Recently in U.S. Immigration Law Category

Late last week, Senator Chuck Grassley (R-IA) released a draft internal immigration policy memo (pdf) that one or more anonymous anti-immigrant Department of Homeland Security employees had leaked to his office. Shortly before the leak of the draft memo from USCIS, the federal immigration agency which is part of DHS, Senator Grassley, along with seven other Republican Senators, had sent a letter to President Obama warning him against taking the kinds of actions outlined in the draft memo that would ameliorate some of the current unreasonably harsh immigration policies that separate families and punish children.

The policy changes would have:

• Given DHS greater latitude to defer the deportation of undocumented youth brought here as children by their parents.

• Protected spouses and children of members of the military from being deported.

• Eased interpretation of the current strict standard for showing that deportation of a parent, child, or spouse has caused "extreme hardship" to the remaining U.S. citizen family member. Currently, forced long-term (10 years or more) separation from one's spouse or child cannot be used as a factor in deciding whether "extreme hardship" exists.
• Finalized the rules dealing with children who come to the U.S. alone, and for victims of human trafficking, domestic violence, and other criminal activities.

• Permitted USCIS to exercise discretion to target criminals for deportation proceedings in line with ICE's stated enforcement priorities.

To me and others, these seem like common sense measures that should have been adopted long ago. To the anti-immigrant groups behind this manufactured scandal, the draft policy memo is the greatest outrage the world has ever known.

Senator Grassley is working closely with the nativist group NumbersUSA, a member of eugenicist John Tanton's network of anti-immigrant organizations, in an effort to use the leak of this draft policy memo to destroy any chance of immigration reform that remains this legislative session. The leak came just as Senator Lindsey Graham (R-SC) proposed a constitutional amendment to revoke birthright citizenship, which could lead to the deportation of citizen children of undocumented parents.

The leak of the draft memo, which was written in April, followed a letter in June from the same group of GOP Senators warning President Obama not to enact administrative reforms in lieu of comprehensive immigration reform. The release of the June letter shows that Grassley and NumbersUSA had the draft memo then and were holding on to it until its release would have maximum political impact.

The timing of the release, coming in the same week that Senate Majority Leader Harry Reid (D-NV) and Speaker of the House Nancy Pelosi (D-CA) met to discuss moving the DREAM Act forward separate from comprehensive immigration reform [Update: Reid's office is now denying that he discussed the DREAM Act with Pelosi at their meeting last week], the same week that communities around the country mobilized in opposition to SB1070, was no coincidence in my view. The leak was timed to derail the momentum the DREAM Act had gotten over months and years of organizing efforts by DREAMers, including a civil disobedience action in D.C. on July 20 where 21 undocumented youth risked deportation by being arrested in the Senate office buildings and an ongoing hunger strike now in its 12th day in California. The leak was designed to increase pressure on Obama to maintain existing federal SB1070-style programs like 287g that promote collaboration between local law enforcement and ICE and lead to racial profiling of brown-skinned people.

If this is the best attack the nativists can muster, if this is their "secret weapon" against the DREAM Act or any other legislative action on immigration, then I think the pro-migrant community is in good shape.

Twenty-one undocumented youth were arrested in Washington, D.C., on Tuesday after staging sit-ins in the Hart Senate Office Building atrium and the offices of Senators McCain and Reid. This followed on the heels of a similar action in Senator McCain's Tucson office in May in which three undocumented leaders were arrested and turned over to ICE in what was the first civil disobedience action carried out by undocumented activists that I am aware of.

The students had come from all across the country to Washington, D.C., to participate in a three-day series of rallies and legislative visits to promote the DREAM Act. The DREAM Act would provide a path to legal status for undocumented youth brought here as children who complete two years of college or military service. Currently, these youth face deportation and long-term separation from their families and friends.

The students began their sit-in shortly after an annual symbolic graduation ceremony, held at a nearby church, attended by hundreds of DREAM Act-eligible students in caps and gowns. Groups of DREAMers and supporters had driven from Arizona, California, Georgia, Illinois, and many other states to attend the days of action.

