I spend a good amount of time reading through articles on the latest immigration buzz.  Since this summer, a lot of it has been centered on prosecutorial discretion in civil immigration enforcement. 

On June 17 of this year, Director John Morton of Immigration and Customs Enforcement (ICE) issued a memo meant to set guidelines on exercising prosecutorial discretion.  The June 17 memo, often referred to as “the Morton Memo”, builds on an earlier memo setting enforcement priorities.  The Morton Memo acknowledges that the Department of Homeland Security (DHS) has limited enforcement capacity, and that it should focus its resources on aliens that represent the largest threat toU.S. interests. 

Let’s look a little at the political background of the memo.  Hispanic voters gave President Obama a boost in the 2008 elections, at least in part because he supported a comprehensive immigration reform package (check out this WSJ post).  The president also said he would sign the DREAM Act, which came closest to passage in 2010, but couldn’t get by a filibuster.  

In the meanwhile, the president, who had taken a lot of pressure from the less-immigration crowd, was also expanding enforcement operations.  The Obama administration has greatly expanded Secure Communities, an ICE program where local law enforcements officers provide biometrics of those they book so that they can be checked against the DHS database for immigration violations.  I think the political calculation was that by expanding enforcement, the administration could create a bargaining chip for other reform and at the same time not look too soft on immigration. 

As a result of Secure Communities and other heightened enforcement initiatives, there have been more removals (what we used to call deportations) per year under the Obama administration—close to 400,000 removals per year—than ever before.  As it works out, that hasn’t thrilled the more-immigration crowd, including many Hispanic voters, who had helped out the president in 2008.  I hate to be cynical, but I think that the Morton Memo was meant to try to throw pro-immigration Obama supporters a bone. 

Now keep in mind that I’m an immigration attorney and my views may be skewed.  However, I think the Morton Memo, if it were actually used in a meaningful way, would make a lot of sense.  Even though there have been record numbers of removals the last couple of years, there are still something like 11 million people in the country without legal status—there are just not enough resources to remove everyone who is removable. 

The system is swamped.  Court dockets are ridiculous.  I’ll give an example:  I have a client that was picked up in May 2010.  We went to court earlier this month for the client’s first hearing, which was only a master calendar hearing—basically ten minutes in front of an immigration judge to see if the alien has any defense worth a longer, individual hearing.  My client got an individual hearing in September 2014.  Yikes. 

So the idea of the Morton Memo is that if ICE encounters someone, whether in a workplace raid or in court, who doesn’t pose much of a threat and has been in the country a while (maybe was brought in illegally as a child), that they should, on a case-by-case basis, consider terminating the case.  (Mind, such a termination does not give the alien any legal status—it puts them in immigration limbo, sometimes with permission to work).  With courts so full and such a large pool of removable aliens to choose from, it makes sense to go after the most harmful and least established first. 

In practice, I haven’t seen any change in the way removals are conducted.  Mind you, that is anecdotal, and I only see what happens in the courts—maybe enforcement priorities have changed drastically at the policing level.  But I haven’t seen any numbers that would suggest any change, either.  I’ve read an article about someone who had their removal terminated.  I’ve seen judges ask DHS attorneys it they had considered requests for discretion submitted by respondents—some had, but none had agreed to it.  Today, as I was writing this blog, a colleague emailed me to tell me she had a case continued so that DHS could consider a request for discretion.  But nothing tells me that there has been any major policy shift, at least at the immigration court level. 

This past month, ICE issued another memo, this one mandating that just about all cases DHS has pending in the immigration courts be reviewed to see if discretion, as set by the Morton Memo, would be appropriate.  According to the memo, the initial review is set to end by January 13, 2012 (about two months).  Considering the staggering number of pending removal cases, I don’t expect the initial review will do much more than help DHS realize that any truly meaningful review would have to last years and years.  Maybe this is the foundation of mechanisms needed to make the Morton Memo meaningful, but I’m not holding my breath.

Someone who practices as a barber or cosmetologist without a license “shall be fined not less than $100 nor more than $5,000 or imprisoned for not less than 10 days nor more than 90 days or both.”  Wis. Stat. § 454.16.  Similarly, someone who practices law without a license “shall be fined not less than $50 nor more than $500 or imprisoned not more than one year in the county jail or both, and in addition may be punished as for a contempt.”  Wis. Stat. § 757.30(1).

Granted, the penalties aren’t identical and we can scrutinize the differences.  In any case, it seems a little unsettling to me that the penalty for giving a bad haircut (assuming it’s done without a license) is pretty close to the penalty for a non-lawyer giving bad legal advice.  Let’s face it, hair will grow back, but the harm from getting legal advice from someone who isn’t properly trained can be devastating.

Humor me while I take this analogy a bit further: even if the unlicensed barber delivers the best haircut of your life (perhaps now is a good time to refer to my photograph, email me if you want my stylist’s number (he has a license, by the way)), he is still subject to sanctions under Section 454.16.  However, the Wisconsin Supreme Court has suggested that correct legal advice given by a non-lawyer, at least in relatively simple situations, is protected speech under the First Amendment.  See Hopper v. Madison, 79 Wis.2d 120, 134 (1977).

What’s more, Chapter 454 establishes a whole administrative board to deal with licensing and disciplining cosmetologists, while the unauthorized practice of law (UPL) lacks an effective enforcement mechanism.

The last several years have seen a lot of attempts by the State Bar and other advocates to find a way to effectively regulate UPL.  Unfortunately, it has been a slow process.  In the meantime, more and more people—usually among the most vulnerable—are falling victim to unlicensed practitioners.

In my practice area, I see a lot of the ugly fallout from those who get advice from notarios: non-lawyer notaries public who misuse their designation to present themselves as immigration experts.  However, the problem goes far beyond the immigrant community.

There have been increasing problems with bankruptcy petition preparers.  The bankruptcy code allows non-lawyers to help prepare petitions for debtors, subject to restrictions.  11 U.S.C. § 110.  Often, however, the preparers do not do a good job of informing their clients of what the fee they collect, about $100-$200, covers—debtors enter bankruptcy court unaware that they need to pay a filing fee to the court.  Worse, these debtors may have received poor advice from the preparer, or even thought the preparer was an attorney.  The bankruptcy court can ban deadbeat preparers, but the barred preparers tend to continue their scheme under borrowed or phony names.

Problems also have been reported with online service providers that advertise online help with anything from estate planning to family law.  These providers try to fit their users’ needs into one-size-fits-all forms—a practice that should make any decent lawyer cringe.

While the harms of UPL are serious, efforts to strengthen unauthorized practice mechanisms have been slow—you can get a sense of how things have developed by looking at the UPL policy committee page on the State Bar website here.

State Bar President James Brennan (full disclosure: Brennan is also the Executive Director of Catholic Charities of the Archdiocese of Milwaukee, my employer) wrote on the importance of combating UPL in September.  (His article is available here.)  He suggests that attorneys take pro bono cases for those who have been victimized by UPL.  The idea is that by bringing successful civil cases against unauthorized practitioners, we build a body of case law that will discourage would-be unlicensed practitioners and make future suits easier (hopefully).

The pro bono component of the president’s suggestion is important—we aren’t usually talking about a lot of money, and to create the kind of impact litigation needed, there will be costly appeals.  Still, it seems to be a pro bono investment with the potential for particularly high returns for the legal profession.  First, it helps stop UPL, which is repugnant to the profession.  Second, pro bono is always good for the profession—it looks good when attorneys work to bring justice for those who can’t afford a lawyer.

Perhaps the most appealing aspect of using civil remedies to discourage UPL is that it is something that can be done right now.  As Brennan indicates, there is pending litigation against a notorious notario in the courts now.  The money at stake in the case is small—it started in small claims court—but an outcome for the UPL victim would send a strong message.

Creating effective regulations and enforcement mechanisms is critical in the long-term fight against UPL.  Civil litigation, however, gives us a way to fight the problem today.

