • work on impact litigation and advocacy projects with immigrant community-based and national advocacy organizations; • supervision of clinic students on litigation and advocacy projects; • assistance in teaching and administering the clinic seminar; and • primary responsibility for the clinic docket during the summer session.

In addition, the fellow would have significant autonomy to construct her or his own docket of relevant work in accordance with his or her interests and would have the opportunity to take part in the academic life of the law school. This position is ideal for candidates interested in the substantive areas of immigration or criminal law, candidates interesting in transitioning from direct service to impact work, candidates seeking supervisory experience, and/or candidates interested in careers in clinical teaching. Past fellows have gone on to positions as clinical professors, executive directors of non-profits, managing attorneys of direct service immigration practices, and leadership positions in city government.

The Immigration Justice Clinic at Cardozo is an in-house year-long intensive live client clinic in which students represent immigrants in a variety of matters. Individual cases most frequently involve deportation/removal proceedings in the immigration and federal courts. In addition, students and fellows have the opportunity to represent immigrant community-based and national advocacy organizations engaged in impact projects on cutting edge immigration issues. Impact litigation, as well as legislative advocacy, are mainstays of the clinic’s docket. Substantively, the clinic’s docket focuses primarily on immigrants facing deportation because of encounters with the criminal justice system and more generally on immigration enforcement issues. You can learn more about the clinic under the “Learn About Our Work” link at http://www.cardozo.yu.edu/immigrationjusticeclinic.

The clinic director, Peter L. Markowitz, a full-time member of the Cardozo faculty, will be responsible for mentoring, training, and supervising the Clinical Teaching Fellow.

To apply, please send a cover letter, resume and list of at least three references (ideally academic and professional) to: Linda Falk at immigration.justice.cardozo@gmail.com as soon as possible. Please put “IJC Fellowship” in the subject line. Applications will be reviewed on a rolling basis.

-JKoh

August 30, 2018 | Permalink | Comments (0)

From the Bookshelves: Homelands: Four Friends, Two Countries and the Fate of the Great Mexican-American Migration by Alfredo Corchando

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Homelands: Four Friends, Two Countries, and the Fate of the Great Mexican-American Migration by Alfredo Corchado (2018)

From prizewinning journalist and immigration expert Alfredo Corchado comes the sweeping story of the great Mexican migration from the late 1980s to today.

When Alfredo Corchado moved to Philadelphia in 1987, he felt as if he was the only Mexican in the city. But in a restaurant called Tequilas, he connected with two other Mexican men and one Mexican American, all feeling similarly isolated. Over the next three decades, the four friends continued to meet, coming together over their shared Mexican roots and their love of tequila. One was a radical activist, another a restaurant/tequila entrepreneur, the third a lawyer/politician. Alfredo himself was a young reporter for the Wall Street Journal.

Homelands merges the political and the personal, telling the story of the last great Mexican migration through the eyes of four friends at a time when the Mexican population in the United States swelled from 700,000 people during the 1970s to more than 35 million people today. It is the narrative of the United States in a painful economic and political transition.

As we move into a divisive, nativist new era of immigration politics, Homelands is a must-read to understand the past and future of the immigrant story in the United States, and the role of Mexicans in shaping America's history. A deeply moving book full of colorful characters searching for home, it is essential reading.

KJ

August 30, 2018 in Books, Current Affairs | Permalink | Comments (0)

Your Playlist: Springsteen

Bruce Springsteen is a definite go-to for the immprof playlist (here, here), but have you heard his song American Land? It could be the toe-tapping start you need for the semester.

-KitJ

August 30, 2018 in Music | Permalink | Comments (1)

ICE executes federal criminal search warrants in North Texas: 160 arrested on immigration violations while executing criminal warrants

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Immigration & Customs Enforcement (ICE) CE has announced what appears to be the largest workplace raid since the raid at the meat processing plant in Postville, Iowa in 2008.  The Bush administration had employed workplace raids but the Obama administration did not. 

Here is the ICE press release:

As part of an ongoing criminal investigation, special agents with U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) executed criminal search warrants at a North Texas business. HSI also arrested 160 company employees on federal immigration violations who were unlawfully working in the United States at the trailer-manufacturing business.

This ongoing investigation began when HSI received information that the company may have knowingly hired illegal aliens, and that many of the aliens employed at Load Trail were using fraudulent identification documents.

