Sunday, April 23, 2017

Advocates Ask Trump Administration to Extend, Not End, Haitian TPS

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Haiti after 2008 hurricane

America's Voice lays out the negative response to the possibility that the Trump administration will eliminate Temporary Protected Status (TPS) for Haitians.  The threat has provoked many responses, including from the editorial board of the Washington Post.

According to USA Today, USCIS acting director James McCament said in a letter last week that conditions have improved enough in Haiti after a series of natural disasters that TPS can be ended for Haitians living in America. The ending of TPS would mean the ending of their legal status here (for those who are here under TPS), opening them up to arrest, detention, and deportation. It would also mean family separation for those who have given birth to US-citizen children here over the last seven years, who would have to choose between taking their children to a dangerous country, or not being together at all.

Haitian TPS started in 2010, after a devastating earthquake in Haiti which displaced hundreds of thousands. TPS has been extended several times, after the country was struck by Hurricane Matthew, which killed 1,000 people. Cholera has also killed 9,000 people and continues to plague the country. The latest renewal of TPS for Haitians is set to expire July 22, and the final decision on whether to renew it rests with DHS Secretary John Kelly.

McCament has said that TPS should not be extended — which is a sharp departure from USCIS’ report from just four months ago, when Obama was still in office. That report said that:

Many of the conditions prompting the original January 2010 … designation persist, including a housing shortage, a cholera epidemic and limited access to medical care, damage to the economy … political instability, security risks, food insecurity, and environmental risks (as exemplified by the impact of Hurricane Matthew in October 2016).

Haitian TPS has broad bipartisan support, with members of Congress from Marco Rubio to Chuck Schumer supporting it. As Sen. Bill Nelson (D-FL) said this week:

Haiti is one of the poorest countries in the world and right now it’s unable to support the roughly 50,000 Haitians that are currently receiving protected status here in the U.S. The U.S. should be focused on helping Haiti recover, not sending people back to a country that can’t support them.

In agreement was Esther Olavarria, a senior counselor at DHS under the Obama Administration, who said that letting TPS expire, and forcibly deporting Haitians back now “would be a travesty.”

Benjamin Johnson, Executive Director of the American Immigration Lawyers Association noted:
 
"The provision of a safe haven to those who would face dire conditions if forced to return to their home countries is fundamental to U.S. humanitarian policy. The bottom line is that conditions in Haiti have not improved to an extent that would remotely justify the end of TPS. The elimination of TPS for Haiti will not only create immense hardships for close to 47,000 Haitian individuals who have lived in the United States under the protection of this program for more than 7 years, it will also impact their children, many of whom are U.S. citizens, and their families back home, who rely on remittances for their basic needs. There is bipartisan support for extending Haiti TPS and it is not too late for DHS to act. Extending TPS for Haiti is simply the right thing to do."
 
The Sun-Sentinel this week also published an editorial saying that it would be “simple” to let Haitian TPS holders stay.
 
Finally, the Immigration Legal Resource Center has pointed out that TPS for more than 180,000 Salvadorans and 70,000 Hondurans is also set to expire within the next year and a half. A new report from them says that deporting all Haitians, Salvadorans, and Hondurans with TPS would cost taxpayers $3.1 billion and lead to a $45.2 billion reduction in GDP over a decade.
KJ

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

President Trump: 'Dreamers' should 'rest easy'

Trump

In an interview with the Associated Press, President Donald Trump said that recipients of Deferred Action for Childhood Arrivals — often referred to as "dreamers" — should "rest easy" about his immigration policies.  The President said that the administration is "not after the dreamers, we are after the criminals."

Hard-liners on immigration, such as Breitbart, have been critical and claim that President Trump has flip-flopped on his campaign promise to dismantle DACA.

KJ

April 23, 2017 in Current Affairs | Permalink | Comments (1)

California Senate Leader: Trump Law Enforcement Policy Based on "principles of white supremacy "

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As reported by the Los Angeles Times, “It has become abundantly clear that Atty. Gen. [Jeff] Sessions and the Trump administration are basing their law enforcement policies on principles of white supremacy — not American values,” Senate leader Kevin de León (D-Los Angeles) said in a statement. “Their constant and systematic targeting of diverse cities and states goes beyond constitutional norms and will be challenged at every level.”

de León was responding to the Justice Department's latest threat to defund "sanctuary cities." 