Cain’s comment is “The American Dream Deferred: Family Separation and Immigrant Visa Adjudications at U.S. Consulates Abroad.”  He explores the tension between the general preference in American law in favor of keeping families together and some specific requirements of immigration law that can break families apart for many years while a parent or spouse seeks to obtain a visa from an American consulate abroad.  As Cain puts its,

This problem arose with the creation by Congress in 1996 of what are known as the unlawful presence bars to admission.  After more than ten years since the passage of the unlawful presence bars, it is now appropriate to look closely at their impact and examine whether they constitute sound public policy. This Comment argues that they do not. This Comment explains how the system puts families through unnecessary and unjustifiable hardship by imposing a punishment that is disproportionate to the seriousness of the immigration violation. This Comment points to the lack of evidence that the unlawful presence bars significantly deter illegal immigration, and the fact that they tear families apart or force them to move abroad. For these reasons, this Comment recommends that Congress make sensible changes that will promote family unity while imposing penalties that are more proportionate to the seriousness of the immigration violation.

Gabe’s comments is “That the Waters Shall Be Forever Free: Navigating Wisconsin’s Obligations Under the Public Trust Doctrine and the Great Lakes Compact.”  Gabe grapples with a local issue that may set an important precedent with national and even international significance: Waukesha’s efforts to obtain access to drinking water from Lake Michigan.  More specifically, Gabe considers how Wisconsin’s public trust doctrine might be applied to the issue.  Here is his abstract:

The implementation of the Great Lakes Compact stands to be a true “watershed” event in the protection of water resources in and around the Great Lakes. Nowhere is the administration of the Compact and its narrow exceptions more relevant now than in Wisconsin, where the city of Waukesha is preparing to submit the first request for an out-of-basin diversion under the Compact. The contentiousness of Waukesha’s diversion request is amplified by Wisconsin’s long tradition of strong natural resource protections, particularly by the operation of the public trust doctrine. That doctrine has been liberally construed, and extends protections to the public’s right to use waters of the state for numerous purposes, including navigation, recreation, fishing, and even for the enjoyment of natural beauty.

Given the broad scope of the public trust, however, officials and residents of water-poor Waukesha could assert that the doctrine guarantees access to the waters of the state for the purpose of securing safe drinking water. If the public trust doctrine is construed to ensure access for drinking water, then, under the Compact, a denial of a diversion for Waukesha would be in derogation of those state-based water rights; the Compact, however, explicitly disavows any such interference with state water rights. Thus, as the Wisconsin Department of Natural Resources prepares to address Waukesha’s pending application and Wisconsin courts continue to define the scope of the public trust, interested parties await resolution of this potential conflict, which stands to address whether, and how, Wisconsin’s waters will remain “forever free.”

One of my subject areas is refugee law. There are only a handful of Supreme Court decisions in the area, but instead of making the selection easier, the paucity of case law only made it harder to choose one case as the “most” important.  Because the Court has interpreted the Refugee Act relatively rarely, each of its decisions in the area has taken on even more significance than it might otherwise have had.  For instance, it is difficult to overstate the impact of the decision in Sale v. Haitian Centers Council, Inc., the repercussions of which still plague the international refugee law system, because the Court said that the United States could stop and return Haitians at sea, without verifying whether they were refugees, seemingly in direct conflict with the highest principle of international refugee law, “non-refoulement,” or, “non-returning,” of refugees. And what about the pair of cases, INS v. Stevic and INS v. Cardoza-Fonseca, which, prior to Sale, held that the Refugee Act  created two distinct categories of refugees, those whom the U.S. had promised not to return to their persecutors and those whom the U.S. could, in its discretion, allow to stay in the U.S. (a distinction generally not recognized by any of the other nations who signed the refugee treaties)?

In the end, of course, it’s impossible to identify a single case as most important. But I decided to write about INS v. Elias-Zacarias, 502 U.S. 478 (1992), because its holding, that an asylum applicant must provide direct or circumstantial evidence establishing the alleged persecutor’s motivations, has had such dramatic, and (I hope) unintentional impacts on refugee law and practice in the United States.  One could even argue that the extreme disparities in judges’ decisions in similar asylum cases stem, at least in part, from the near-impossibility of reliably applying Elias-Zacarias‘s demand for evidence of the persecutor’s motive, in the context of the record that can reasonably be developed in the vast majority of asylum cases.

I am starting with a short, oversimplified discussion of refugee law, for context; if you already know the basics of refugee law, skip this paragraph.  In the wake of World War II, most of the nations of the world signed on to a pair of treaties that defined a refugee as (essentially–remember, I’m oversimplifying) someone who “owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.”  The United States eventually agreed to the treaty, and in 1980 Congress passed legislation that adopted a virtually-identical definition of “refugee”: “any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . .”   8 U.S.C. § 1101(a)(42)(A).  The U.S. law further provided that an alien who met the “refugee” definition could (subject to a number of limitations not relevant here) be granted permission to stay in the United States, as an “asylee.” See 8 U.S.C. § 1158.

The majority opinion in INS v. Elias-Zacarias, written by Justice Scalia, in interpreting of the words “on account of . . . political opinion,” upheld the denial of an asylum application filed by a young Guatemalan, Jairo Jonathan Elias-Zacarias.  Jairo sought asylum in the United States after a group of armed, masked guerrillas visited his home in late January 1987, asking him to join their cause.  When he refused to join them, the guerrillas said that Jairo should “think it over” and that they would return.  Jairo fled his country in late March 1987.

The Immigration Judge found Jairo to be a credible witness, and (notwithstanding a side dispute as to whether the State Department had conceded that guerrillas in Guatemala were engaging in forced recruitment) there was no real question as to the plausibility of Jairo’s fear, given the conditions in Guatemala at that time.  In its holding, the Court assumed that Jairo might, indeed, be killed by the guerrillas if he returned to Guatemala but refused to join them.

Instead of questioning the plausibility of Jairo’s fear of being killed, the Court reasoned that, in any event, even if Jairo was right to fear that the guerrillas would kill him if he refused to join, he was not a “refugee,” because he couldn’t establish that the guerrillas’ threats were “on account of” any political motive.  This holding is set forth in two paragraphs near the end of the majority opinion:

Elias-Zacarias appears to argue that not taking sides with any political faction is itself the affirmative expression of a political opinion. That seems to us not ordinarily so, since we do not agree with the dissent that only a “narrow, grudging construction of the concept of ‘political opinion,’” . . . would distinguish it from such quite different concepts as indifference, indecisiveness, and risk averseness. But we need not decide whether the evidence compels the conclusion that Elias-Zacarias held a political opinion. Even if it does, Elias-Zacarias still has to establish that the record also compels the conclusion that he has a “well-founded fear” that the guerrillas will persecute him because of that political opinion, rather than because of his refusal to fight with them. He has not done so with the degree of clarity necessary to permit reversal of a BIA finding to the contrary; indeed, he has not done so at all.

Elias-Zacarias objects that he cannot be expected to provide direct proof of his persecutors’ motives. We do not require that. But since the statute makes motive critical, he must provide some evidence of it, direct or circumstantial. And if he seeks to obtain judicial reversal of the BIA’s determination, he must show that the evidence he presented was [footnote omitted] so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. That he has not done.

Elias-Zacarias, 502 U.S. at 483-84.  Many commentators found that reasoning unpersuasive, and if a student had written those paragraphs in a memo in one of my legal writing classes, I think I would have commented something to the effect of, “conclusory, unpersuasive–avoids the other side’s argument, justify your reasoning with more thorough explanation.” The three dissenting Justices (Stevens, Blackmun, and O’Connor) were particularly incredulous of the majority’s assertion that Jairo had failed to provide any evidence of that the guerrillas  had a political motive:

It follows as night follows day that the guerrillas’ implied threat to “take” him or to “kill” [Jairo]if he did not change his position constituted threatened persecution “on account of” that political opinion. As the Court of Appeals explained in Bolanos- Hernandez:

“It does not matter to the persecutors what the individual’s motivation is. The guerrillas in EI Salvador do not inquire into the reasoning process of those who insist on remaining neutral and refuse to join their cause. They are concerned only with an act that constitutes an overt manifestation of a political opinion. Persecution because of that overt manifestation is persecution because of a political opinion.” 767 F. 2d, at 1287.