“Businesses that knowingly hire illegal aliens create an unfair advantage over their competing businesses,” said Special Agent in Charge Katrina W. Berger, HSI Dallas, which oversees 128 counties in North Texas, and the state of Oklahoma. “In addition, they take jobs away from U.S. citizens and legal residents, and they create an atmosphere poised for exploiting their illegal workforce.”

All of the immigration status violators arrested Aug. 28 will be interviewed by ICE staff and Department of Health and Human Services’ Division of Immigration Health Services (DIHS) staff to record any medical, sole-caregiver or other humanitarian situations. Based on these interviews, ICE will determine if those arrested remain in custody or are considered for humanitarian release. In all cases, all illegal aliens encountered will be fingerprinted and processed for removal from the United States.

A 24-hour toll-free detainee locator hotline is available for family members of those arrested in this operation to address questions about their detention location and status, and the removal process. This hotline operates in English and Spanish; the phone number is 1-888-351-4024.

This HSI-led enforcement action was coordinated with federal, state and local counterparts including the following agencies: U.S. Attorney’s Office for the Eastern District of Texas; ICE Enforcement and Removal Operations; U.S. Customs and Border Protection’s (CBP) Border Patrol, CBP Air and Marine Operations.

HSI is the federal law enforcement agency responsible for upholding the laws established by the 1986 Immigration Reform and Control Act (IRCA), which requires employers to verify the identity and work eligibility of individuals they hire.

These laws help protect jobs for U.S. citizens and lawful U.S. residents, eliminate unfair competitive advantages for companies that unlawfully hire an illegal workforce, and strengthen public safety and national security.

Unauthorized workers often use stolen identities of legal U.S. workers, which can profoundly damage for years the identity-theft victim’s credit, medical records and other aspects of their everyday life.

HSI’s worksite enforcement investigators help combat worker exploitation, illegal wages, child labor and other illegal practices. Worksite enforcement investigations often involve additional criminal activity, such as alien smuggling, human trafficking, money laundering, document fraud, worker exploitation and/or substandard wage and working conditions.

In addition to worksite enforcement operations like this one, HSI also uses I-9 audits to create a culture of compliance among employers. In July, ICE announced a two-phase operation under this effort.

KJ

 

August 30, 2018 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: A Tax-Credit Approach to Addressing Brain Drain by Matthew J. Lister

A Tax-Credit Approach to Addressing Brain Drain by Matthew J. Lister , St. Louis University Law Journal

Abstract

This paper proposes a novel use of tax policy to address one of the most pressing issues arising from economic globalization and international migration, that of “brain drain” – in particular, the migration of certain skilled and highly trained or educated professionals from less and least developed countries to wealthy “western” countries. This problem is perhaps most pressing in relation to doctors, nurses, and other medical professionals, but exists also for teachers, lawyers, economists, engineers, and other highly skilled or trained professionals. While there have been other proposals in the past to use tax policy to address brain drain (most famously versions of the so-called “Bhagwati Tax”, a form of exit tax), in this paper I provide an account of and justification for using tax credits, modeled loosely on the foreign tax credits U.S. citizens receive in certain situations for taxes paid in other countries. My proposal avoids several of the pitfalls of other methods of using tax policy to ameliorate the harms of brain drain, as it does not subject people from the developing world to potentially onerous double taxation, and does not depend on sophisticated tax collection capabilities within developing countries, capabilities which are often lacking. Additionally, my proposal also leads to fewer morally problematic restrictions on the liberty of citizens of less and least developed countries than do non-taxed based alternative proposals, such as temporary bans on migration. While the proposal cannot hope to completely solve the problems that arise in relation to brain drain – no approach can do this – it does provide a straightforward way to ameliorate the problems that arise from it without placing significant financial or liberty burdens on already less advantaged people from the developing world.

KJ

August 30, 2018 in Current Affairs | Permalink | Comments (0)

Wednesday, August 29, 2018

Immigrant Toddler Dies Shortly After Release from Detention

In yet another tragic and avoidable development in the asylum and detention context, a young toddler who was being detained in Dilley, TX died after contracting a respiratory infection in detention and subsequently being released from custody. VICE News first covered the story. The law firm Arnold & Porter has since filed a lawsuit against the City of Eloy, AZ (which, interestingly, serves as the official contractor for the Dilley jail, according to NPR); the Notice of Claim is available here.