In the last several years, Latinos have constituted over 95% of the noncitizens removed from the United States, which is significantly higher than their percentage of the immigrant population.  Click here for an explanation. 

KJ

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

Saturday, April 22, 2017

Syrian Child Describes Refugee Camp

More here from the BBC.

-KitJ

April 22, 2017 in Current Affairs, Teaching Resources | Permalink | Comments (0)

US Department of Justice Threatens So-Called Sanctuary Jurisdictions

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Yesterday, the U.S. Department of Justice issued this Press Release

"Today, the Department of Justice sent the attached letters to nine jurisdictions which were identified in a May 2016 report by the Department of Justice’s Inspector General as having laws that potentially violate 8 U.S.C. § 1373.

Additionally, many of these jurisdictions are also crumbling under the weight of illegal immigration and violent crime. The number of murders in Chicago has skyrocketed, rising more than 50 percent from the 2015 levels. New York City continues to see gang murder after gang murder, the predictable consequence of the city's “soft on crime” stance. And just several weeks ago in California’s Bay Area, after a raid captured 11 MS-13 members on charges including murder, extortion and drug trafficking, city officials seemed more concerned with reassuring illegal immigrants that the raid was unrelated to immigration than with warning other MS-13 members that they were next.

The letters remind the recipient jurisdictions that, as a condition for receiving certain financial year 2016 funding from the Department of Justice, each of these jurisdictions agreed to provide documentation and an opinion from legal counsel validating that they are in compliance with Section 1373. The Department of Justice expects each of these jurisdictions to comply with this grant condition and to submit all documentation to the Office of Justice Programs by June 30, 2017, the deadline imposed by the grant agreement."

Here is a New York Times story on the letters.     Access the letters, which are brief, at this link.

Last month, Attorney General Jeff Sessions warned that recipients of federal law enforcement grants were required to comply with a law that bars the local authorities from forcing officials to withhold information from federal immigration authorities about people’s immigration status.

The recipients of the letters were warned that as a condition of receiving 2016 grants, they must certify by June 30 that they were in compliance with the law. 

The dollar amounts for the grants in question are relatively small compared with the overall budgets of governments that received the letters. For example, according to the Justice Department, the City of New York received a $4.3 million grant in 2016.  Other places sent a letter included the State of California, which received $10.4 million, divvied up among 128 cities and counties; Chicago and its county, Cook, shared a $2.3 million grant; New Orleans, $265,832; Las Vegas’s Clark County, $11,537; Miami-Dade County, $481,347; Milwaukee County, $937,932; and Philadelphia, $1.7 million. Each letter was signed by Alan R. Hanson, the acting director of the Office of Justice Programs, which administers the Byrne law enforcement grant program.

KJ

April 22, 2017 in Current Affairs | Permalink | Comments (0)

Immigrtaion Article of the Day: The Impact of Externalization of Migration Controls on the Rights of Asylum Seekers and Other Migrants by Bill Frelick, Ian M. Kysel, Jennifer Podkul

The Impact of Externalization of Migration Controls on the Rights of Asylum Seekers and Other Migrants by Bill Frelick (Human Rights Watch), Ian M. Kysel (ACLU of Southern California), Jennifer Podkul (Kids in Need of Defense (KIND))

Journal of Migration and Human Security, Volume 4, Number 4 (2016)

Abstract

Wars, conflict, and persecution have forced more people to flee their homes and seek refuge and safety elsewhere than at any time since the end of World War II. As displaced people and other migrants increasingly move out of the conflict-ridden and less developed regions of their displacement and into relatively rich and stable regions of the world, the countries of destination are increasingly working to contain and even stem the migration flow before it reaches their shores. Perversely, countries that have developed generally rights-sensitive standards and procedures for assessing protection claims of asylum seekers within their jurisdictions have simultaneously established barriers that prevent migrants, including asylum seekers, from setting foot on their territories or otherwise triggering protection obligations. Consequently, those who would otherwise have been able to avail themselves of asylum procedures, social support, and decent reception conditions are often relegated to countries of first arrival or transit that have comparatively less capacity to ensure protection of human rights in accordance with international standards.