Shortly before 3:00 p.m., the 21 activists fanned out to the offices of Senators Feinstein (D-CA), Reid (D-NV), McCain (R-AZ), Menendez (D-NJ), and Schumer (D-NY), where they began peaceful sit-ins. After a short while, they left the offices and congregated in the atrium of the Hart Senate Building, except that the students in Senators Reid and McCain's offices stayed put.

Twelve DREAMers in the Hart Building atrium began a peaceful sit-in and were arrested by Capitol Police shortly afterwards. They were then taken to a local processing facility. Four DREAMers in Senator McCain's office and five in Senator Reid's were arrested between 7:30 and 8:00 p.m. after the Senate office buildings closed. Seventeen of the DREAMers were released Tuesday night or early Wednesday morning, while four were held overnight and released after appearing at their arraignments.

The activists in yesterday's action risk deportation if ICE gets involved as they go through the criminal process. Their arrests triggered an immediate and intense emotional response from the groups they had traveled with to D.C., which included siblings, parents, teachers, and friends, many of whom did not know the 21 would be arrested.

"Gentlemen, I have some information that may be of interest to you ... We have been having some trouble in our town with housing for Negros ... These Negros all have the same lawyer ... It looks like the same old Commie pattern" - 1961 letter in Bill Kunstler's FBI file.

Last week I learned who Bill Kunstler was for the first time. I went to college for four years, law school for three. I've worked as a public interest lawyer since 2006. But still I'd never heard of one of the most influential civil rights lawyers of the last 50 years until I saw the documentary his daughters made, "Disturbing the Universe."

Kunstler represented a string of high-profile defendants over the course of 30 years:

-- 1961 - represented Freedom Riders in Mississippi
-- 1969 - defended "Chicago 7"
-- 1971 - attempted negotiation between Attica prisoners and authorities before NY State Police stormed the prison and slaughtered 28 prisoners and 9 guards
-- 1973 - helped negotiate at Wounded Knee, later represented members of the American Indian Movement
-- 1989 - defended Gregory Lee Johnson's First Amendment right to burn the U.S. flag
-- 1989 - defended Central Park jogger rape defendants, who were later exonerated

Later, he represented the 1993 World Trade Center bombers and the Gambino crime family. His daughters believed that toward the end of his career, he lost perspective and looked for clients who were unpopular, no matter how they got that way.

Even so, the thread running through his career was the idea that when the government throws its resources at a high profile case against unpopular defendants, chances of a fair outcome are greatly reduced. And Kunstler believed the criminal justice system was just another symptom of a flawed society. If the criminal justice system, supposed to be the core of American democracy, was rotten, what did that say about American democracy? Kunstler's advocacy showed that the law, so often used as a tool of oppression, could be used for social change instead.

He never believed incremental change was enough. The cases he fought and causes he promoted advanced that change, but it was never enough for him.

Kunstler was clever enough to avoid the mistake of blaming the problems he saw on a particular leader or political party. Rather, he blamed systems, which is to say he held everyone responsible, including himself.

His goal was to flip the script. Instead of letting the government put his clients on trial, he used his cases to put the government on trial.

Since I work as an immigration attorney at a nonprofit, it is only natural that ICE is not my favorite government agency. Regular readers of the blog probably know that by now. If I worked at the Public Defender's Office, I would regularly (as opposed to occasionally) blog about the perfidy of the Assistant District Attorneys. If I were a cop, I would blog about those weaselly public defenders or the DFHs at the ACLU.

But once in a while I read a story about ICE that surprises me, and I'd like to think I've developed a thick skin about these things over the last few years.

Helen O'Neill writes for the AP about a brother and sister who became confidential informants (CIs) for ICE. Emilio and Analia Maya were introduced to ICE by a friend of Analia's, a police officer named Sydney Mills.

According to Mills, the deal was straightforward: In exchange for working as informants, ICE would help the brother and sister get coveted S visas, which, in rare instances, are awarded to immigrants who help law enforcement.