-JKoh

August 29, 2018 | Permalink | Comments (0)

U.S. is denying passports to Americans along the border, throwing their citizenship into question

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Here is a breaking story from the Washington Post.  Juan has an official American birth certificate showing that he was delivered by a midwife in Brownsville, Texas.  He was a private in the Army, a cadet in the Border Patrol, and now is a state prison guard. But when Juan applied to renew his U.S. passport, the State Department responded that it didn’t believe he was a U.S. citizen. Juan is one of a growing number of people whose official birth records show they were born in the United States but who are now being denied passports. "The Trump administration is accusing hundreds, and possibly thousands, of Hispanics along the border of using fraudulent birth certificates since they were babies, and it is undertaking a widespread crackdown on their citizenship."

In a statement, the State Department said that it “has not changed policy or practice regarding the adjudication of passport applications,” adding that “the U.S.-Mexico border region happens to be an area of the country where there has been a significant incidence of citizenship fraud.” But cases identified by The Washington Post and interviews with immigration attorneys suggest a dramatic shift in both passport issuance and immigration enforcement.

KJ

August 29, 2018 in Current Affairs | Permalink | Comments (0)

Stanford Law Review Online Symposium: Call for Abstracts "Immigration Out of the Headlines"

Stanford

Stanford Law Review Online Symposium, Call for Abstracts: "Immigration out of the Headlines"

Stanford Law Review Online is now accepting abstracts for proposed essays for an online symposium dedicated to immigration law, which will be published in 2019.

From the travel ban to the separation of families at the border, immigration news stories have dominated media headlines. Stanford Law Review Online seeks to publish pioneering, thoughtful, and nuanced legal scholarship that goes beyond the headlines and tackles important but overlooked immigration law issues. Essays might analyze overlooked questions relating to discretion in administrative agency decision-making, the intersection of immigration and the criminal justice system, the detention and bond system, the role of federal courts, or other topics.

How to submit: Interested authors should submit an abstract of up to 500 words and a CV to online@stanfordlawreview.org with the subject line “Immigration Law Online Symposium” by September 30, 2018. Selected authors’ completed papers of 3,000 to 5,000 words (including footnotes) will be due to Stanford Law Review Online by December 14, 2018. Any questions should be sent to Andra Lim, Online Editor-in-Chief, at online@stanfordlawreview.org.

-JKoh

August 29, 2018 | Permalink | Comments (0)

Immigration Article of the Day: The Dreamer Divide: Aspiring for a More Inclusive Immigrants’ Rights Movement by Adrienne Pon

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The Dreamer Divide: Aspiring for a More Inclusive Immigrants’ Rights Movement by Adrienne Pon, Stanford Journal of Civil Rights and Civil Liberties, 2018 12 Pages Posted: 21 Aug 2018

Abstract

President Trump reignited the potential for immigration reform legislation when he rescinded Deferred Action for Children Arrivals (DACA), a program that protected approximately 800,000 young undocumented immigrants from deportation. As immigrants’ rights advocates push Congress to create a replacement for DACA, a growing number of undocumented activists oppose these advocates’ use of the term “Dreamer” — a shorthand reference to undocumented youth since the failed attempts to pass the Development, Relief, and Education for Alien Minors (DREAM) Act. Many undocumented activists who previously identified as Dreamers now argue that the term perpetuates a problematic narrative of exceptional, high-achieving youth that might be used to the detriment of relatively less sympathetic immigrants — including undocumented adults, high school dropouts, and those with criminal records. Using this emerging “Dreamer” divide as the focal point for discussion, this article argues that, to better address society’s systemic discrimination against immigrants, advocates should think critically about whether the strategies they use might advance the interests of some immigrants at the expense of other immigrants. This essay first recounts historic examples of social movements that made strategic choices to exclude certain disadvantaged groups from the reach of their advocacy, leaving behind or actively harming those groups’ interests. Second, this essay discusses the debate over the Dreamer narrative in the current push for immigration reform. And third, this essay draws on various lines of scholarship to propose three strategies for how advocates can cultivate a more inclusive immigrants’ rights movement. Ultimately, as advocates work tirelessly to counter the current surge of hate towards immigrant communities, it is important to continue to keep in mind the longer-term goal of a more sensible and humane immigration system overall.

KJ

August 29, 2018 in Current Affairs | Permalink | Comments (0)

Teresa Romero, a Mexican immigrant, will be United Farm Workers' first female president

Teresa Romero has been elected president of United Farm Workers (UFW) union, replacing Arturo Rodriguez when he steps down Dec. 20, 2018.  Click here for more on Romero.  The UFW press release is here.

Romero will take over the job when the current president, Arturo Rodríguez, steps down in December. She becomes only the third person to hold the job. Before Rodríguez, the late civil rights leader César Chávez served as the UFW president.  The UFW said Romero is the first Latina and first immigrant woman to head a national union in the United States.