This paper seeks to develop a working definition of the externalization of migration controls and how such externalization of the border implicates the human rights of migrants, and asylum seekers in particular. Although the majority of those migrants seeking legal protections stay in countries neighboring their own, hundreds of thousands continue their journeys in search of protection and stability in more distant states, including in the European Union, the United States, and Australia. In response to the significant increase in asylum seekers arriving at their borders, all three entities have significantly increased deterrence measures with the hopes of keeping new arrivals from entering. This paper will thus highlight a number of the most troubling externalization strategies used by the European Union, the United States, and Australia. Finally, because rights-threatening externalization law, policies, and practices implicate the international legal responsibility of the destination states pursuing them, the paper will conclude by presenting recommendations that could strengthen protection of human rights in the context of state actions seeking to manage migration.

KJ

April 22, 2017 in Current Affairs | Permalink | Comments (0)

Friday, April 21, 2017

These Swimmers Are Challenging Trump’s Immigration Platform on Cinco de Mayo

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Outside reports on an interesting form of immigration consciousness-raising.  While others are celebrating Cinco de Mayo with revelry, a group of swimmers will set out from a beach in San Diego and swim south, landing in Tijuana, in defiance of President Trump’s restrictions and rhetoric on immigration

In 2014, Kim Chambers became just the sixth person in history (of six total) to achieve the Ocean’s Seven, an aquatic version of the Seven Summits that involves open-water swims across the English Channel, the Catalina Channel (California), the Kaiwi Channel (between Oahu and Molokai), and the North Channel (between Ireland and England), among others. She’s also the only woman ever to swim 30 miles from the Golden Gate Bridge to the jigsaw of rock in the Pacific that is the Farallon Islands, a feat she checked off in 2015.   Her latest mission: a 10K open water swim across the U.S.-Mexico border.

On the morning of Cinco de Mayo, Chambers and 11 other seasoned marathon swimmers from five countries will launch from  Imperial Beach, the southernmost beach in California, just a few miles from the U.S./Mexico border. They’ll swim approximately one kilometer south along the coast, past the border, and land at Playas de Tijuana, roughly two-thirds of a mile into Mexico. On the U.S. side, they’ll be flanked by a crew of American kayakers who will carry the swimmer’s passports; once they cross the border they’ll be escorted by a team of Mexican paddlers along with representatives from the Mexican Navy.

"We want to cast a global spotlight on migration, which is a natural thing," Chambers says. After being raised on a farm in remote New Zealand, Chambers came to the U.S. to attend University of California, Berkeley. She holds a green card and lives in San Francisco.

KJ

April 21, 2017 in Current Affairs, Sports | Permalink | Comments (0)

Immigrant Integration Fellowships

Immigrant Integration Fellowships
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That is why we are launching the Immigrant Integration Fellowship.

We’re hiring lawyers to stand at the front lines to defend diverse communities.

This fellowship is made possible by the generosity of The James Irvine Foundation, California Community Foundation, and The Evelyn & Walter Haas, Jr. Fund.
 
Lawyers on the Front Lines  
These Immigrant Integration Fellowships are the first in a series of fellowships that will focus on placing lawyers on the front lines, protecting California's most vulnerable communities.  While the Immigrant Integration Fellows will focus exclusively on immigration, future fellows will be placed at legal aid organizations at risk of losing federal funds; at rural legal aid organizations; and at organizations serving individuals targeted by the Department of Justice and recent Executive Orders.

Stay tuned for soon to be announced fellowships.