After working for ICE without pay from 2005 to 2009, sometimes in dangerous undercover situations, ICE turned on the Mayas, arresting and detaining Emilio and putting both siblings into removal proceedings. Officer Mills doesn't know what to make of this:

A 10-year veteran of the police department, Mills had long worked undercover narcotics operations, sometimes with the FBI. He knows how deals are stuck with informants. And though he had never dealt with ICE before, "I assumed it was just another law enforcement agency and the rules would be the same."

The golden rule: "You protect your sources, and you never renege on a deal."

At first, I concluded from this story that ICE is just not very good at law enforcement. ICE's stated mission is to "protect the security of the American people and homeland by vigilantly enforcing the nation's immigration and customs laws." Wouldn't that goal be better served by cultivating trustworthy CIs to help ICE target violent offenders, human traffickers, and transnational crime syndicates?

Then I remembered what I've learned from my daily experience dealing with ICE and the immigration bureaucracy: preventing crime is hard, deporting the nearest undocumented gardener, cook, or nanny is easy. When politicians and the press give DHS a free pass, the stated goal of protecting the security of the American people often takes a back seat to the unstated goal of deporting as many brown people as possible.

ICE spokespersons talk up its Criminal Alien Program and Fugitive Operations teams, but don't mention the fact that 73% of people apprehended by the Fugitive Ops teams in recent years had no criminal records, or that the Criminal Alien Program targets people after an arrest, not a conviction, leading to racial profiling by local police who know an arrest on any pretext may lead to deportation.

ICE's shameful treatment of its CIs sends a clear message about its true priorities: Deport the easiest targets first, then combat crime if we get around to it. That's not something I'm happy about supporting with my earnings this tax season, and I won't be voting this fall for any politician who shovels money at ICE's "law enforcement" operations without asking what the agency is doing with it.

On one level, I appreciate the decision of Paul Mayer, a U.S. Department of State (DOS) employee stationed in Canada, to travel to Haiti to assist in the evacuation of U.S. citizens stuck in Haiti after the earthquake.  For one thing, it's certainly more than I've done to date in response to the quake.  For another, I'm a U.S. citizen, and if I were stuck in Haiti after the earthquake, I would want to be helicoptered out of there asap. 

I know from my interactions over the years with DOS that many foreign service officers join DOS because they want to improve U.S. relations with other countries or show non-Americans that we're not all in thrall to Rush Limbaugh and Sarah Palin.  In fact, I completed an internship at the Rome Embassy in college and once dreamed of becoming a foreign service officer, or "FSO" for those in the know.

But Mayer experienced some inner conflict in Haiti that he didn't quite know how to deal with:

To say that it was heart-wrenching to do this work doesn't fully capture the feeling. Many tears were shed and many voices were raised. Time and time again, we would hear people begging us, "Please, what are we supposed to do?" It was so, so hot, and we all perspired copiously, but we knew that the people waiting in the queue were hotter and thirstier than we were. As much as it hurt, we had to say no to the unqualified cases; not doing so would be against the law and would also disadvantage those American citizens whose safety and well-being was our first priority. Under U.S. law, the State Department has very clear guidelines for the aid and assistance we provide American citizens in times of crisis, and our office of Overseas Citizen Services in Washington is there to support and guide us every step of the way. The Foreign Affairs Manual (we call it "the FAM") explains things in precise detail.

The FAM, however, doesn't prepare you for the feeling you get from saying, "No" and "I'm sorry" over and over. The FAM doesn't tell you how many bottles of water you will need to give people who've been standing in line for six hours. The FAM doesn't tell you how quickly you need to take the Power Bars you'd bought at Wal-Mart out of your backpack, just so you can give them to the people who are saying, "Please, j'ai faim." The FAM does not tell you whether you're permitted to shed a tear when you see the look of resignation in a person's eye after you've said, firmly, "I'm sorry, but you do not qualify." People just walked away, with their kids in one hand and their suitcase in the other. There were 500 more in the queue, waiting for their turn to come. This was Day 6 after the earthquake.