Originally from Mexico, Romero came to the U.S. on a temporary visa and stayed. The 1986 immigration bill signed by President Ronald Reagan allowed her to become a legal resident and eventually a U.S. citizen.

KJ

August 29, 2018 in Current Affairs | Permalink | Comments (0)

Report: A National Shame: The Trump Administration’s Separation and Detention of Migrant Families by Adam Isacson and Maureen Meyer and Adeline Hite

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Despite the massive public outrage sparked by the Trump administration’s “zero tolerance” policy, which caused over 3,000 children to be separated from their asylum-seeking parents, no government officials have yet been held accountable. Instead, the Trump administration has doubled down on its assault on migrants and refugees. As detailed in a new report by leading research and advocacy group the Washington Office on Latin America (WOLA), the Trump administration seeks to detain asylum-seeking children with their parents for months or years.
The report, titled A National Shame: The Trump Administration’s Separation and Detention of Migrant Families, is the final installment in a three-part series of reports authored by WOLA staff Adam Isacson, Maureen Meyer, and Adeline Hite examining the impact of “zero tolerance.” WOLA’s review of the Trump administration’s separation and detention of migrant families under “zero tolerance” includes the following findings:
  • As of early August, some 900 children remain separated from their families. This includes 386 children over the age of 5 whose parents were now outside the United States after being deported without them.
  • Incredibly, U.S. authorities failed to keep the most basic of records establishing the link between parents and children at the moment it separated them. Parents, and the agencies holding the parents, were given no information about their children’s whereabouts, as the Office of Refugee Resettlement moved the children to shelters and homes all around the country. Because no database recording these parent-child relationships existed, the path to the reunification for hundreds of families remains unclear.
  • While the Trump administration has asserted that it intends to lock up all asylum-seeking families while their asylum claims are adjudicated—perhaps even at tent cities on military bases—there are alternatives to mass detention which are more humane, effective, and less expensive. The U.S. government can avoid the unnecessary, prolonged detention of migrant families, which is never in the best interest of children, by using other measures that ensure that asylum-seeking families show up for their court appearances.

    KJ

August 29, 2018 in Current Affairs | Permalink | Comments (0)

Tuesday, August 28, 2018

Latino Ex-Employee Files Discrimination Claim Against Federation for American Immigration Reform

Scott Bixby at the Daily Beast reports on a claim of discrimination by an employee of a well-known immigration restriction group:

"When Joe Gomez joined the Federation for American Immigration Reform (FAIR) as its sole Latino employee, he told friends that the anti-immigration organization’s reputation as a hate group was unfounded. But after enduring months of racist slurs, mockery of his medical condition and racialized abuse from FAIR’s top management and executives, Gomez said, he filed a complaint with Washington D.C.’s Office of Human Rights. A copy of the complaint was provided to The Daily Beast."

Gomez no longer works for FAIR. He reportedly plans to donate the lion’s share of any financial settlement reached with FAIR to a charity supporting migrants. “After working at FAIR, I think I owe it to them,” Gomez said.

KJ

August 28, 2018 in Current Affairs, Film & Television | Permalink | Comments (0)

Monday, August 27, 2018

Geoffrey A. Hoffman: Pereira v. Sessions and the Right to Seek Voluntary Departure: Another Reason for the Wide Applicability of Pereira without the Need to Decide the Subject-Matter Jurisdiction Issue

  

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Pereira v. Sessions and the Right to Seek Voluntary Departure:  Another Reason for the Wide Applicability of Pereira without the Need to Decide the Subject-Matter Jurisdiction Issue

Geoffrey A. Hoffman [*]

Section 240B of the Immigration and Nationality Act (INA) provides for the right of respondents in removal proceedings to seek voluntary departure “at the conclusion” of removal proceedings.  This is called post-hearing or at-the-conclusion voluntary departure.  The respondent is required to show several things. Among the several requirements for this type of relief is that the respondent show that he or she “has been physically present in the United States for a period of at least one year immediately preceding the date the notice to appear was served under section 239(a).” (emphasis added). As we can all agree, Pereira v. Sessions held that a deficient NTA (without the time and date) as required by the statute was insufficient to trigger the stop-time rule for purposes of cancellation of removal under INA 240A(b).  Given this clear and unequivocal holding, there can be no question that the holding must be applied to any “stop-time” type restrictions against eligibility for relief as enumerated in the INA. It cannot just be applied to stop-time issues related just to cancellation of removal under INA 240A.

