A Campaign of Fear Towards Immigrants

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Category: Immigration Law, Public
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Nineteenth Century US political cartoon of Uncle Sam kicking out the Chinese, refering to the Chinese exclusion act.The question I am asked over and over lately: “how do I get temporary guardianship for my children in case I am detained and deported?” The fact that I hear this question, or some similar form of it, so frequently in recent weeks is indicative of the level of fear in the immigrant community. This fear is a direct result of the new policies of our President, his executive orders, the follow up memoranda from Homeland Security, and the waves of “targeted enforcement” by Immigration and Customs Enforcement (ICE) that have been unleashed nationwide.

Let’s be clear, ICE has been carrying out its daily work of initiating deportation proceedings long before this presidency. That has not changed. ICE currently has the same number of officers and the same amount of resources. There is no “deportation force” over and above what we already had – at least not yet. However, the tone and tactics being used have clearly changed. Virtually any undocumented immigrant is now a priority for removal, regardless of whether they have a criminal record. Media recently reported that ICE detained a domestic abuse victim in El Paso, Texas after going to court to file a restraining order. ICE also detained a young Dreamer from Argentina in Jackson, Mississippi just after leaving a press conference where she spoke out against these changes. People hear reports of these high-profile cases and wonder if they will be next.

It is the beginning of a campaign of fear directed towards not only the undocumented, but immigrants in general. Fear feeds rumors, which can turn fear into panic. This is the first step. Order a travel ban for Muslim-majority countries in the name of protecting us from terrorists. Call for more deportations of undocumented immigrants while labeling them as criminals. This scares immigrants, but also creates fear of the “other” among the wider general population. Is this the America we want to be? Read more »




Ninth Circuit Rules 3-0 Against Trump Administration: Analysis and Explanation

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Category: Constitutional Law, Immigration Law, President & Executive Branch, Public, Religion & Law
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Tonight, the Ninth Circuit issued an unanimous ruling in State of Washington v. Trump rejecting the Trump Administration’s motion for an emergency stay of the District Court’s temporary injunction.  That order by the District Court had the effect of halting enforcement of the President’s January 27 Executive Order suspending entry of aliens from seven specified countries into the United States.  In prior posts here and here, I argued that the January 27 Executive Order violated statutory provisions such as the 1980 Refugee Act and also that the Order violated the United States Constitution by discriminating on the basis of religion in the entry of immigrants and non-immigrants.

Tonight’s ruling by the Ninth Circuit is necessarily limited by the procedural posture of the case.  The court states at the outset:

To rule on the Government’s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides. Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.  (opinion at p. 3)

Despite this procedural posture, the opinion issued by the court goes out of its way to make several strong statements of law.  First, the court firmly rejects the assertion of the Trump Administration that “the district court lacked authority to enjoin enforcement of the Executive Order because the President has ‘unreviewable authority to suspend the admission of any class of aliens.’ ” (opinion at p. 13). Read more »




President Trump’s Executive Order is Still Unlawful

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Category: Constitutional Law, Federal Law & Legal System, Human Rights, Immigration Law, President & Executive Branch, Public, Religion & Law
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Yesterday, in a post on this Blog, I called President Trump’s Executive Order of January 27, 2017, “a rare trifecta of illegitimacy.”  The rollout of the Executive Order has been confused, and its implementation uneven.  Thus far, most Republican members of Congress have been silent on the legality of the Executive Order, even those Republicans who criticized Trump’s proposal to ban Muslim immigration during the presidential primaries.  Notably, the Executive Order has received only tepid support from Senate Majority Leader Mitch McConnell.

The Executive Order purports to “suspend entry” of all aliens into the United States who are nationals of specified countries.  Media accounts describing the implementation of the Executive Order have focused thus far on the situation of individuals who are fleeing persecution being turned away at the United States border, and subsequently returned to their home country.  For example, reporters have underscored the plight of Iraqis who provided assistance to U.S. forces during the Iraq War, and who have expressed fear over their safety if they remain in Iraq.