April 21, 2017 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Seeking a Rational Approach to a Regional Refugee Crisis: Lessons from the Summer 2014 ‘Surge’ of Central American Women and Children at the US-Mexico Border by Karen Musalo and Eunice C. Lee

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Seeking a Rational Approach to a Regional Refugee Crisis: Lessons from the Summer 2014 ‘Surge’ of Central American Women and Children at the US-Mexico Border by Karen Musalo (UC Hastings) and Eunice C. Lee (UC Hastings), JMHS, Volume 5, Number 1, p. 137-179, 2017

Abstract

This article proceeds in four parts. In the first section, we examine and critique the administration’s “pull”-factor-based policies during and after the 2014 summer surge, in particular through the expansion of family detention, accelerated procedures, raids, and interdiction. In section two, we look to the true “push” factors behind the migration surge — namely, societal violence, violence in the home, and poverty and exclusion in El Salvador, Honduras, and Guatemala. Our analysis here includes an overview of the United States’ responsibility for creating present conditions in these countries via decades of misguided foreign policy interventions. Our penultimate section explores the ways in which our current deterrence based policies echo missteps of our past, particularly through constructive refoulement and the denial of protection to legitimate refugees. Finally, we conclude by offering recommendations to the US government for a more effective approach to the influx of Central American women and children at our border, one that addresses the real reasons for their flight and that furthers a sustainable solution consistent with US and international legal obligations and moral principles. Our overarching recommendation is that the US government immediately recognize the humanitarian crisis occurring in the Northern Triangle countries and the legitimate need of individuals from these countries for refugee protection. Flowing from that core recommendation are additional suggested measures, including the immediate cessation of hostile, deterrence-based policies such as raids, family detention, and interdiction; adherence to proper interpretations of asylum and refugee law; increased funding for long-term solutions to violence and poverty in these countries, and curtailment of funding for enforcement; and temporary measures to ensure that no refugees are returned to persecution in these countries.

KJ

April 21, 2017 in Current Affairs | Permalink | Comments (0)

Thursday, April 20, 2017

10 Years After The New Bedford ICE Raid

With the Trump administration's focus on immigration enforcement, some observers have wondered whether we might see increased workplace raids.

Bianco raid

Recently, a number of news agencies have looked back on a massive immigration raid that recently saw its 10 year anniversary.  On a freezing March morning in 2007, 300 Immigration and Customs Enforcement agents raided a textile factory in New Bedford, Massachusetts and arrested 361 undocumented workers, along with the people who hired them.  Hundreds of workers were detained in an operation the governor at the time said brought on a "humanitarian crisis."

Public Radio International (PRI) ran a series of stories on the fallout of the New Bedford raid

A massive ICE raid in this town didn't stop undocumented labor — or illegal immigration

Immigration law experts say workplace raids don’t really work

Undocumented workers demand rights in a city scarred by a massive raid

KJ

April 20, 2017 in Current Affairs | Permalink | Comments (0)

Stealing Immigrants' Identities

The U.S. Department of Homeland Security's Office of Inspector General has issued a fraud alert regarding a telephone scam that looks to steal immigrants' identities:

The perpetrators of the scam represent themselves as employees with “U.S. Immigration” and can alter caller ID systems to make it appear that the call is coming from the DHS OIG Hotline telephone number (1-800-323-8603). The scammers demand to obtain or verify personally identifiable information from their victims through various tactics, including by telling individuals that they are the victims of identity theft.

Read here for more.

-KitJ

April 20, 2017 in Current Affairs | Permalink | Comments (0)

The Political Attorney General

Supreme Court Argument Preview: Argument preview: Lies, damned lies, and citizenship

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Amy Howe on SCOTUSBlog previews the oral arguments in Maslenjak v. United States. which is scheduled for argument on April 26.  The denaturalization case raises the question whether the U.S. Court of Appeals for the 6th Circuit erred by holding, in direct conflict with the U.S. Courts of Appeals for the 1st, 4th, 7th and 9th Circuits, that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.  Howe concludes:

"The stakes in this case are high, not just for Divna Maslenjak but also for the millions of people who became naturalized U.S. citizens in recent years. Most of those naturalized citizens, of course, did not make false statements during the process of securing citizenship. But a ruling in the government’s favor could potentially expose many new citizens to the possibility of losing their right to live in the United States, even if their false statements did not necessarily influence the government’s decision to give them citizenship."