It is important to emphasize that the statute does not require that an applicant for asylum prove exactly why his persecutors would act against him; it only requires him to show that he has a “well-founded fear of persecution on account of . . . political opinion.” . . . Because respondent expressed a political opinion by refusing to join the guerrillas, and they responded by threatening to “take” or to “kill” him if he did not change his mind, his fear that the guerrillas will persecute him on account of his political opinion is well founded. [footnotes omitted]

Given the context in which the refugee treaties were negotiated and drafted, I find the dissent’s statutory interpretation argument more convincing.  It seems most likely to me that the drafters would have considered a human being who fled from forcible recruitment by a rebel army that his government couldn’t control to be a “refugee,” given the reasonable likelihood that the guerrillas would actually carry out the implied threat of execution.

While the majority opinion’s disdain for the importance of addressing the other side’s best arguments is disappointing, the opinion’s rhetorical failings are relatively unimportant. Instead what’s most troubling about the majority opinion in Elias-Zacarias is its very concrete, practical impact upon an alien attempting to establish his or her status as a “refugee.”  I ask my students to imagine themselves as lawyers representing an alien like Jairo after the Court’s decision in Elias-Zacarias.  What can you do?  Is there any reliable way to succeed with a case like Jairo’s after this decision?

It is true that in a few types of cases, the persecutor’s motivation will be obvious and easy to prove.  For instance, anti-Semitic statements made during persecution would (seemingly) unequivocally establish a persecutor’s anti-religious motivation.  Likewise, the government’s imprisoning of the leader of a peaceful, opposing political party on grounds of  danger to the State would probably establish an express political motive.

The trouble is that nowadays, most of the human beings who are forced to flee their homelands due to fear of imprisonment, torture, or death escape from confusing situations of civil strife and state failure.  Like Jairo in 1987, many of them are caught between two or more extremist groups, the government on the one hand and one or more rebel groups on the other.  Unless they are “lucky” enough to fall into an ethnic or social group that news reports establish has been specifically targeted, they will be deemed mere victims of “generalized civil strife” rather than “refugees.”

The practical reason for denying refugee status to those fleeing civil war is obvious; it’s the fear of “opening the floodgates” to the thousands of human beings who typically flee from situations of civil strife or state failure.  But while the particular legal justification that the Court used to “bar” the gates (heightening the refugee’s burden to establish the persecutor’s motives) has indeed barred thousands of refugees’ claims, this result was achieved by sanctioning an arbitrary, unpredictable decision-making process in the immigration courts.

Because of the procedural posture in Elias-Zacarias, the majority had the luxury to side-step the really difficult question presented by the case:  how in the world is a judge in an immigration court in some office building in the United States supposed to assess, based on an asylum seeker’s testimony and documentary evidence, a far-away persecutor’s particular motives for targeting the applicant? As the Court noted, the decision in Jairo’s case could not be overturned unless the evidence was “so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.”  The majority’s ultimate holding was, essentially, “well, even if the guerrillas did target Jairo because of his politics, he didn’t prove that conclusively here.” In other words, the majority didn’t even hold that Jairo’s evidence was insufficient to establish that the guerrillas had a political motive; instead, the Court assumed, without deciding, that in Jairo’s case, the court below could have decided either way.

Nowhere in the majority opinion does the Court express any concern for the prospect that a human being’s physical safety, even his or her life, would in the majority of cases depend on a fact-finder’s determination of whether he or she had sufficiently proved via “direct or circumstantial evidence,” the persecutor’s specific intent.  It should surprise no one that, under this standard (and, obviously, in the context of numerous other factors including the crushing caseload faced by our immigration judges) the result has been what a 2007 law review article labeled “refugee roulette.” The majority opinion in Elias-Zacarias affirmatively sanctioned such a state of affairs.

There is plenty of room for debate about the goals of refugee law, and the proper means for achieving them.  Indeed, the need for strong, serious debate about these issues is pressing, given the failings of the current legal regime governing protection for forced migrants.  But no matter how narrow one thinks the definition of “refugee” should be, surely, it should be narrowed on some fairer and more consistent basis than the holding in Elias-Zacarias.

My contribution this week to our “best of the blogs” feature (which I have taken license to interpret as “best of the blogs and other news read online…”) is even more random than usual.

First, the drug-related story that caught my eye in the relatively recent past.  The Daily Beast Cheat Sheet reported on September 27th about a Cato Institute study showing that since Portugal decriminalized drug possession in 2001, drug use among adolescents has fallen, HIV infection rates fell, and addicts have increasingly sought help to overcome their addictions.  The full story was in Time, here. An excerpt:

The Cato paper reports that between 2001 and 2006 in Portugal, rates of lifetime use of any illegal drug among seventh through ninth graders fell from 14.1% to 10.6%; drug use in older teens also declined. Lifetime heroin use among 16-to-18-year-olds fell from 2.5% to 1.8% (although there was a slight increase in marijuana use in that age group). New HIV infections in drug users fell by 17% between 1999 and 2003, and deaths related to heroin and similar drugs were cut by more than half. In addition, the number of people on methadone and buprenorphine treatment for drug addiction rose to 14,877 from 6,040, after decriminalization, and money saved on enforcement allowed for increased funding of drug-free treatment as well.

The article notes that U.S. policymakers are taking notice of Portugal’s experience, especially in view of the spiking violence related to the drug trade in the U.S.-Mexico border region.  If you are interested in news and analysis of the situation in Mexico, you may want to read this piece in the New York Times.

It wouldn’t be a Jessica-Slavin-best-of-the-blogs post without some reference to an immigration-related story, would it?  The blogosphere took notice (and in some cases, an unfortunate degree of schadenfreude) of the Nation’s report that Lou Dobbs, well known for his concerns about the number of undocumented immigrants working in the United States, himself “has relied for years on undocumented labor for the upkeep of his multimillion-dollar estates and the horses he keeps for his 22-year-old daughter, Hillary, a champion show jumper.”

The title of the article labels Dobbs a hypocrite, but that kind of name-calling seems distracting and beside the point.  The larger and more important consideration that Dobbs’ situation highlights, to me, is how the attempt to brush this segment of our society out of the political picture with the label “illegal” is doomed, eventually, to failure, because it ignores reality:  these so-called “illegal” immigrants are deeply integrated into U.S. communities and the U.S. economy, to our mutual benefit.

Now, finally, the promised “death ray” story!  Engadget reported about the Vdara hotel on the Las Vegas strip and the unfortunately unforeseen side effect of its distinctive “curved mirror” design in the hot desert sun.  ABC News quoted one victim’s experience:

“I’m sitting there in the chair and all of the sudden my hair and the top of my head are burning,” Pintas told ABC News. “I’m rubbing my head and it felt like a chemical burn. I couldn’t imagine what it could be.”

It turns out that what Pintas felt was, as a reporter on a video on the ABC site called it, “laser-like beams” created when the hotel windows focus the sunlight and reflect it into the hotel’s outdoor pool area.

The ABC video includes footage of a plastic cup melted by the heat.  I am already dreaming of a legal writing problem focused on the potential legal claims that could arise from the unintended “death ray” effect created by this type of window….

The increased success rate is surely due to the fact that more asylum seekers are finding legal representation:  as the study explains, unrepresented asylum seekers have a success rate of about 11%, while those with attorneys have about a 54% chance of winning asylum.  The study also shows that the dramatic disparities in grant rates by different judges continues (e.g., in the New York Immigration Court, judges’ asylum grant rates ranged from 6% to 70%).

In any event, the other statistics referred to in that WSJ Law Blog post are from a Pew Hispanic Center study showing a dramatic decline in the population of undocumented immigrants in the United States over the past few years.   ImmigrationProf’s take on this data is that “It’s the (Labor) Market, Stupid.” In related news, Edward Schumacher at the Washington Post shared data that he received from the chief actuary of the Social Security Administration that undocumented immigrants’ contributions to Social Security  represent between 5.4 and 10.7 % of the fund’s total assets, roughly twice as much as previous estimates.  The decline in the undocumented population thus increases the Social Security trust fund’s solvency crisis.

There were a few other interesting legal developments in immigration law this week.  The Ninth Circuit, in a 2-1 decision, overturned the conviction of a humanitarian border activist, who had been convicted of littering because he left water in the Arizona desert, in an effort to prevent migrants from dying of thirst.  As the court explained,

Millis concede[d] that he placed water on refuge trails, but argue[d] that his conduct did not violate § 27.94(a) because the bottles of purified water did not constitute “garbage, refuse, sewage, sludge, earth, rocks, or other debris” within the meaning of the regulation. The United States counter[ed] that the bottles constitute “garbage.”