I propose that this inner conflict stems from Mayer's job description: to prevent the poorest and most vulnerable from coming to the U.S.  It is the organizing principle of the entire immigration system.  As he points out with some regret, the laws are clear and he must not stray from enforcing them.  Yet as Consular Section Chief  at the U.S. Embassy in Montreal, Mayer has uncommon insight into the impact of the screening function of the immigration bureaucracy.  He knows that the people he turns away will suffer; he knows that some will die.

This is the particular tragedy of FSOs around the world: cosmopolitan and compassionate, their instinct is to give refuge to the dispossessed, but rules are rules and must be obeyed.  Who are they to challenge the System That Keeps Us Safe?  Those who question authority tend not to work for the most powerful institution in the world, policing the boundaries between Us and Them. 

But there are other paths.

(Via BIB)

This comment from a post on family separation last year at change.org sums up the U.S. immigration system better than any analysis I've seen in a while.  The most insightful point: the system isn't broken, it works just as it was designed.  The Immigration and Nationality Act wasn't just randomly slapped together in a couple of weeks.  These laws were discussed and debated over many years and voted on by U.S. politicians who claimed to have the support of their constituents. 

Nina Bernstein wrote recently in the NY Times about a New Jersey pastor who became an advocate for Indonesian Christians facing deportation and worked out an unusual deal with the government under which many at risk of deportation turned themselves in, agreeing to appear at regular appointments with immigration officials.

The financial crisis that swept through East Asia in 1997 sparked anti-Chinese riots in Indonesia that prompted many ethnic Chinese to flee the country. After 9/11, immigrant men from predominantly Muslim countries, including Indonesia, were required to register with DHS in a sweeping program of racial and religious profiling (pdf) called NSEERS engineered by restrictionist Kris Kobach, then an aide to Attorney General John Ashcroft.

In the past few years, NSEERS began to impact the Indonesian congregation that shared the building with Pastor Seth Kaper-Dale's flock in Highland Park, New Jersey. Families were ripped apart and fathers of U.S. citizen children were deported back to Indonesia. After going to great lengths to prevent one of his own congregants from being deported, Pastor Kaper-Dale negotiated a supervised release for the man. Raids had the community living in fear. So Pastor Kaper-Dale decided to be proactive and urged more Indonesians in the community to come forward and cooperate with DHS.

Under an unusual compact between the pastor and Immigration and Customs Enforcement officials in Newark, four Indonesians have been released from detention in recent weeks, and 41 others living as fugitives from deportation have turned themselves in under church auspices. Instead of being jailed -- as hundreds of thousands of immigrants without criminal records have been in recent years -- they have been released on orders of supervision, eligible for work permits while their lawyers consider how their cases might be reopened.

Though agency officials say the arrangement is simply an example of the case-by-case discretion they often use, the outcome has astonished advocates and experts in immigration enforcement, and raised hopes that it signals some broader use of humanitarian release as the Obama administration vows to overhaul the immigration system.

Reading this story as an immigration attorney, I almost feel sick to my stomach. If Pastor Kaper-Dale has tapped into a kinder, gentler side of Barack Obama's DHS, it is one that has persistently eluded the majority of faith-based and nonprofit immigration attorneys in the U.S. These parishioners have traded their fear of home raids for fear that the next visit to DHS on an order of supervision could be their last, as those with previously-denied cases could at any moment be placed on a plane back home. Recently, a DHS official in Philadelphia frankly acknowledged that ICE prefers not to give advance warning of detention at a scheduled appointment under an order of supervision, since it only makes it harder to locate and deport the person. I have clients on orders of supervision with final orders of removal, and the anxiety that situation produces can be intense. Those parishioners with no previous interaction with the system and no clear path to relief who brought themselves to the attention of the government as part of this deal are making a leap of faith. I hope they each individually had the opportunity to hear from an immigration attorney about the potential downside to this arrangement, which is sudden, unannounced deportation:

for those who turn themselves in, the leap of faith carries big risks. For now, they can check in at a federal office every three months and, if granted a work permit, can secure a driver's license. But they are also vulnerable to immediate deportation. Just this fall, nine Indonesian Christians in Seattle who had been on supervised release for years were abruptly detained, and some were deported.