Maslenjak v. United States is one of a number of immigration cases before the Supreme Court this Term.  Stay tuned as we will see decisions in those cases, which involve crime-based removals, constitutional challenges to provisions of the Immigration and Nationality Act, a cross-border shooting, deference to agencies, and more.

KJ

April 20, 2017 in Current Affairs | Permalink | Comments (0)

The Facts on Immigration Today: 2017 Edition

The Center for American Progress has released the 2017 edition of a compendium of all of the facts you need about immigrants and refugees. The 50-page guide is full of a wealth of data points on demographics, enforcement, state and local issues, public opinion, recent policy developments, etc., and we hope that it will be helpful for you as a one-stop resource. 

The full report can be found here. The sections covered are listed below:

Today’s immigrant population

Demographics and political power of new Americans

Immigrants and the economy

The state of the border and interior enforcement

State and local immigration laws

Refugees

Public opinion on immigration

Recent developments: new executive orders on immigration 

KJ

April 20, 2017 in Current Affairs | Permalink | Comments (0)

Deported DACA Recipient Sues Trump Administration, Judge Gonzalo Curiel to Hear Case

The National Immigration Law Center earlier this week announced LOS ANGELES — A young immigrant who was physically deported despite having permission to live and work in the U.S. under the Deferred Action for Childhood Arrivals, or DACA, program filed a federal lawsuit today demanding that the federal government turn over key information about his sudden deportation.

Juan Manuel Montes, 23, filed a complaint in the U.S. District Court for the Southern District of California after U.S. immigration officials failed to provide any documentation to explain the legal basis for sending him to Mexico, even after his legal counsel contacted Border Patrol and requested the information under the Freedom of Information Act (FOIA). Montes worked in California’s agricultural fields to help support his family and had studied welding at his local community college before he was detained by Border Patrol in Calexico, Calif., and then was swiftly sent to Mexico, in February 2017.

Montes is now fighting to understand what happened and to take the necessary steps to return to the U.S., his home since he was 9 years old.

“I was forced out because I was nervous and didn’t know what to do or say, but my home is there,” Montes said. “I miss my job. I miss school. And I want to continue to work toward better opportunities. But most of all, I miss my family, and I have hope that I will be able to go back so I can be with them again.”

Montes, who suffered a traumatic brain injury as a child and has a cognitive disability, is believed to be the first-known DACA recipient with an active work permit to be physically deported by the Trump administration. He is represented by the National Immigration Law Center, Covington and Burling LLP, the Law Offices of Stacy Tolchin, and the Law Offices of Belinda Escobosa Helzer.

“Juan Manuel was funneled across the border without so much as a piece of paper to explain why or how,” said Nora A. Preciado, a staff attorney at the National Immigration Law Center. “The government shouldn’t treat anyone this way—much less someone who has DACA. No one should have to file a lawsuit to find out what happened to them.”

On the night of February 17, Montes was walking to a taxi station in Calexico, a border town, when a Border Patrol agent on a bicycle stopped him and asked for an identification. Montes had left his wallet in a friend’s car and did not have an identification on him.

Border Patrol then took him to a local station, where they made him sign documents without allowing him to see an immigration judge, seek counsel, or obtain copies of the documents he signed. Within hours, in the middle of the night, Montes was physically removed to Mexicali, Mexico.

“We look forward to presenting our case to the court, because our client has the right to know why and how he was physically removed from the United States when he had permission to live and work here,” said Mónica Ramírez Almadani, an attorney with Covington & Burling LLP in Los Angeles.

On March 15, with help from his attorneys, Montes filed a FOIA request with U.S. Customs and Border Protection (CBP), asking for all records of his interactions with the agency. CBP acknowledged receiving the request, but has not provided any additional information. Montes also sought additional information from U.S. Citizenship and Immigration Services (USCIS) and from the Calexico Port of Entry, to no avail. FOIA provides an agency with 20 business days to respond to a request for records. CBP and USCIS have failed to timely respond as required by law.