The majority, applying the rule of lenity and the ordinary meaning of the word “garbage,” decided that it was ambiguous whether jugs of water left for human beings to drink in the desert were “garbage,” and therefore threw out the charges.  The dissenter, Judge Jay Bybee would have upheld the conviction, unconvinced that there was any ambiguity as to whether leaving the bottles of drinking water in the desert was “littering” or the discarding of “garbage.”  David Luban over at Balkinization couldn’t help but point out that this same Jay Bybee “thinks that terms like ‘torture’ and ‘severe suffering’ are so vague that it would be unfair to apply statutes prohibiting them to interrogators who waterboard people and keep them awake for a week at a time, naked and hanging in chains.”

And I cannot help but point out that 170 human beings have already died trying to cross the border this year, mostly due to heat-related illness.

In other news, there were a couple more skirmishes in what seems to be a brewing battle over the vitality of Plyler v. Doe.  Seton Hall University Law School’s Center for Social Justice filed an amendment to its claim against the state of New Jersey for its new policies eliminating Medicaid benefits for some legal immigrants. And the DOJ reportedly has sued a network of Arizona community colleges because they required noncitizens to provide their green cards in order to be eligible for hiring.

Finally, a busy week for the DOJ:  the agency just filed a new lawsuit against Sheriff Joe Arpaio, seeking declaratory and injunctive relief forcing the Sheriff to cooperate with the DOJ’s investigation into national origin discrimination that allegedly pervades the Sheriff’s police and jail operations.

If you read this blog regularly, you will not be surprised to learn that abolishing birthright American citizenship seems like a terrible idea to me.   One more sally in the current  assault against immigrants, against the “other,” along with the police checkpoints for schoolchildren walking to school near the border, the Arizona law, the “deportation madness,” and the opposition to building mosques.  What’s more, it would be a terrible development for our society, a recipe to increase crime and instability, by enlarging and making permanent the underground world of people who reside here, even were born here, but are afraid to interact with the legitimate authorities and institutions of our society.

One of the more interesting blog posts about the Fourteenth Amendment controversy was posted by three law professors (Paul Finkelman, James Anaya, and Gabriel Chin) at the Huffington Post a couple of days ago.   They offer strong, well-supported historical, legal, and political arguments against the proposal.  But what’s most striking is their personal appeal–each of these professors is himself the grandchild of undocumented immigrants.  They write,

We are struck by what the absence of birth citizenship might have meant for our parents and us, and what it might mean for others in the future. Looming is the caste problem — if the children of undocumented immigrants are not citizens, then perhaps their grandchildren and great-grandchildren are not citizens either.

This admission is a rather dramatic rhetorical move, coming from law professors in the United States.  We lawyers are trained to do just the opposite, for the most part — to craft powerful legal arguments that give the audience an image of the worst consequences of the law we oppose, while avoiding any personal or individual connection to those consequences.   So the post is interesting from a rhetorical point of view.  The historical and legal argument is strong too, though:

In the past, America has come to regret policies denying citizenship to particular groups, policies like Dred Scott, and the racial tests for naturalized citizenship in force from 1790 to 1952. These policies always rested on the idea that some immigrants — almost always non-white — would not make good citizens. Doubt about the ability of the United States to take in and benefit from every branch of the human family has always been proved wrong, and, we have no doubt, will be here as well.

I came upon another post in the same vein this week, a video on youtube, actually an 1947 U.S. War Department-produced video called “Don’t Be a Sucker” (you can see the original in the internet archive).  The youtube poster has tacked the image of a waving American flag and an admonition to “Never Forget We Are Nothing Without Equality” at the end of the War Department PSA, an addition that actually fits fairly well with the video’s heavy-handed tone.

*The terrific Deportation Madness art accompanying this post is used by permission of the artist Dmitri Jackson and the Texas Observer, where it accompanied an article with the same title, written by Melissa Delbosque.

Mark Tushnet (who gave a terrific presentation at Marquette last week, co-sponsored by the student American Constitution Society organization and the local lawyer’s chapter of ACS) raises some interesting questions about Republican-sponsored legislation that would require congressional review of proposed “major regulations.” The idea is that agency rules would be transformed into agency proposals, to be okayed by Congress.  For “non-major” proposals, Congressional silence would equal assent, while majority votes of both chambers would be required for adoption of new “major regulations.”  

His first post questioned how this scheme could be reconciled with Chadha, but his second one noted that the statute would have the effect of repealing all agency authority to adopt major rules, converting it to authority to convert rules into proposals.  He suggests there may remain a constitutional problem, because even if this is the intended effect, “the statutory language sure doesn’t look on its face as if that’s what’s going on.”

Finally, as usual, most of my blog reading has focused on ImmigrationProfs Blog.  One interesting entry this week highlighted a video produced by CNN on the subject of the deportation of citizens, which the expert interviewed estimates happens at the rate of one citizen a day.

That news report was prompted by the then-impending effective date of the Arizona law SB1070, which, you may have heard, has recently faced significant legal hurdles, with the Government’s preemption arguing succeeding in part.

Paul objects to federal policies regulating business due to his reading of the U.S. Constitution.  His political philosophy might best be characterized as extreme libertarianism.  Following the objectivist principles of Ayn Rand, he argues that the public should be left to their own devices and that greater social benefits will accrue naturally over time from the enlightened (and rational) self-interest of individuals.  Ironically, Paul’s embrace of self-interest as a moral good in itself is directly at odds with the view of the Framers of the Constitution.  The people who designed our constitutional system spent much time criticizing the biases, prejudices, and self-interested motivations of the general public.  The system of government that they created was intended to ameliorate the very aspects of human nature that objectivists like Rand Paul celebrate.

In fact, it is difficult to find a historical basis for Rand Paul’s vision of the U.S. Constitution.  In 1789, the Framers believed that state legislatures had been captured by parochial commercial interests who wielded power in favor of a self-interested and growing “middling” class.  It was the hope of James Madison that “disinterested” elites would come to dominate politics in the federal government, where they would promote policies that promoted the common good rather than narrow economic interests.  John Adams seemed resigned to the idea that an aristocracy of sorts would become necessary in the new republic in order to ensure that laws were enacted in the public interest and that the machinery of representative democracy was not corrupted for selfish ends.  Neither man was optimistic that any good would result if the general public was left to its own devices.  

The Framers would have had little difficulty accepting the idea that the federal regulation of business entities promotes the common good of the nation, in ways that state laws or the private market do not.  In a recent post, Professor Michael McChrystal discussed the classic objective of tort law to ensure that responsible parties will bear the economic costs for injuries that they cause.  However, at best tort law is an attempt to remedy injuries that have already occurred.  In contrast, the federal regulation of business entities is often intended to prevent business entities from imposing costs on third parties in the first place.

Economic theory is helpful here.  As defined by Professor Paul Johnson in A Glossary of Political Economy Terms, “[a]n externality exists whenever one individual’s actions affect the well-being of another individual — whether for the better or for the worse — in ways that need not be paid for according to the existing definition of property rights in the society. “

Business entities can maximize their profitability to the extent that existing law allows them to externalize their costs, thereby forcing third parties to bear some of the costs of production for the business’ good or service.  For example, a cardboard box producer that dumps chemicals used in the manufacture of its boxes into the environment, without paying for the safe disposal of those chemicals, has externalized its costs of production to the extent that the community surrounding the factory is impacted by the dumping.

 When political commentators charge that liberals believe that the government is capable of solving problems, whereas conservatives believe that government is the problem, they are referring to the fact that political liberals tend to see government regulation of the marketplace as a vehicle for reducing the negative externalities that would exist in an unregulated market.   Liberals accept the premise that society in general has an interest in limiting externalities through government regulation of the marketplace.  It follows, therefore, that liberals tend to view deregulation with suspicion as little more than a policy preference designed to allow business entities to externalize their costs. 

Politics is the realm of interest groups, not economists, so it is a given that any attempt to limit externalities through government regulation will at best approximate the identification of the precise costs imposed by externalities and the exact identity of those third parties who would otherwise bear those costs.  To recognize that a system of regulation is imperfect in economic terms is not the same as saying that deregulation would be preferable.  Rather, what is important is to never lose sight of the fact that all government regulation of the marketplace is essentially a political act.  The voters ultimately get to define what constitutes an externality, not economists.