Given this important premise, anyone who was handed an insufficient NTA and eventually subjected to “removal proceedings” would have been foreclosed from various forms of relief, not just cancellation of removal for non-lawful permanent residents (LPRs). In Pereira’s case the relevant section was INA 240A(b) that related to the 10-year period for cancellation. But, if the person were a lawful permanent resident, then he or she could have been subject to another potential stop-time issue with respect to INA 240A(a) for LPRs and the NTA could have cut off the 7 year period in any status as required for eligibility for LPR cancellation . (Note, the 5 year rule in LPR status is by statute not subject to stop-time rule.)

Similarly, everyone who was issued a defective NTA would have been pretermitted under Pereira from applying for “at the conclusion” voluntary departure since they would have been unable to show that they were physically present here in the US for at least one year immediately preceding the date “the notice to appear was served under section 239(a).”  In other words, the triggering event which would have enabled the respondent to show that he or she was present in the U.S. for the requisite period of time could not be said to have happened under Pereira. There is no need to get into whether “jurisdiction” vested with the immigration court or not. Rather, as Pereira clearly held there was never a valid NTA served under 239(a) and therefore all those who sought voluntary departure could not have been eligible to apply for such relief. If they were ineligible to apply for and prove their 1-year compliance with the statute as required for voluntary departure then their proceedings must be reopened at the very least to allow them to seek any and all forms of other relief to which they could have applied with a proper NTA.

The issue of jurisdiction over immigration court proceedings is one which is being fiercely debated at the moment. Several immigration court judges around the country have held no jurisdiction exists in the wake of Pereira and therefore these cases must be terminated. The point I want to emphasize is that, irrespective of the jurisdictional issue, which has yet to be finally decided, if there was no valid NTA under Pereira then a respondent’s grant of post-hearing voluntary departure also would not have been valid. It follows, therefore, that in any case in which voluntary departure was granted at the conclusion of proceedings then that order of voluntary departure was clearly without authority and would have to now be rescinded. Because this type of voluntary departure does not preclude any other relief from being sought, those respondents must now be allowed to seek any other relief in their reopened proceedings.  To conclude otherwise would be to perpetuate the incorrect and invalid order of voluntary departure which was granted in error.  

This analysis creates at least four types of procedural scenarios which are outlined as follows.  

Cases that have not yet been finally decided. In these cases, the government will need to issue a valid NTA and the 1-year period can be calculated. The government’s corrected, re-issued NTA will fix the problem (or after termination of proceedings and a re-issued NTA provided the defective NTA created a jurisdictional problem which some immigration courts have held). Another possibility is that the government could just stipulate that the 1-year period has been satisfied. However, there is a school of thought that says (and the government has often argued) that it cannot stipulate to a violation of the statute. If so, then it is correct that Pereira requires the government to issue a corrected NTA which complies with the requirements of the INA.

 

Cases that recently completed and where post-hearing voluntary departure was granted. If the voluntary departure was granted over the government's objection and the government now wants to go back and contest the alien's eligibility for voluntary departure then the government may want to reopen proceedings. At this point, however, DHS cannot benefit from its own mistake in issuing a defective NTA. In such a case, they would need to fix the NTA upon reopening. We are back in the first scenario above, where there is a corrected NTA.  At that point, the government could still object on some other ground.  Similarly, the respondent should be allowed to pursue any other grounds of relief in the reopened proceedings because at-the-conclusion voluntary departure does not prejudice a party from seeking any other relief.

 

Cases that recently completed where post-hearing voluntary departure was denied. If voluntary departure was denied by the immigration court based on the one-year issue then the respondent should have the ability to also reopen proceedings in light of Pereira. The government's argument about the 1-year was necessarily flawed.  The government cannot rely on a defective NTA. Rather, the NTA must be corrected and the case reopened so that things are put back into the first scenario. At that point, the government could still object on some other ground such as good moral character or some other possible bar to voluntary departure.  Similarly, in those reopened proceedings a respondent should be allowed to pursue any other grounds of relief in addition to voluntary departure, where eligibility can be established.