Announced by the Obama administration in June 2012, DACA allows eligible immigrant youth who were brought to the U.S. as children to live and work here temporarily. Montes was first approved for DACA in 2014 and successfully obtained a renewal in 2016. His DACA and work authorization were not set to expire until 2018.

Read the complaint here.

Gonzalo_Curiel

Judge Gonzalo Curiel, who presided over the fraud cases against Trump University and was criticized by Donald Trump, was random selected to hear the case.

KJ

April 20, 2017 in Current Affairs | Permalink | Comments (0)

Flores v. Sessions: UC Davis Immigration Law Clinic goes to the Ninth Circuit, Defending the Rights of Detained Children. April 19, 2017 By Fabián Sánchez Coronado ‘18

Earlier this week, the U.S. Court of Appeals for the Ninth Circuit heard oral arguments in Flores v. Sesssions in which the U.S. government seeks an emergency stay in an action involving the 1997 Flores Settlement Agreement, which addressed the treatment of minors in custody of the Department of Homeland Security.  The Flores litigation has been going on for years and this appears to be a last ditch attempt by the U.S. government to detain noncitizen minors -- which increased with the increase in Central American asylum-seekers in 2014.   The panel that heard arguments were Judges Stephen ReinhardtA. Wallace Tashima, and Martha Berzon.   

Law student Fabián Sánchez Coronado ‘18 attended the argument: 

 

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From L-R: Michael Benassini ’18, Holly Cooper ’98 of the Immigration Law Clinic, Carlos R. Holguín of the Center for Human Rights and Constitutional Law, Eduardo Osorio ’18, and Fabián Sánchez Coronado ’18.

On April 18, 2017, myself and other students from the Immigration Law Clinic and Civil Rights Clinic had the opportunity to attend Oral Argument at the Ninth Circuit Court of Appeals for Jenny Flores v. Jefferson Sessions, III, a case dealing with the rights of children in immigrant detention. 

The case arises out of a 20-year settlement agreement—the “Flores Settlement”—between plaintiffs and the government. At issue is Paragraph 24 of the Flores Settlement, which guarantees minors in detention the right to a bond redetermination hearing.

Last summer, the Immigration Law Clinic’s Co-Director, Holly S. Cooper ’98, teamed up with Carlos R. Holguín, General Counsel at the Center for Human Rights and Constitutional Law, to bring an enforcement action in federal court after the government refused to comply with its duties under the settlement, thereby denying detained children basic due process. 

 On January 20 of this year, Judge Dolly M. Gee of the U.S. District Court for the Central District of California granted the motion to enforce the settlement. Weeks later, the government filed an emergency motion in the Ninth Circuit to stay the District Court’s order, paving the way for a renewed fight over the rights of children in immigrant detention. 

After the Ninth Circuit granted the stay and expedited briefing, a group of us from the Immigration Law Clinic and the Civil Rights Clinic rolled up our sleeves and got to work, helping Professor Cooper and Carlos Holguín prepare the case. Wesley Cheung ’18, Eduardo Osorio ’18, Michael Benassini ’18 and I helped ready the Plaintiffs’ brief and prepare the materials for Oral Argument. 

The experience of working on an appellate brief—and attending oral argument at the Ninth Circuit—was a highlight for me, as I’m sure it was for my fellow law students. After spending the academic year working on various immigration and civil rights cases with our respective clinics, it was great to sit at counsel’s table for this particular occasion.   

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From L-R: Michael Benassini ’18 of the Civil Rights Clinic, with Fabián Sánchez Coronado ‘18 and Eduardo Osorio ’18 of the Immigration Law Clinic.