Justice Jackson made this point in Wickard v. Filburn, the seminal case relating to the power of Congress to pass New Deal legislation (and espousing a limited role for the Supreme Court in second guessing Congress’ regulatory choices):   

“It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated, and that advantages from the regulation commonly fall to others. The conflicts of economic interest between the regulated and those who advantage by it are wisely left under our system to resolution by the Congress under its more flexible and responsible legislative process.  Such conflicts rarely lend themselves to judicial determination.”

Rand Paul is fond of criticizing the Wickard v. Filburn decision in his stump speeches at tea-party gatherings around the country.

None of us should be surprised if business interests selfishly try to push externalities off on others.  Nor should we be surprised if the general public pushes back, and adopts federal regulation as a means to force business interests to bear their own costs.  We see this policy debate unfold before us every day.  Consider three recent examples:

The financial reform bill soon to be signed by President Obama seeks to address externalities in the financial services industry.  During the financial meltdown in 2008, the federal government was forced to use taxpayer dollars in order to prop up investment banks and insurance companies because those financial firms had made disastrous market bets that put their future survival at risk.  Had the federal government failed to act, the result would have been a collapse of the credit markets, the inability of homebuyers to get mortgages, and the lack of buyers for the commercial paper that large employers rely on to fund current operations.  The freedom of financial institutions to make overleveraged market bets clearly imposed external costs on the credit markets and, by extension, on everyone who relies upon credit.       

The congressional overhaul of financial regulation does not go so far as to reinstitute the Glass-Steagall Act, as some had advocated.  That would have forced investment banks to segregate funds held by commercial banks, so that bankers could not use the public’s savings accounts as a source of funds to play the market.  Whether or not the repeal of Glass-Steagall in 1999 was a mistake, the consolidation of integrated financial services companies that has occurred over the last decade makes unscrambling this particular egg an impractical task.

Instead, the final version of the overhaul bill will increase minimum capital requirements, so that investment banks must keep a larger cash “cushion,” and will also likely include the “Volker Rule” banning proprietary trading (the practice where investment banks use their own money to make market bets), thereby limiting financial firms to trades made on behalf of clients.  Derivatives trading is now viewed as so risky an enterprise that the Senate version of the bill bans banking companies from derivatives trading altogether while the House stops at requiring such trades to be insured and to take place on public exchanges.  If anything, critics charge that the overhaul bill does not go far enough to reduce the risk of a future financial meltdown.        

Health care reform, as enacted this past March in the Patient Protection and Affordable Care Act, is another example of federal regulation intended (at least in part) to address externalities.  The requirement that all individuals purchase private health insurance is often cited by critics as an example of the federal government overreaching its constitutional bounds.  However, supporters of an individual mandate argue that it is helpful in reducing the public cost incurred when the uninsured use expensive emergency room services rather than the cheaper alternatives available to the insured population.  Opponents of the individual mandate dispute the relative significance of these externalities in the context of the size of the entire health care market.  However, if the general public believes that these externalities are contributing to the rising cost of health care for the insured, then it is difficult to argue that their representatives are powerless to address them.        

Even the ongoing debate over illegal immigration in Arizona can be viewed as a local reaction to the federal government’s failure to deal with the externalities imposed by the employment of undocumented workers.  The current system of immigration legislation tolerates the existence of an undocumented workforce that some estimate at over 11 million people.  Employers (and consumers) across the nation take advantage of the cheap labor that these workers provide.  However, taxpayers in the states along the U.S.-Mexico border bear the economic brunt of this toleration, in the form of higher costs for education, emergency health care, and public safety.  Arizona’s choice to make an individual’s illegal presence in the state a crime is born out of a frustration that the current federal immigration laws do not spread the social costs of illegal immigration on an equal basis to employers and taxpayers across the nation.    

As Justice Jackson alluded to in Wickard v. Filburn, lawmaking through the political process is how the public allocates the costs of behavior in order to reduce externalities.  When voters argue over the best way in which to allocate these costs, they are engaging in a policy debate.  Rand Paul and his fellow “Constitutionalists” seek to turn this policy debate into a more basic constitutional question.  What is left unaddressed is the moral dimension of this debate: do we as a society have a moral obligation to use the political process in order to reduce externalities that powerful interest groups would otherwise impose on the less well organized (and less well funded) segments of our society?  A liberal might answer “yes” to this question; I suspect that an extreme libertarian along the lines of Rand Paul would answer “no.”

His rhetorical approach was really effective, I think, so I am going to copy it: starting with a concession to gain your trust, before pointing out the flaw I see in Rick’s argument.

First concession:  I agree in principle that “[m]ass opposition to disfavored legislation and politicians is fine as long as it is accurate and temperate.”  I also agree wholeheartedly that political arguments these days are just about as likely to devolve into irrational hysteria, closed-mindedness, and outright bias on the left as on the right.

One example that comes to mind is the debate about the merits of nuclear power.  Though I tend to agree that maybe nuclear power isn’t so bad after all (or that at least, scientists should figure that out rather than unthinkingly conflating nuclear energy with nuclear weapons), the anti-nuclear power arguments are so fervent that I was hesitant to even admit to that opinion in this public forum.

And I agree with Rick’s argument about the protests about the Arizona law to the extent that anyone has said that they make Arizona “evocative of Nazi Germany and Communist Russia.”

But calling the Arizona law “racist” or “hysterical nativism”?  I don’t think analogizing these labels to “socialized medicine” or “death panels” is accurate.  As the foreign-born Governor of California recently (jokingly) pointed out, the Arizona law does put anyone with a foreign accent at risk of being detained and deported on suspicion of being a non-citizen. So, while Rick is right that it’s true that non-resident aliens are required to “carry documentation at all times,” that’s beside the point.  The trouble is that in practice, on what basis will the Arizona law enforcement officials form the reasonable suspicion that someone is an alien, instead of a citizen?   What else will they have to rely upon, besides skin color, other physical characteristics, and accented speech?  Those oval white country code bumper stickers?

Thus, the situation in Arizona, for those citizens who bear the characteristics that might lead Arizona law enforcement officers to suspect they are not citizens, does seem undeniably “nativistic.”  Indeed, while I wouldn’t make a broad analogy to the atrocities of Communist Russia, the travel situation for those folks in Arizona does seem, to this former Russian and Soviet Studies student, quite similar to the travel situation in the former Soviet Union; you’d better have your papers with you.  If the Arizona law were to be enforced as its plain language permits, some United States citizens, those who match whatever criteria the Arizona officers think creates a reasonable suspicion of “being an alien,” will need, basically, internal passports.

Indeed, even without the sort of stamp of approval that Arizona’s legislature has passed, those folks would probably already be wise to carry around their proof of citizenship.  Many citizens of the United States are already being wrongfully arrested, detained, and even deported, based upon immigration officials’ erroneous conclusion that they are non-citizens.  In fact, right here in Wisconsin, a McHenry county man has recently filed suit against law enforcement officers there, claiming that they falsely imprisoned him on suspicion that he was an illegal immigrant, refusing to release him even when his brother came to the jail with his naturalization certificate.  It cannot be a surprise to anybody that the citizens suffering these harms are, disproportionately, non-white.

In summary, I welcome conversation about the tone of political conversations these days.  I am a fan of really listening to the other side.  But once in a while, a law actually is racist and nativist, and I think the Arizona law is undeniably one of those.

But the folks on the left also had a point. Although one cannot expect mass political movements to be marked by the dispassionate and, we hope, carefully reasoned discourse to be heard in the court room or lecture hall, supporters of the health care bill argued (with some justification) that the over the top rhetoric obscured rather than clarified. Tea parties, they said and still say, are exercises in political hysteria and ignorance in which honest differences of opinion are turned into existential conflict and ordinary political opponents are portrayed as extraordinarily evil. Mass opposition to disfavored legislation and politicians is fine as long as it is accurate and temperate. This is what they say.

Except when they don’t.

I am not overly enamored with the prospects for Arizona’s so-called Support Our Law Enforcement and Safe Neighborhoods Act. My initial reaction is to call for an immediate and unforgiving ban on self congratulatory and tendentious titles for legislation. I mean it. Zero tolerance.