Defenders of the President’s power to issue the Executive Order point to a 1950s era statute passed by Congress, Section 212(f) of the Immigration and Nationality Act ( 8 U.S.C. 1182(f)).  This provision is the key to the power Mr. Trump claims to suspend entry of certain categories of aliens and return them to their home countries.  Section 212(f) says:

“Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” (emphasis added)

By its own terms, the statute purports to grant the President the power to “suspend the entry” of aliens.  However, the Trump Administration has gone further.  The Trump Administration is turning aliens away from the border and returning them from whence they came. Read more »




A Trifecta of Illegitimacy

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Category: Federal Law & Legal System, Human Rights, Immigration Law, President & Executive Branch, Public, Religion & Law
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Let’s review a few basics about the Rule of Law in the United States of America.  First of all, the Executive Branch (in the form of the President) is given the power to enforce federal law by our United States Constitution.  In contrast, the Legislative Branch (in the form of the Congress) is given the power to make the law.  So, for example, if the Legislative Branch has passed a statute that grants all refugees seeking political asylum the absolute right to file such a claim when they reach our nation’s borders (which it has, in the Refugee Act of 1980), then the President cannot simply declare that right to be “suspended” and instruct officers with the Customs and Border Protection office to turn such refugees away when they arrive at U.S. airports or other ports of entry.

As a side note, none of the Executive Orders or Presidential Directives issued by President Obama relating to the enforcement of the immigration laws directly contravened explicit language contained in a statute passed by Congress.  The legal debate over the unilateral actions taken by President Obama concerned the scope of the President’s discretion to choose how to enforce the law and how to prioritize deportations.  They did not concern whether the President had the authority to order government officials to ignore explicit commands contained in the law.  The Order by President Trump to “suspend” the entry of refugees from specified countries without complying with the provisions required under the Refugee Act of 1980 is in direct conflict with an Act of Congress.

Second, the United States has signed treaties that obligate us to treat persons who are “refugees” in certain ways. Read more »




A New Era: The Rule of Law in the Trump Administration

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Category: Civil Rights, Constitutional Law, Federal Law & Legal System, Federalism, First Amendment, Human Rights, Immigration Law, Labor & Employment Law, Legal History, Political Processes & Rhetoric, Public, Race & Law
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Well, here we are, January 20, 2017, and Donald J. Trump has been sworn in as this nation’s 45th president, though he achieved that position by losing the popular vote by the widest margin of any winning candidate in recent history (2.9 million more people voted for Democratic candidate Hillary Clinton), and he arrives at his new position with the lowest approval rating of any president in recent history.

As numerous others before me have written, President Trump’s campaign was not traditional in any number of ways, and I expect that his presidency will follow that trend. For some, that’s been the whole point. For others, that’s a less-than-inspiring harbinger. I wrote this summer about my concern about the candidate’s rhetoric, proposed policies, and the rule of law.

Though he has since backed off some of his campaign promises (for example, about having a special prosecutor investigate rival Clinton for her use of a private email server—a favorite chant at his rallies was “Lock her up!”), nothing since that time has changed my view. I continue to believe that the president won’t be appreciably different from the candidate. Read more »




Big Dreams and Hidden Harms

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Category: Federal Law & Legal System, Immigration Law, Political Processes & Rhetoric, Public
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One of the first choices that the Trump Administration will face after the upcoming inauguration is what to do about the “Dreamers.”  The name Dreamer has been used both to refer specifically to the young adults currently participating in the Deferred Action Childhood Arrival program (DACA) and, more generally, to any undocumented residents of the United States who were brought to this country by their parents when they were minors.

It is not difficult to be sympathetic to the plight of the Dreamers.  As undocumented residents of the United States, they were subject to immediate deportation under the law as it existed prior to 2012.  However, these longtime residents of the United States often had little memory of their birth country and may not have spoken any language other than English.  They grew up in the United States, and attended U.S. schools, and as a result they share the same hopes and dreams of any native born young adult.  Moreover, they were not morally complicit in their parents’ decision to enter the United States.  Prior to 2012, approximately 2 million people essentially found themselves trapped in a form of limbo – feeling American, unconnected to any foreign country, and yet unable to work lawfully in the United States or to plan for their future.

Legislation was first introduced in Congress in 2001 to resolve this situation and to permit these persons to obtain legal residence in the United States.  Titled the Development Relief and Education of Alien Minors Act (or DREAM Act), this first bill and similar versions introduced in subsequent years were designed to create a 6-year pathway to permanent legal residency.  To be eligible under the DREAM Act, a young adult had to have been brought to the United States at a young age, was required to be a college graduate or a military veteran (or be currently enrolled or enlisted), and could not have a criminal record.  The DREAM Act and its successor bills boasted bipartisan support but never passed both houses of Congress, either as a standalone bill or as a component part of a comprehensive immigration reform package.