KJ

April 20, 2017 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Embracing the Chinese Exclusion Case: A Back-Door Solution to Racial Exclusions by Lauri Kai

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Embracing the Chinese Exclusion Case: A Back-Door Solution to Racial Exclusions by Lauri Kai, William & Mary Law Review, Vol. 59, 2018, Forthcoming

Abstract

On December 7, 2015, Donald J. Trump called for a “total and complete shutdown of Muslims entering the United States.” The Court’s precedent from 1889, Chae Chan Ping v. United States — commonly known as the Chinese Exclusion Case — allows the Court to uphold a ban on Muslims from entering the U.S in 2017. There, the Court upheld Congress's ban of Chinese laborers from entry to the U.S. by creating the plenary power doctrine.

This doctrine does not provide for a rationale to uphold bans based on race or national origin, but not based on religion. In Chae Chan Ping, the doctrine demanded judiciary’s complete deference to the political branches’ immigration decisions. The doctrine’s current form, established in 1972 and reaffirmed through 2015, merely asks whether an exclusion is made on a “facially legitimate and bona fide reason.” As long as the exclusion is on its face related to the safety of the nation, it seems that any group is susceptible to such a characterization and is thus excludable. Even in 2017, if the government could — merely facially but with some rational support — link a person’s race or religion to national security concerns, the exclusion is upheld.

President Trump’s recent executive orders prohibiting the entry of refugees and citizens from certain Muslim-majority countries has caused much concern. However, the courts analyzing these orders have rendered inconsistent and doctrinally incoherent rulings. This Note recognizes the legal mess revolving around aliens’ right to enter the United States and finds that it is time to stop distorting the plenary power doctrine. A multitude of scholars has criticized the plenary power doctrine set out in Chae Chan Ping and its progeny based on the Court’s reluctance to engage in traditional constitutional review of immigration questions. These criticisms have led in part to the distortion of the doctrine, as courts find ways around the plenary power doctrine’s command.

This Note, however, argues that the doctrine’s command is not its holding — the doctrine establishing deference — but its law. The Chae Chan Ping Court founded the plenary power doctrine in international law — in the concept of state sovereignty. State sovereignty has gone through a transformative change in the past 130 years by states' consent to various limitations. However, states' reliance on state sovereignty justifying territorial exclusions will necessarily endure. By revisiting Chae Chan Ping, the Court can rely on the necessarily enduring state sovereignty, which the evolving customary international law constrains, to refuse deference to the political branches in racial exclusions.

Specifically, this Note argues that, like in 1889, when the Court erroneously concluded that a sovereign’s power to exclude is absolute, that power is still limited. But unlike in 1889, when racial discrimination was an accepted norm both domestically and internationally, customary international law now prohibits race discrimination in admissions. This Note makes the first attempt in finding racial exclusions unlawful under jus cogens by scrutinizing state's potential justifications for deviating from the norm. This Note undermines the state's reliance on claims that no court has applied jus cogens to admissions and that well-known treaties addressing racial discrimination exempt immigration from their application.

This Note relies exclusively on racial, and not religious, discrimination because it has been more prevalent and, while race-based exclusions are rare, exclusions based on religion are even scarcer. And, while the structural argument in this Note is applicable to religion-based exclusions, this Note is ultimately not concerned with its cross-application to religion and thus renders those considerations outside of its scope.

KJ

April 20, 2017 in Current Affairs | Permalink | Comments (0)

Wednesday, April 19, 2017

The Chief Justice of California: The courthouse is not the place for immigration enforcement

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Tani G. Cantil-Sakauye, the chief justice of California, published this op/ed in the Washington Post:

"Years ago, when I was a trial court judge in Sacramento, the husband of one of my court staffers murdered their two children in front of her, beat her and then killed himself. All of us were unaware of her problems at home, as well as the fear and shame that drove her into silence.

Soon after this tragedy, I began a “domestic violence court” — a specialized court that aids victims and holds offenders accountable by connecting the justice system with social service agencies. It’s a model that works. But, like everything else in the justice system, it only works if it has the trust, confidence and cooperation of all of the participants.

It is my concern for the trust and confidence in our state court system that prompted me last month to ask Attorney General Jeff Sessions and Homeland Security Secretary John F. Kelly not to make immigration arrests at or near courthouses. Our state courts are on the front line of justice in the United States: We handle more than 90 percent of the nation’s case filings each year. I am asking that immigration agents treat courthouses as “sensitive” areas — as they do schools, churches and hospitals.