My second reaction is that, as an effort to reduce illegal immigration, the law is probably futile. It seems to me that we may  – with some substantial difficulty – be able to reduce illegal entries at the border or reduce demand by making it difficult to employ those who are here illegally(although efforts to date have been ineffective). But rounding up people after they have crossed the border and moved across the country is a bit like trying to reassemble a shattered bottle. It would, in any event, require far more intrusive regulation than Arizona contemplates. The state – which bears a disproportionate burden from what is rather schizophrenic national policy - is trying to make a point about federal inaction. I don’t know if this legislation can do  anymore than that.

My final – and lasting –  reaction is that the response to the bill is just as over the top as the most silly Tea Party. We are told, it is “racist,” “hysterical nativism,” and evocative of Nazi Germany and Communist Russia. It is cause, we hear, to read Arizona out of the civilized community.

But, near as I can tell, the law (or, at least, that part which draws the most attention) gives Arizona law enforcement no power that the federal government  does not already possess. In fact, the bill seems to have been written to be consistent with federal law so as to avoid the preemption problems that doomed more restrictive state immigration laws in California. If the law legalizes racial profiling or “outlaws Hispanics,” Congress did much the same thing years ago. If we are to boycott the Arizona Diamondbacks, we ought to want to ostracize the Washington Nationals as well.

The law might be unconstitutional but, if it is, it is likely because it is preempted by federal law -not that it violates the constitutional rights of individuals, creates a police state or is evocative of Nazi Germany. Yet, in the coverage of Saturday’s protests, I noticed no signs demanding that Arizona respect the sacred doctrine of field preemption. Marchers were not crying out in support of a God given right to be stopped only by agents of the federal government on matters related to the control of our national borders. Paeans were sung to the 4th and 14th amendments, not to the Supremacy clause.

The bill empowers local officials to interrogate persons who are “reasonably suspected” of being in the United States illegally. Frank Rich, who seems to be genuinely convicted of the notion that anyone who believes that a federal government that consumes 18-20% of GDP is “racist” and “hateful,” calls Arizona’s “tilt to the dark side” the “show me your papers law.” But resident aliens are already required to carry documentation at all times. While that requirement does not apply to US citizens, federal law also expressly provides that immigration officials can interrogate and, under certain circumstances, even detain persons who they have reason to believe are in the United States illegally.

Of course, there is a danger, in this context, that a “reasonable suspicion” standard will result in racial profiling. Perhaps that is sufficient reason not to permit stops of this sort. While the Arizona law expressly prohibits racial profiling, that doesn’t guarantee it will not occur.

But federal law  – supported over the years by Democrats and Republicans – permits the same activities and utilizing the same standard. In fact, stops based on “reasonable suspicion” have long been thought to be constitutional (remember Terry v. Ohio) and the ability of federal agents to do so in the context of enforcing the immigration laws has been upheld. There is a developed body of law defining what is and is not reasonable suspicion and it is not simply that a person “looks Hispanic.”* It is not self evident that empowering state law enforcement to do that same things results in a legal regime that is different in kind than that we have lived with for years.

As noted earlier, I think the law a largely futile response prompted by the federal government’s failure to enforce its own laws – a failure that seems to be attributable to ambivalence about (or even opposition to) enforcement of the law, the nasty demagoguery that has grown up around the immigration issue and the extreme difficulty of policing a lengthy border that millions of people have a powerful incentive to cross.

I am not much of a hawk on immigration. I do believe that liberal immigration laws have changed the character of a number of European nations in a way that longstanding residents might reasonably oppose and, in a forthcoming piece in WI Interest, I talk about whether  communities have a right to define themselves through exclusion. But the largely Hispanic immigration into the United States has generally not raised those issues. It has not created serious cultural conflict and, with the possible exception of places like Arizona into which there has been a huge influx of poor persons without the means of survival, it has not resulted in increases in crime. It is, for the most part, an economic issue.

As Professor Fallone argues, it is certainly not blameworthy for persons to want to come to the United States for a better life. But it is not self evident that it is in the interest of the United States – particularly the interest of  low skill workers in the United States – to permit that to happen. I agree that immigration into the United States is a regulatory problem, but regulation may well involve restriction and restriction may require the application of coercive measures to those – including employers seeking to save on labor costs – who will not comply.

What sort of restrictions and enforcement are appropriate is something on which reasonable people may differ. But if the health care debate (and it is not over) is not be furthered by charges of “death panels,” the discussion of immigration reform is not aided by charges of fascism and racism.

These changes to the law may diminish the likelihood that the Arizona state statute will be found to violate the Fourth Amendment and the Equal Protection Clause.  However, the most likely ground for a ruling that the Arizona law violates the Constitution was, and remains, that any state attempt to regulate the border is preempted by the pervasive scheme of federal immigration legislation.  While many observers will anxiously await the outcome of these constitutional challenges, it is important to recognize that there is a separate and more fundamental reason why the Arizona law is a mistake.  The law perpetuates a trend by our elected officials, identified by Professor Jennifer Chacon and others, that mistakenly conflates the criminal law with immigration law.  The convergence between these two separate areas of the law began in the 1990s and gathered momentum after September 11, 2001.  This process needs to be stopped and reversed.

The recent convergence of the criminal law and immigration law can be observed in several areas.  First, both public opinion polls and the rhetoric of politicians have increasingly associated undocumented immigrants with a propensity for criminal conduct, despite the lack of any statistical evidence to support this association.  The recent shooting of a peace officer by drug smugglers in Arizona provides an example.  Early news reports cast the episode as an example of violence by “illegal immigrants.”  The word “immigrant” refers to someone who seeks to change their country of residence.  Marijuana smugglers are not “immigrants” in any sense of the word; all these criminals want to do is deliver their illegal goods to a buyer in the United States and return to Mexico where they can live lavishly and bribe the police to avoid capture.  Allegations that an Arizona police officer was shot by an “illegal immigrant” are not only inflammatory, they reflect a fundamental mischaracterization of what the word “immigrant” means.  Any attempt to associate illegal immigrants with criminal conduct in the minds of the public merely serves to mask the true economic and social issues  that need to be addressed by a sensible system of immigration control.

Second, since the 1990s Congress has increasingly expanded the list of non-immigration related crimes that trigger the subsequent deportation of aliens.  The most notorious example of this is the “aggravated felon” designation.  The appellation “aggravated felon” was originally reserved for aliens that committed serious crimes such as murder and drug trafficking.  However, it has repeatedly been expanded so that it now includes more and less serious offenses, and it also applies retroactively to crimes that would not have led to deportation at the time that they were committed.  As a result, removal from the United States is now the consequence of virtually any non-misdemeanor criminal conviction (and even some misdemeanors).

Third, there has been an increased prosecution of violations of the immigration laws as separate federal crimes, with harsher and more frequent criminal consequences.  For example, illegal re-entry into the country, after having previously been deported, is now a crime punishable by incarceration.  In addition, in the past decade Congress created the federal crime of “aggravated identity theft,” which the Justice Department promptly applied to prosecute undocumented aliens.  The result is that, since 2004, immigration-related prosecutions have topped the list of criminal prosecutions brought in federal court, comprising almost one third (32%) of the total nationally. This is a stunning statistic.

The most obvious result of this convergence of the criminal law with immigration law has been that criminal categories, processes and techniques have been imported wholesale into the enforcement of the immigration laws.  Critics have complained that this process results in the punitive aspects of the criminal law being imported into immigration law, but without any of the accompanying procedural safeguards that protect defendants in the criminal system.  The one aspect of immigration law that most resembles punishment — the identification of individuals subject to forcible removal from the country — has become more severe while at the same time our basic concepts of due process are ignored.

Less appreciated by critics has been the manner in which the convergence of these two areas of the law has worked in reverse.  Last Thursday, I moderated a panel discussion entitled “The Intersection of Criminal and Immigration Laws: Padilla v. Kentucky and Other Recent Decisions of the Supreme Court” at the Annual Meeting of the Eastern District of Wisconsin Bar Association.  The panel included Attorney Maria Baldini-Potermin, Attorney (and proud MU alum) Sara Dill, and AUSA Jonathan Koening.  During our presentation, I was struck by how the Supreme Court’s recent decisions in the Padilla v. Kentucky and Flores-Figueroa v. United States cases interpret criminal law and procedure in a manner that reflects the influence of immigration law.  [Interested readers can order an audio CD of the panel discussion here.] 