Today’s guest post comes from Greg Bloom at Bread for the City, a Washington D.C. nonprofit that serves the city’s low-income residents. Cross posted at the Sanctuary.

Bread for the City is best known here in Washington DC for our food pantry (which is the largest in the city). But in addition to food assistance, we also offer a comprehensive range of services to all kinds of poor and vulnerable people in our community.

As of this year, that includes victims of torture who have fled to America to escape persecution.

For years, many such people have turned to us for food and medical care. But for those who are undertaking the complicated legal process of seeking asylum in America, there is great and special need- and it isn’t currently being met in many places.  

Asylum-seekers must essentially prove their claims of persecution - often times through the physical evidence present on their own bodies. This process can entail a lengthy and resource-intensive medical examination, requires extensive, legally-appropriate write-ups, and the doctors might even need to provide testimony in court. Furthermore, the doctors must have the psychological capacity to engage with deep trauma.

As a result, it can be very difficult to find doctors who are willing to play this critical role in the asylum process.

With the help of some volunteer doctors and engaged board members, we’ve recently opened our medical clinic on a special monthly basis for this purpose. It’s hard work, and this week the Washington Post profiled the clinic in a special feature, profiling our Medical Clinic director, Randi Abramson, among others:

Abramson drops onto a stool, composing her thoughts before entering on a laptop the horrifying story of her most recent patient at the District nonprofit organization’s new monthly clinic for political asylum-seekers: a 24-year-old Kenyan woman who recently fled Mexico and is petitioning to stay in the United States. Raised by abusive grandparents who beat her and, at 10, subjected her to genital mutilation. Cast out by her family for choosing school over marriage, she was tricked into a prostitution ring couched as a scholarship opportunity. She ended up in a Mexican brothel, where she was held captive, beaten and knifed by a customer.

Such shocking tales of cruelty can take a toll, said Abramson, one of three doctors who have volunteered to lend expert medical credence to clients’ allegations of torture and abuse. It has been difficult to find doctors willing to take on these cases. But those who have stepped forward say they find powerful satisfaction in the opportunity to boost wrecked lives onto a path toward salvation.

“The scars, everything I found in the physical exam completely support the history she related,” Abramson said. “It’s just very rewarding to know that I will document what I heard and saw this evening and that will have a huge impact on her life.”

(Sign the petition demanding justice for Julio and Denis here.)

Julio Maldonado and his cousin Denis Calderon were victims of a bias attack in South Northeast Philadelphia in 1996. Denis's family was the first Latino family to live in the neighborhood. Tragically, one of the attackers, Christian Saladino, fell into a coma and later died. Police assumed that he had been struck in the head by Julio, acting in self-defense as a result of a fight. However, later medical evidence showed conclusively that Christian had not sustained any outer injury that could have led to his physical reaction. He did, however, suffer from a rare preexisting blood clotting condition. It is clear from the medical evidence that it was physically impossible for Julio to have put Christian Saladino into a coma.

But due to the one-sided investigation by police and the biased prosecution by Seth Williams, now the nominee for District Attorney of Philadelphia, Julio and Denis were convicted of assault. After Christian Saladino passed away, Williams brought murder charges. Once the medical evidence came to light in the murder trial, the jury acquitted Julio and Denis of murder. Then the original trial judge who convicted Julio and Denis of assault, Judge Gregory Smith, vacated his own verdict and called for a retrial.

Normally, when I have to meet my Mexican coworkers near the border, I walk right into Mexico through the turnstile doors.  Sometimes there is a guard, more times there isn't.