We disagree, however, on where that enforcement should occur. My request is that they respect the safety needs of the state court system and those who access it. This goes to the core of our system of government, built on the principle of checks and balances. You don’t have to read the Federalist Papers or be fortunate enough to get a ticket to the musical “Hamilton” to recognize the elegant weave of checks and balances set up by our Founders. Our three branches of government are co-equal; our local, state and federal governments have overlapping authority. Each branch and each entity should take care not to act in a way that undermines the trust and confidence of another branch or entity.

We encourage the vulnerable to come to our courthouses for help. But immigration arrests, or the fear of arrests at or near courthouses, disrupt court activities and the lives of those seeking justice. The well-publicized immigration arrests at courthouses in Los Angeles and elsewhere have disrupted court business and deterred litigants. One judge said there was “near hysteria” among civil litigants recently when they thought immigration agents were about to raid a courthouse.

An attorney in a small, rural county who assists self-represented litigants with landlord-tenant problems, domestic violence issues, probate and guardianships said litigants are too afraid to come to court. I worry that both documented and undocumented immigrants will no longer cooperate with state and local law-enforcement agencies; crimes or civil wrongs will go unreported and communities will live in fear.

Some of the comments I’ve received after I sent my letter suggest that I am against enforcement of our immigration laws. I am not. I ask for sensible enforcement tactics that do not undermine due process, fairness and access to justice in our state court systems.

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As indicated above, the Chief Justice has previously weighed in on this issue.  This op/ed responds to Attorney General Jeff Sessions and Department of Homeland Security Secretary John Kelly, who had criticized the Chief Justice's position.

KJ

April 19, 2017 in Current Affairs | Permalink | Comments (0)

CNN on the Trump family's long history with immigration

 

 
Trump
CNN has an interesting story on how the Trump family businesses have relied on the U.S. immigration system.  That is not remarkable.  But what is remarkable is the Trump administration's hard line on immigration and immigration enforcement. 
 
The Trump family's business ventures have made use of virtually every part of the US immigration system over time -- including reported instances of undocumented labor on two Trump-branded building projects.  Businesses run and owned by Trump and his adult children have been certified to legally hire 1,371 foreign visa workers since 2001, a CNN analysis of visa records shows. In addition, Trump-branded real estate has raised at least $50 million in foreign investor money through a program that gives foreign investors access to green cards, according to the company that did the development of the real estate. 
 
The Trump enterprise has made use of low-skilled permits for vineyard seasonal workers and has used high-skilled visas to bring in models for its modeling agency.
 
According to CNN, "Trump has not spoken at length about how his own business dealings influence his approach to the US immigration system. The White House has not responded to a request for comment about how Trump's life experiences will influence his policy decisions."
 
KJ

April 19, 2017 in Current Affairs | Permalink | Comments (0)

Presidential Executive Order on Buy American and Hire American

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The White House offered a briefing on the latest President Trump immigration executive order on Monday.  The order, entitled Presidential Executive Order on Buy American and Hire American, was issued yesterday.

Sectioon 2(b) provides that

"In order to create higher wages and employment rates for workers in the United States, and to protect their economic interests, it shall be the policy of the executive branch to rigorously enforce and administer the laws governing entry into the United States of workers from abroad, including section 212(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(5))."

Section 5 states:

" (a)  In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.
 
(b)  In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries."  (emphasis added).

As the New York Times reports,

"As a candidate, Mr. Trump often assailed the government’s H-1B visa program, under which the government admits 85,000 immigrants each year, mostly to work in high-tech jobs. Mr. Trump pledged to end the program, which he said was allowing companies to fire Americans and replace them with lower-cost foreign employees.

The expected executive order falls far short of ending that program, but the administration officials argued on Monday that the changes Mr. Trump sought would radically change it.

The officials said 80 percent of the immigrants who enter the United States under the current visa program are paid less than the median wage for workers in their fields."

KJ

April 19, 2017 in Current Affairs | Permalink | Comments (0)