Decided just last month, the Padilla v. Kentucky decision  held that defense counsel’s failure to advise a non-citizen of the immigration-related consequences of a criminal plea bargain violated the accused’s Sixth Amendment right to effective assistance of counsel.  The Supreme Court recognized that deportation has become “an integral part” of the penalty that non-citizens face when pleading guilty to a crime.  As a result, criminal defense attorneys now have a constitutional duty to know which criminal convictions lead to removal under the immigration laws, or at least to know those instances where the prospect of removal is sufficiently “succinct and straightforward” under the immigration laws that the client should be informed prior to entering a plea of guilty to a criminal charge.

Significantly, a guilty plea to criminal charges can lead to other types of serious consequences besides removal under the immigration laws.  Criminal convictions can lead to civil commitment, civil forfeiture, loss of voting rights, loss of public benefits and loss of professional licenses.  Does defense counsel also have a constitutional duty to advise clients of these consequences of a guilty plea?  The Supreme Court’s desire to help non-citizens make informed plea bargains may have implications for a great variety of citizen criminal defendants as well.      

 Flores-Figueroa v. United States  involved the interpretation of the federal “aggravated identity theft” statute.  That statute makes it a crime to “knowingly” possess or use ”a means of identification of another person,” with a mandatory two year prison term if convicted.  Federal prosecutors were bringing criminal charges against undocumented workers using fake social security cards, even where the undocumented workers had merely plucked the social security number out of thin air without knowing whether the number belonged to a real person or not.

The Supreme Court ruled that the word “knowingly” should be applied to require proof both that the accused knew that they possessed the false ID and also that the accused knew that the numbers on the ID card belonged to a real person.  The Court was influenced by the fact that a failure to read the word “knowingly” to apply to “another person,” in addition to the possession or use of the ID, would make the imposition of a two year prison sentence turn on whether the undocumented worker was unlucky enough as to select a real social security number when making a fake ID.  Workers lucky enough to choose a number that had not been assigned to a real person could not be charged.

It is not unusual for the Supreme Court to read a mens rea requirement into a criminal statute that lacks one, especially when the failure to do so would allow prosecutors to bring charges in cases involving non-blameworthy conduct.  Examples of prior cases along these lines involve the Court’s interpretation of statutes involving mail fraud, money laundering, and the “innocent” possession of firearms.  However, what is interesting about the Flores-Figueroa decision is that the Court suggests that in the future it will assume that the word “knowingly” used in a criminal statute should be read to apply to all of the elements of the crime.  If this is indeed a new canon of construction that the Court plans to apply across the board in future cases, then the Court’s sympathy for the plight of undocumented workers caught undeservedly in the criminal law may lead to benefits for all sorts of criminal defendants.

Like the Padilla and Flores-Figueroa opinions, the Arizona law is an example of the way in which two formerly separate areas of the law are increasingly blending into one.  Regardless of whether the criminal law is having a greater influence on immigration law, or vice versa, the convergence of these two areas of the law is problematic.

Arizona’s big mistake is not that it chose to trample on the civil rights of one third of its population, although that is a choice that may come back to haunt legislators who supported the bill.  Nor is Arizona’s mistake the embrace of racism, fascism or any other form of “ism,” although there are plenty of unsavory undertones lurking below the surface of this legislation.  The real mistake behind Arizona’s law is the knee-jerk assumption that immigration enforcement can be reduced to a criminal problem, rather than regulated under civil law.

If the federal government continues to make this same mistake as a matter of federal law, by continuing to conflate the criminal law and immigration law, then all of the federalism and preemption arguments in favor of striking down the Arizona state law will count for nothing.  As I argued recently on Wisconsin Public Radio, immigration (in both its legal and illegal forms) is an ongoing economic, social and political phenomenon that needs to be managed so that its benefits and burdens are allocated fairly throughout our nation.  The desire to live and work in our country, even without permission, is not morally blameworthy conduct (as seen in the condemnation of Arizona’s law by many religious leaders).  Moreover, illegal immigration simply cannot be deterred solely through the imposition of criminal sanctions.  Legal avenues for the immigration of unskilled workers, for example, are absolutely necessary in order to decrease illegal immigration.  Blurring the line between criminal law and immigration law does little to address our nation’s immigration problem, other than distracting us from the real solutions.

Non-governmental organizations that work to end the phenomenon of child soldiers call the day “Red Hand Day”, and the photo above shows activities in Goma, in Congo DR, marking Red Hand Day in 2008.

An open debate on children and armed conflict in the Security Council last April raised interesting issues.  Radhika Coomaraswamy, the Secretary General’s Special Representative for the issue of children and armed conflict emphasized that the abuse and exploitation of children during armed conflict goes far beyond their recruitment as fighters:

Ideally, the list of the Secretary-General should include all grave violations against children to ensure that the framework for protecting children in situations of armed conflict is comprehensive. However, expectations do not always match realities, and therefore, the UN and its partners have chosen to call upon the Council to take a gradualist path for the expansion of the protection framework for children. This is why the child protection community is unanimously calling on the Council to begin, at a minimum, with expanding the listing criteria to include parties that commit rape and other grave sexual violence against children as a first step in this incremental approach. The inclusion of killing and maiming of children in line with international humanitarian law would also be an important contribution to protecting children. This would be a critical step forward, recognizing that sexual violence and intentional killing and maiming are  heinous crimes on par with the recruitment and use of children.

As I was writing this blog post this morning, my six-year-old son asked me what the people in the photo above were doing.  I explained that they were working together to stop the use of child soldiers.   He asked, “Child soldiers?  How could an army get child soldiers?  They could go to the child and say, “excuse me, we would like you to help us with our fighting please,” but the child could just say, “No, thank you.”  I explained the use of violence to force children (and other people) to do things they don’t want to do.

In my refugee law seminar, we have been discussing the status of child soldiers in refugee law.  As another blog post sums up, child soldiers are in a double bind.  First, they often have trouble proving their status as refugees, because their status as “children” is fleeting.  If you survive your life as a child soldier, you become an adult, probably a former child soldier.  And unless you can show that you face persecution on account of your status as a former child soldier, you do not fit the legal definition of a “refugee.”  Furthermore, under U.S. law, your actions as a child soldier will surely qualify as persecution of others, or terrorism, or at least material support for terrorism, making you ineligible for refugee protection, unless you receive a discretionary waiver of that bar.  It is discouraging, how quickly the law’s empathy for children’s vulnerability and exploitation changes, once the children become adults.

A popular bookstore and cafe near Yale University wants its many Hispanic employees to speak only English around customers, sparking controversy in immigrant-friendly New Haven, where students fight for immigrant rights.

Atticus Bookstore and Cafe recently issued a policy stating that English should be the only language spoken on the floor and behind the counter. ”Spanish is allowed in the prep area, the dishwasher area and the lower level. Let’s make our customers feel welcome and comfortable,” the policy states, according to New Haven Workers Association, a group of activists who said employees gave them a copy.

”I’m really appalled,” said Tim Stewart-Winter, a Yale lecturer. ”As a New Haven resident and member of the Yale community, I think diversity is a strength of this country.”
Stewart-Winter said he likes to take out-of-town guests to Atticus, but may not now because of the policy.

As we have pointed out before, the EEOC generally frowns on English-only rules enforced at all times.  However, when English is only required at certain times (e.g., when talking to customers), the EEOC permits such policies if required by a business necessity (“An employer may have a rule requiring that employees speak only in English at certain times where the employer can show that the rule is justified by business necessity.”). 

As to whether the comfort of customers is an acceptable “business necessity,” the EEOC has looked to see if an English-only rule was adopted for nondiscriminatory reasons rather than, for example, motivated by a discriminatory intent based on national origin. So, some courts have found that an English-only rule is justified by “business necessity” if it is needed for an employer to operate safely or efficiently. One such  example involves communications with customers, coworkers, or supervisors who only speak English.

Of course, it is not possible to say what the case is in this situation for sure, but the EEOC does continue to field many complaints over English-only policies.