Frustrated by congressional inaction, President Obama chose to extend relief to the Dreamers in the form of a Presidential Directive. Read more »




Trump’s Rhetoric, Proposed Policies, and the Rule of Law

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Category: Constitutional Law, Federalism, First Amendment, Immigration Law, Judges & Judicial Process, Media & Journalism, Political Processes & Rhetoric, Public, Religion & Law
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www.intellectualtakeout.org_

For some, presumptive Republican nominee for president Donald J. Trump’s biggest appeal is his blustery persona and his take-no-prisoners attitude in his quest to “Make America Great Again.” For example, he started his campaign with a bold promise to build a wall on the United States border to keep out Mexican immigrants. More than that, Trump said, he would make Mexico pay for that wall. Mexican President Vincente Fox said Mexico would not and Trump just upped the ante. When Wolf Blitzer asked Trump how he would get the Mexican government to pay for a wall, Trump responded simply, “I will and the wall just got 10 feet taller, believe me.”

And, in the wake of the mass shooting at Pulse, the gay nightclub in Orlando, Trump renewed his call to profile on the basis of race/ethnic origin and religion, in order prevent future terrorist attacks. (The Pulse nightclub shooter was American-born and raised; his parents were refugees from Afghanistan, but his father became a naturalized American citizen.) Though claiming he hates the “concept” of profiling, he says other countries profile, and “it’s not the worst thing to do.” Earlier in his campaign, after the San Bernardino shooting in December 2015, he talked about increasing surveillance of Muslims and mosques and has suggested registering Muslims or mandating that they carry cards that identify them as Muslims.

Trump also doesn’t suffer fools gladly—or more precisely, he doesn’t suffer his version of “fools” gladly. When the Honorable Gonzalo P. Curiel, the federal circuit judge presiding over two class action suits against Trump University, ordered documents in the suit be unsealed—documents that are likely to shed negative light on Trump University, Trump spoke loudly and often about Judge Curiel as a “hater” and biased against Trump because, in Trump’s view, Judge Curiel is Mexican and, presumably, would not like Trump’s wall. (Judge Curiel is an American, born in Indiana.) Trump went even further, seemingly threatening the judge: “They ought to look into Judge Curiel, because what Judge Curiel is doing is a total disgrace. . . . O.K.? But we will come back in November. Wouldn’t that be wild if I am president and come back and do a civil case?”

As well, just over a week ago, Trump revoked The Washington Post’s press credentials to cover his campaign because he did not like how it wrote about some of his comments after the mass shooting at Pulse, calling the publication “phony and dishonest.” Trump seems particularly thorny about The Washington Post’s owner, Jeff Bezos, who founded Amazon. Like Judge Curiel, Bezos has been on the receiving end of what seems very much like a Trump threat. According to The New York Times, Trump said in February about Bezos, “He owns Amazon. . . . He wants political influence so Amazon will benefit from it. That’s not right. And believe me, if I become president, oh do they have problems. They’re going to have such problems.”

These examples and more have a common theme: Trump’s disdain for the rule of law, if not outright ignorance of it. Read more »




Wisconsin’s Narrow Interpretation of Padilla v. Kentucky

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Category: Constitutional Interpretation, Constitutional Law, Criminal Law & Process, Immigration Law, Prisoner Rights, Public, Wisconsin Supreme Court
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4c556cb87b0a9_imageWhile in my final semester of law school, the United States Supreme Court issued its decision in Padilla v. Kentcuky, holding that the Sixth Amendment’s guarantee to the effective assistance of counsel includes affirmative advice about the immigration consequences that flow from a criminal conviction.  559 U.S. 356 (2010). I have never practiced criminal defense in a pre-Padilla world. I have always considered it my duty, through research, and often times consultation with an immigration attorney, to determine what the client is facing if he or she accepts a plea. Likewise, I have always considered it my duty, if it is important to the client, to try and mitigate the immigration consequences when negotiating a plea. While it is impossible to mitigate all immigration consequences, it is possible to provide clients with an analysis about the consequences, or potential consequences, of a plea. The most important thing, in my opinion, is that a client understands the immigration consequences associated with a conviction, and thus, is given an opportunity to make an informed decision.

Prior to Padilla, immigration consequences were considered a collateral consequence of a criminal conviction, which meant that a claim of ineffective assistance of counsel was limited to instances of affirmative misadvice, rather than failure to render any advice at all. Padilla changed the landscape of the Sixth Amendment, and the decision reflects the Court’s recognition that deportation has long been recognized particularly harsh penalty associated with a criminal conviction, and that changes to the immigration law have made deportation “virtually inevitable” for most non-citizens with a criminal conviction. Id. at 360.