Even though Nogales is a more tranquilo border city than the ones in the news (Tijuana, Juarez), I don't usually linger too long near the line because as a guera (light-haired, light-skinned), I'm recognized as an American (which I am mostly), assumed to have money (which I don't really), and solicited for a taxi, taxi or to buy pharmaceuticals or souvenirs "for your boyfriend", as I'm told in impressively unaccented English.  This interaction, sort of amusing and novel the first time I crossed 5 months ago,  lost its appeal pretty quickly and I've trained hard to maintain an as-uninterested-as-possible expression on my face to reduce the solicitations to buy stuff.  It's sort of worked.  It also helps that I'm chaparrita (short) so I blend in more if I travel alone.

A few days ago I had the chance to linger for a longer while and observe the pedestrian traffic on the Mexican side.   I wasn't exactly surprised by what I saw, since I have been a foot pedestrian for a while now, but standing there and doing nothing but watching, I became newly aware of the contrasts and different degrees of privilege before me, all coexisting for brief moments as they pass and don't pass each other.  These are the people that I share foot space with on the Nogales border:

• The most privileged crossers: American-passport carrying retirees venturing into Mexico on an excursion to try burros (burritos), buy cheap medicine among the sea of pharmacies and perhaps a mask or some animal horns (no joke, I saw retirees carrying this as a souvenir a few weeks ago).

• The second most privileged crossers: Mexican-Americans with US passports, mostly residents of the border on the US side, going to visit their families, work, conduct business, and carry out the million other activities that link the two sides.  I think of this group as the second most privileged because they tend to have less disposable income than the retirees and are often treated rudely by Customs officials for being Mexican.

• The semi-privileged crossers: A little known but large group totaling several million border residents who after proving their ties to Mexico (through business, employment, family, property, or other ties), i.e. that they are only entering the US for a temporary stay, applied successfully for border crossing cards that entitle them to enter the US, 25 miles inland, and up to Tucson 65 miles away in Arizona, for a period of 30 days.  This group, a huge chunk of border traffic, is semi-privileged because they have to jump through a lot of hoops to cross legally, and even when they do their movement in the US is limited.

• The non-crossers: The majority of Mexicans do not qualify or cannot afford visas to the US and cannot cross through legal means.  (Mexicans who hail from areas south of the border do not qualify for the border crossing cards.)  Those who want/need to cross but can't are forced to cross illegally.  When I lingered, I watched about 25 crossers in camouflage dark green, blue and black clothing.  It wasn't clear to me which of them were preparing to cross and which had just been deported.  Some carried Homeland-Security issued plastic bags with clothes in them.  I'm not sure whose clothes they were.  Although I was intensely curious, I respected their privacy and held back from asking questions since they were either about to embark on a possibly deadly journey or had been forcibly returned from one.

I feel like it's so obvious, but I still need to point out how incredibly unfair it is that people like me can cross on a whim, that the hierarchy of border crossers exists and that the "non-crossers" have to risk their lives to cross.  On a return visit to the border on Friday, I snapped these two shots.  The first is a small section of the wall in which Nogalenses have attached crosses to mourn the Mexicans who have died crossing.  You can't see it in the picture but the crosses bear the names of the dead.

And this is the graffitied sentiment on the wall generated by unequal border policies and the resulting deaths.

For those who don't know Spanish, the graffiti reads, "BORDERS, SCARS ON THE LAND."

In an ideal world, I would advocate for the erasure of borders.  In the real world, I want to push for a sensitization of borders to people's needs and wants, to be with family, to work, to travel, to move more freely.

The border crossing card that allows the semi-privileged crossers entry into the US may be the model that we need to build off of.  This card could possibly increase Mexicans' and other foreigners' access to the US and create reciprocity between US immigration policies and the freer immigration policies of countries that allow us unlimited entry.  Obviously the border visa card would need to be revised - 25 miles and 30-day restrictions just don't cut it - but it is a start.  The border visa card could even win over conservative Americans.  Its laser technology means authorities can regulate who is entering, and because it allows people to come and go, it is likely to reduce "illegal" immigration.   This is by far not the only solution, but one that seems fairly obvious for this border resident.