 

The most difficult scenario will be where a respondent wants to bring a motion to reopen but it is now a long time since the issuance of the order of voluntary departure.  As we know, cases can be reopened outside the normal 90-day period but only for limited reasons.  Some courts have allowed cases to be reopened sometimes many years after a final order of removal has issued based on equitable tolling.  In Lugo-Resendez v. Lynch, 831 F.3d 337 (5th Cir. 2016), the Fifth Circuit, for example, applied equitable tolling to when a respondent reasonably understood or “should have known” that he had a new argument which previously had been foreclosed. In the case of Lugo-Resendez, the respondent explained he did not become aware of the change in law until he "heard about a man that was a lawful permanent residen[t] who had a drug conviction, but ... was allowed to apply for cancellation of removal because a new law made it possible even though he had already been deported." The same reasoning should now apply to those who wish to reopen voluntary departure orders since they were unaware that the order of voluntary departure was invalid. DHS can reopen cases as well, if it wishes, but cannot benefit from its mistake. Instead it would have to re-issue a valid NTA, now, and then respondents in the reopened proceedings would be able to make any new arguments for relief which are now available.

In Dada v. Mukasey, 554 U.S. 1 (2008), the Supreme Court ruled that a respondent must be permitted an opportunity “to withdraw” his request for voluntary departure, provided that the request is made before expiration of the departure period.  It is worth noting however that where the initial voluntary departure order, in light of Pereira, was invalid from the start, then Dada’s holding should not be construed to limit the rights of respondents to reopen their voluntary departure orders if outside the expiration of the departure period. It remains to be seen if Dada will be construed to limit those who wish to reopen voluntary departure orders, under Pereira, but I would argue that Dada only applies to “valid” orders of voluntary departure and not to those issued in error due to a defective NTA.

In the wake of Pereira, an important practice advisory from NPILG suggested for those past the normal filing deadlines (i.e., 90 days for a motion to reopen and 30 days for reconsideration), they should consider filing a motion to reconsider within 30 days of the Pereira decision itself or a motion to reopen within 90 days of Pereira and argue equitable tolling in light of the change of law. The latter date for motions to reopen is coming up soon, i.e., September 19, 2018.  Those who were issued defective NTAs  under Pereira, as discussed above, should consider either a motion to terminate or a motion to reopen, depending on the procedural posture of the case, as soon as possible.

[*] Geoffrey A. Hoffman is the director of the immigration clinic at the University of Houston Law Center’s Immigration Clinic and a clinical associate professor of law. He would like to thank Professor Lonny Hoffman and also Clinical Lecturer Rosemary Vega at UH for discussing these ideas. Rosemary Vega reminded me of the importance of voluntary departure as it relates to Pereira. I also would like to highlight the excellent advisories on Pereira v. Sessions from AIC / CLINIC and NIPNLG,

KJ

August 27, 2018 in Current Affairs | Permalink | Comments (0)

U.N. report calls for Myanmar generals to be investigated, prosecuted for genocide and war crimes

Breaking news:  Shibani Mahtani reports that a United Nations report released today asserted that Myanmar’s military leaders, including the commander in chief, must be investigated and prosecuted for genocide, crimes against humanity and war crimes over their actions in ethnic and religious minority states — the strongest international condemnation yet of the military’s actions following a crackdown on Rohingya Muslims last August.

The report, the culmination of over a year’s worth of interviews, research and analysis by a U.N.-mandated fact-finding mission, challenges the Myanmar military’s decades-long assertions, both in Rakhine state and elsewhere, that it is merely responding to security challenges posed to the state in the operations.

The fact-finding mission went beyond the military’s actions in Rakhine and investigated the Myanmar military’s conduct more broadly since 2011. It found “patterns of gross human rights violations and abuses committed in Kachin, Rakhine and Shan state” that “undoubtedly amount to the gravest crimes under international law,” a statement announcing the report’s findings said.

The U.N.’s fact-finding mission, which was established by the U.N. Human Rights Council, recommended that the Security Council refer the situation in Myanmar to the International Criminal Court, or create an ad hoc international criminal tribunal, and impose an arms embargo on Myanmar.

Her are the "Main Conclusions and Recommendations" of the report:

  1. The gross human rights violations and abuses committed in Kachin, Rakhine and Shan States are shocking for their horrifying nature and ubiquity. Many of these violations undoubtedly amount to the gravest crimes under international law. They are also shocking because they stem from deep fractures in society and structural problems that have been apparent and unaddressed for decades. They are shocking for the level of denial, normalcy and impunity that is attached to them. The Mission concludes that these abusive patterns are reflective of the situation in Myanmar as a whole.
  2. Myanmar has a heavy responsibility to remedy the situation as a matter of the utmost urgency, or risk destroying its democratic reform process. The international community also bears responsibility and must take a united stand to both condemn the violations and assist Myanmar in addressing the root causes of its recurrent problems. This begins by ensuring that the perpetrators of crimes are held to account, and by giving hope to victims of a future without the fear and insecurity that have characterized their existence.
  3. The steps required to address the human rights crises in Myanmar are well known. For nearly three decades, five consecutive Special Rapporteurs on the situation of human rights in Myanmar have presented annual reports to the General Assembly and the Human Rights Council, with detailed recommendations to all stakeholders. Similarly, the United Nations High Commissioner for Human Rights has formulated concrete recommendations, as have many international and national civil society organizations. The Advisory Commission on Rakhine State also presented a detailed report. These recommendations should be implemented immediately.
  4. The Mission’s detailed report provides comprehensive recommendations. Here, it draws particular attention to the following priority areas for action by the international community:

(a)      The international community, through the United Nations, should use all diplomatic, humanitarian and other peaceful means to assist Myanmar in meeting its responsibility to protect its people from genocide, crimes against humanity and war crimes. It should take collective action in accordance with the United Nations Charter, as necessary;

(b)      The Security Council should ensure accountability for crimes under international law committed in Myanmar, preferably by referring the situation to the International Criminal Court or alternatively by creating an ad hoc international criminal tribunal. Further, the Security Council should adopt targeted individual sanctions, including travel bans and asset freezes, against those who appear most responsible for serious crimes under international law. It should also impose an arms embargo on Myanmar;

(c)      Until the Security Council acts, the General Assembly, or alternatively the Human Rights Council, should create an independent, impartial mechanism to collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights violations and abuses and to prepare files to facilitate and expedite fair and independent criminal proceedings in national, regional or international courts or tribunals;

(d)      The Human Rights Council should continue to support the mandates of the Special Rapporteur on Myanmar and the High Commissioner for Human Rights, and ensure they have adequate resources to maintain a strong focus on the human rights crisis in Myanmar;

(e)      The Human Rights Council should specifically request OHCHR to focus on ensuring accountability for human rights violations and abuses in Myanmar, including by enhanced monitoring, documentation, analysis and public reporting on the human rights situation; raising awareness among civil society and other actors engaged in documenting human rights violations about relevant international standards; working with victim communities to raise awareness about justice options; and supporting comprehensive rule of law and security sector reform in Myanmar in line with international human rights norms and standards. Appropriate resources must be allocated;

(f)       The Human Rights Council should establish a second fact-finding mission for a limited period to build on the work undertaken by the Mission, until either one of the mechanisms outlined in (b) or (c) are operational, or the reinforced work of OHCHR set out in (e) is in place;

(g)      The United Nations should urgently adopt a common strategy to ensure that all engagement with Myanmar takes into account, and addresses, human rights concerns, in line with the Human Rights Up Front Action Plan. This should guide all UN engagement in Myanmar, particularly in relation to Rakhine State, and include policies and public advocacy stances. All United Nations support to Myanmar authorities should undergo a full Human Rights Due Diligence analysis;

(h)      As a matter of urgency, there must be a comprehensive, independent inquiry into the United Nation’s involvement in Myanmar since 2011, with a view to establishing whether everything possible to prevent or mitigate the unfolding crises was done; identifying lessons learned and good practice; making recommendations as appropriate, including on accountability; and enabling more effective work in future;

(i)       The United Nations and international community must ensure that the repatriation of refugees and return of internally displaced persons only occurs when safe, voluntary and dignified, with explicit human rights protections in place, including citizenship. In the current circumstances, returns are not possible;

(j)       All Member States should ensure that engagement with Myanmar, and support for aid, development and reform projects, take into account and address human rights concerns, and explicitly conform to the principles of non-discrimination and equality. They should ensure that humanitarian organizations working on Myanmar are appropriately funded. States should cease operational support to the Tatmadaw and other security forces until there is (1) demonstrable commitment to genuine reform, (2) international assistance in implementing reform and (3) acceptance of and cooperation with international mechanisms to hold those responsible accountable for crimes under international law;

(k)      Regardless of the imposition of an arms embargo by the Security Council, States should not authorize the transfer of arms to Myanmar, considering the overriding risk that they would be used to undermine peace and security and in the commission of serious crimes under international law;

(l)       Relevant regional organizations, including the European Union and ASEAN, should develop strategies to ensure accountability for perpetrators of crimes under international law in Myanmar, including through sustained engagement with Myanmar and support for an international justice mechanism;

(m)     Member States should exercise jurisdiction to investigate and prosecute alleged perpetrators of serious crimes under international law committed in Myanmar;

(n)      The United Nations should establish a trust fund for victim support, through which victims can receive psychosocial support, legal aid, livelihood support, and others means of assistance. All trust fund projects should be designed in consultations with victims.