The Padilla Court, however, seemed to split the deficient performance prong of a Strickland analysis by linking the specificity of the advice required with the clarity of the immigration consequence. Accordingly, when the immigration consequences of conviction are “clear,” or “succinct and straightforward,” counsel’s obligation to give specific advice regarding those consequences is “equally clear.” Padilla, 559 U.S. at 369. In an unclear situation, a defense attorney still must advise his client, but the advice may be reduced to a more general warning. Id. Thus, leaving open for interpretation what constitutes a “clear” consequence, and what defense counsel’s duties are to find out the consequence. Read more »




MULS Conference to Consider Human Trafficking and Restorative Justice

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Category: Criminal Law & Process, Human Rights, Immigration Law, International Law & Diplomacy, Labor & Employment Law, Marquette Law School, Milwaukee, Poverty & Law, Public
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MartinaVImage_0On Thursday and Friday, Marquette Law School will host an important conference, “Restorative Justice and Human Trafficking — From Wisconsin to the World.”  As the title suggests, human trafficking — for sex or labor — is a both a global human rights problem and a significant issue locally.  Hundreds of cases have been reported in Wisconsin, mostly in the Milwaukee area.  The conference is designed to raise awareness about trafficking and to help concerned citizens get involved in efforts to address the problem.

The Conference kicks off at 4:30 on Thursday with a keynote address by Martina Vandenberg (pictured above), who leads the Human Trafficking Pro Bono Legal Center in Washington, D.C.  Vandenberg has worked on cases involving trafficking and other humans rights violations around the world.

On Friday, the Conference will continue with a full schedule of speakers and panels.  A panel of victim-survivors will share their experiences.  Local leaders and activists will discuss the impact of trafficking and current efforts to help victims.  Other speakers will cover the existing legal framework, potential legal reforms, and the international context of trafficking.

The Conference is sold out, but there will be a live feed that can be viewed by clicking on the “Watch Now” tabs in the pages linked to above.




Pi and the Law: What Is Constant and What Is Not

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Category: Immigration Law, Public
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pi_day_pieTomorrow is Pi Day. In fact, it is the ultimate Pi Day given that Saturday’s date is 3.14.15. Enjoy a delicious piece of apple pie at 9:26.53 and you’ve taken the festivities about as far as you can hope to. Mathematicians, on the other hand, have carried this irrational national number out to over a trillion decimal places and determined that pi is a transcendental number (it cannot be expressed by any finite series or arithmetical or algebraic operation). Conceptually, pi symbolizes the ratio of the circumference of a circle to its diameter. It is constant, and perhaps that is what we should celebrate most.

There are few things in today’s world that are constant. One could argue that things today change at greater speed than ever before in history. Invention drives change–whether it is a new technology, process, or connection. In particular, scientific discoveries advance change, yet these discoveries rely on unwavering empirical laws and principles.

We, as lawyers, do not have the luxury of such a solid foundation. That is, our field depends on laws that are always changing—if not in form, then in interpretation. We must be nimble, able to change our theory as facts of the case are revealed, as new laws are passed, as politics and technology change, as the jury is selected, or as the judiciary announces a decision. There is no mathematical equation that provides a determinative estimation despite all the rules, codes and regulations that we study. And the closest thing to a constant that we have is the Constitution, which we all know has been interpreted differently over time.

This variability may provide the flexibility society needs to evolve while maintaining order. However, for some individuals, this lack of predictability can make life chaotic and tumultuous.

For example, consider immigration law. This field continues to evolve and change rapidly with new political leaders and bickering legislatures. While the law is trying to adapt to the changing landscape of the United States, individuals’ lives, plans, and goals linger.

Through my experiences with the Marquette Volunteer Legal Clinic and my work as a study abroad coordinator in the Office of International Education, I have seen this phenomenon first hand. For instance, I work with students who want to study abroad as Deferred Action for Childhood Arrivals (DACA) recipients. While the law currently provides a process to gain permission to leave and re-enter the country, they are not guaranteed the right to re-enter even having obtained permission. Further, with upcoming elections looming, it is uncertain if DACA will remain an option for students. Needless to say, under such a cloud of uncertainty, their ability to focus on their academic pursuits, including studying abroad, becomes seriously compromised.

Uncertainty can also arise from how the law is applied by judges. Take for example asylum cases. Despite having a very narrow and defined standard, judges apply it very differently when granting or not granting this status. During a talk by Dr. Noelle Brigden last fall, this chart was shown. I was shocked by the disparity in case decisions. Some judges seldom granted asylum, yet others almost always granted this status. How can that be justified by law? I find it troubling that a person’s fate may rest not on the merits and needs of immigrating to the U.S. but rather on who is sitting on the bench.

As a law student, I continue to better grasp how the law and its practice equate to consistent justice. As the government becomes increasingly polarized, technology advances, the economy fluctuates, and the law morphs, today I take solace in celebrating pi, Archimedes’ irrational constant, with a piece of my favorite, homemade, and very transcendental, chocolate pie. Bon appetit!




President Obama’s Executive Orders are Constitutional

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Category: Constitutional Law, Immigration Law, President & Executive Branch, Public
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452px-Barack_Obama_basketball_at_Martha's_VineyardA “head fake” is a basketball move where the player holding the ball feints as if starting a jump shot, but never leaves his feet.  Done correctly, it causes the defender to jump off of their feet in anticipation of the shot, arms flailing helplessly.  Meanwhile, the shooter calmly resets and scores a basket while the defender is harmlessly suspended in the air.

Just over two weeks ago, the mid-term elections supposedly signaled the end of President Obama’s ability to drive the policy agenda in Washington.  Last Thursday night, the nation’s “Basketball Player in Chief” executed a brilliant head fake on immigration policy, disproving this conventional wisdom.  Hints that the President intended to “go big” and use his executive authority to conduct an overhaul of the Immigration and Nationality Act had generated anticipatory paroxysms of outrage by Republicans, who hit the airwaves with charges of constitutional violations and threats of impeachment.  However, the executive actions that the President actually announced last Thursday were more modest in scope than what Latino groups and reform advocates wanted, and far less provocative than congressional Republicans feared.

The executive actions on immigration fall well within the Executive Branch’s established authority to set priorities in the enforcement of Immigration Law and clearly within the constitutional power of the President.  Meanwhile, the President’s Republican critics have already committed themselves to a campaign of outrage and indignation, even though it is increasingly evident that they lack a legal basis to attack the President’s actions or a political strategy to undo them.  The President’s head fake is evident when the details of the Executive Orders are examined. Read more »




Immigration Reform and the Challenge of Democratic Self-Government

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Category: Immigration Law, Political Processes & Rhetoric, Public
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Mortar_of_Assimilation_Citizenship_1889News reports indicate that President Obama will soon announce how he plans to use Executive Orders to implement some aspects of Immigration Reform, due to the failure of Congress to address the subject legislatively.  I recently had the opportunity to participate in a program on Immigration Reform at the Law School on November 5, 2014, along with Stuart Anderson, the Executive Director of the National Foundation for American Policy and an Adjunct Scholar at the Cato Institute.  The event was sponsored by the Law School Chapter of the Federalist Society, the Marquette Immigration Law Association, and the International Law Society.  I want to thank Mr. Anderson for sharing his insights with the law students.  Interested readers can click here to find a recent article by Mr. Anderson.  What follows are my prepared remarks.

I have a daughter who is turning 21 next month.  When a child reaches that age, parents start to ask themselves questions.  Will my daughter bring someone home with her one day, and announce that she is engaged?  How will I react if the person she brings home belongs to a different faith?  How will I react if he is of a different race?  How will I react if “he” is a “she?”

These are questions that tap into deep emotions, even if my rational brain tells me that the answers to these questions don’t matter.  I know that my response to such a situation should be compassionate, and loving, and focus on my daughter’s happiness.  But I also know that I may feel threatened or hurt or disappointed, without consciously wanting to.  Maybe part of the problem is that I can’t control who my daughter brings home.  To a certain extent, who becomes a member of my family is her choice, not mine.

Immigration is about membership in our national family.  It raises the same deep emotions that marriage raises within the family.  And just as we can’t always choose who our children will marry, we also can’t always control who joins our national family.  And Immigration policy needs to be rational, data-driven, and compassionate, and not based on knee jerk emotions.

Simple answers to complex social and economic problems don’t work.  One challenge we face as a nation is that we share a longstanding geographic connection with Mexico.  U.S. employers have turned to Mexican citizens for seasonal labor needs for a very long time.  People have established migration patterns that persist through generations of the same family.  These behaviors won’t change just because we tell people to stop.  We need to address the underlying incentives and motivations for these behaviors. Read more »