 

KJ

August 27, 2018 in Current Affairs | Permalink | Comments (0)

Sunday, August 26, 2018

Judge Allows Lawsuit Challenging Border Patrol Practice of Turning Away Asylum Seekers to Proceed

On Friday, August 24, a federal judge allowed the lawsuit Al Otro Lado v. Kelly -- which challenges Customs and Border Protection (CBP)'s practice of routinely failing to permit asylum seekers at the border to actually request asylum through a variety of allegedly unlawful actions -- to proceed.   The plaintiff in the lawsuit is the nonprofit Al Otro Lado, co-founded by attorney Nora Philips (who was featured on the blog for her work with the organization in this 2015 post).

Al Otro Lado v. Kelly highlights one of the biggest shortcomings of the expedited removal process, which is that although statute and regulation require that individuals apprehended at or near the border be asked if they are afraid to return to their countries and referred for a credible fear interview if they answer affirmatively, reports have suggested that a fair inquiry into and opportunity to articulate that fear often does not occur. It will be interesting to see how this lawsuit plays out, particularly in light of the Trump Administration's immigration and border enforcement priorities. 

The Center for Constitutional Rights' Press Release is below: 

"August 24, 2018, San Diego – A federal judge ruled this week that a lawsuit challenging U.S. Customs and Border Protection’s (CBP) practice of turning away asylum seekers at the U.S.-Mexico border can proceed. The lawsuit was brought by the Los Angeles and Tijuana-based organization Al Otro Lado, Inc., as well as individual asylum seekers who are collectively represented by the American Immigration Council, the Center for Constitutional Rights, the Southern Poverty Law Center and an international law firm. The complaint challenges CBP’s systematic denial of the right to access the asylum process, forcing individuals fleeing persecution to return to countries where they face grave danger and the risk of death. CBP had asked the court to dismiss the case altogether, which the judge denied in this ruling.

“Thousands of refugees fleeing for their lives have been unlawfully denied the right to seek protection in the United States. We are heartened that the Court recognized the U.S. government’s legal obligations to accept asylum seekers at our southern border,” said Erika Pinheiro, Litigation and Policy Director at Al Otro Lado.

The judge affirmed the plaintiffs’ claim that high-level CBP officials have the obligation to direct their agents at ports of entry across the southern border to process individuals who present themselves for asylum. The judge further held that those asylum seekers can proceed with legal action against high-level officials for derogation of their responsibilities under domestic and international law. 

“The ruling puts the Trump Administration on notice that the United States’ brazen dereliction of its domestic and international humanitarian obligations to hear asylum claims will not be tolerated,” said Angelo Guisado, staff attorney at the Center for Constitutional Rights. “Now, our plaintiffs, who bravely took up this legal challenge on behalf of thousands whom CBP also unlawfully turned away at the border, will have the opportunity to be heard in court.”

The lawsuit documents the experiences of hundreds of asylum seekers turned away at ports of entry all along the U.S.-Mexico border. To carry out its turn-away practice, CBP employs a variety of tactics—including misinformation, threats and intimidation, threats of forced family separation, verbal and physical abuse, and coercion. Many were unlawfully turned away multiple times, despite having expressed fear of returning to their home countries in the face of humanitarian crises in Mexico, Haiti, and certain Central American countries.

The judge affirmed that the asylum seekers could proceed with seeking relief in their individual cases, and also suggested that they could represent a class of other asylum seekers, potentially thousands, “who have allegedly experienced the same failures to act” by CBP.

The judge also affirmed that Al Otro Lado as an organization has standing to proceed with their claims against CBP, observing that the organization demonstrated sufficiently that it had shifted significant resources away from its non-refugee programs to provide emergency support for the burgeoning migration crisis in Tijuana, “including individual screenings and in-depth trainings to educate asylum seekers about CBP’s alleged conduct of denying the most basic form of access to the asylum process.”

According to Melissa Crow, senior supervising attorney for the Southern Poverty Law Center and co-counsel for plaintiffs, “The court’s decision represents an important first step toward holding U.S. Customs and Border Protection accountable for flagrant violations of U.S. law that have deprived countless asylum seekers of the right to seek protection in our country. The government’s outrageous practice of turning away vulnerable individuals at the border must end.”"

-JKoh

August 26, 2018 | Permalink | Comments (0)