Hat Tip: Michael O’Hear

Anyway, if you followed those posts with any interest, or if you are generally interested in the experience of refugees, then you may want to review the recently-released report from The Advocates for Human Rights, entitled A House with Two Rooms: The Final Report of the Truth and Reconciliation Commission of Liberia Diaspora Project.  (Confession: as previously disclosed, I worked for the Advocates during and after law school, and I think it’s a terrific organization.)

A House with Two Rooms reports the findings of the Diaspora Project portion of the TRC’s work, which collected information about the experiences of the Liberian diaspora during the Liberian wars, during their flight from Liberia, and in the countries in which they resettled.  Amazon summarizes it this way:

From 1979 to 2003, more than 1.5 million Liberians were forced from their homes to escape civil conflict. Hundreds of thousands became refugees and many eventually made their way to countries of resettlement including the United States. Most of their stories have never been told. This report on the experience of the Liberian diaspora, entitled A House with Two Rooms, documents the experience of human rights abuses and violations of international humanitarian law that forced Liberians to leave the country. It is based on an analysis of more than 1600 statements, fact-finding interviews, and witness testimony at public hearings held in the U.S. The report also tells the story of the “triple trauma” experienced by members of the diaspora during their flight through Liberia and across international borders, while living in refugee camps in West Africa, and in resettlement in the U.S. and U.K.

I reviewed the Executive Summary and some of the interior chapters.  I am a little ashamed that I can’t stand to read much more of it right now, because it reminds me too much of what I heard from Liberian refugees during the period in the late 1990′s when I worked with refugees. The atrocities of the wars in Liberia were beyond what I ever imagined human beings could do to each other, until I heard it for myself. If you care to read a representative story, here is one from the Executive Summary, at pages 10-11.  (Or, just take my word for it that it’s terrible, and skip over the block quote.)

At the initial stages of the war, I moved to Ninth Street in Sinkor, Monrovia… The children were outside cleaning the yard. Suddenly they ran inside and said that they saw armed men coming. Moments later, Taylor’s men busted in. One of them said, “This is the dog I’m looking for.” He told us to come outside. Myself, my ten children, and my wife obeyed. The NPFL [commander] knew me…He had run against me in an election…before the war. He said to me, “You cheated me during the election, but now I am in power. I will teach you a lesson you will never forget.”

He told his NPFL boys to take my eldest daughter into the house. She was thirteen years old. They dragged her inside and dragged me in after her. [The commander] raped my daughter in front of me. My father (my daughter’s grandfather) was still in the house. He rushed at the NPFL men, trying to stop the rape. One of the men – I don’t know his name – shot and killed my [father] right there. [The commander] then brought me and my daughter back outside. He said, “I’m going to show you what I came here for.” He beat the children with the butt of his gun. He made two of my sons, who were seventeen and twenty, drink dirty water with the urine of one of the NPFL men in it. When the twenty year old refused, he shot him in the foot. [The commander] stabbed my other son, who was eighteen, in the elbow with his bayonet.

He then began to beat my wife. He told her to lay on her back and stare at the sun. [The commander] said, “You will eat your husband’s heart very soon.” He took the daughter who had been raped. [The commander] held her and said, “I want you to know how you all will die.” He ordered one of his men to cut off my daughter’s head. She was beheaded in front of our eyes. They dragged me over to lay beside her body. [The commander] said, “You will be the next one.”

Then I heard heavy shooting. ECOMOG was coming. The NPFL scattered. Before [the commander] left, he made a remark. He said, “Anywhere in Liberia I meet you or your family, I will kill you.”

I do not know how human beings like the man who lived through that experience go on with their lives, but thousands of them do, thousands of them right here in the United States.  When I was practicing refugee law and hearing these stories, I was focused on how to help each individual, and didn’t take much time to think of the larger picture of how the refugee and asylum law systems function (or do not).

Since I began teaching refugee law here at Marquette, I became more aware of the strange gulf (strange to me, anyway) between the fields of transitional justice, which, as I understand it, seeks to help societies that are in the process of recovering from or transforming after widespread human rights abuses, and refugee law, which seeks to provide refuge from those fleeing the abuses as they occur.

It is striking that, as far as I know, this Diaspora Project is the first time that a Truth and Reconciliation Commission has sought, methodically and purposefully, on such a large scale, to obtain information from the ones who fled the horrific violence and resettled elsewhere.

It seems to me that such interviewing of refugees should be a standard part of providing for their needs and giving them refuge.  And that it should be done at the time they are fleeing, not (or at least, not solely) years afterwards.  Not only because having their stories heard and believed is part of what they need, for healing, but because the evidence they could provide would be ammunition for investigating and, perhaps, stopping the human rights abuses as they occur, or even preventing them.

If you want to know more about the stories of the incredibly resilient, inspirational Liberian diaspora, a House with Two Rooms is available for purchase on Amazon or from the Advocates by mail.  It is also available for free download (in sections) on the Advocates’ website.

When you live in walking distance from the US-Mexico border, Newsweek points out, “the distinction between the U.S. and Mexico can get blurry—often children will pay visits on the weekend to family members who reside in Mexico and cross the border again Monday morning to go to class.”  Indeed, given recent rates of deportation, it is not at all unlikely that some children have (deported) parents living on one side of the border, while their citizen or permanent resident parents reside in Texas.

The trouble is that some of the students, allegedly, were crossing from Mexico every day to attend class in Texas.   And although public schools in the U.S. are forbidden by the Equal Protection Clause from denying education to children on the basis of their immigration status, schools do, of course, have the legitimate right to verify students’ residency in the district.  As the superintendent of the Del Rio district states, “It’s very simple. If you reside in the district, you can go to school. . . . . Texas has the same residency issues not just with children from Mexico but with children from Louisiana, New Mexico, Arkansas, and Oklahoma.” (An attorney for the Mexican-American Legal Defense Fund asks, ”Why isn’t the school district setting up a roadblock on the east side of town to see if students are coming from an adjacent school district?”)

I read about the controversy on a number of different websites, and you can probably imagine the character of many of the comments.  But one particular exchange played into a question that I have become a little obsessed about recently:  who is an “American”?  Is an “American” identified by legal citizenship?  By something more?  By something different from that altogether?

The exchange began when a young woman who had commented in favor of immigrants’ rights was explaining her family background and her plans for the future; she stated, in part, “I stick up for my people.”  That statement, which highlighted the writer’s sense, apparently, of belonging to a different “people” from the other commenters,  triggered this response:

Who are your people? My people are Americans, all colors, all races, all religions. If Americans are not your people you should be living, working and educating yourself in your own country with your own people.

“Who are your people?”  That question has been on my mind all semester, for a number of different reasons.

First, I wrote a short summary of the Padilla v. Kentucky case for the ABA Supreme Court Preview publication.  In that case, which was argued last week, the United States seeks to deport Jose Padilla, a Vietnam veteran who has lived in the US for more than forty years but who never sought citizenship.  Padilla’s immigration troubles began because, while working as a truck driver, he was caught moving a large amount of marijuana in his truck.  He eventually pled guilty to a drug trafficking charge that counts as an “aggravated felony,” meaning that his Lawful Permanent Resident status would be revoked after his sentence ended, and he would be deported.

Mr. Padilla’s defense to deportation is that he received ineffective assistance of counsel.  He says that during plea negotiations, he specifically asked his attorney whether there would be any immigration consequences to the guilty plea, and his attorney advised him that there would not “since he had been in the country so long.”

On appeal, the United States has abandoned its former position, and now agrees with Padilla that affirmative misadvice about immigration consequences must be ineffective assistance.  The fight in the case is reduced to whether that terrible legal advice prejudiced Padilla’s case, as well as the politically more interesting issue of whether simple failure to provide any advice at all, i.e., non-advice, regarding the immigration consequences of a immigrant’s criminal conviction also constitutes ineffective assistance. It seems likely that Mr. Padilla will win his argument that he received ineffective assistance, provided he can prove that his attorney misadvised him so terribly.  But it remains unclear whether he will avoid deportation.

Which is what leads me to the question.  Isn’t a man who lived here in our country for more than 40 years, who was a lawful permanent resident, who fought in Vietnam on our country’s behalf, who has a wife and children here, one of “our people”?  By what measure is such a man not as American as I am?

We can call what we are doing to Mr. Padilla, “deportation,”*  but it is something different.  We should invent a new word.

The scope of this issue came into even clearer focus for me, when, with a group of law students, I participated in a “know your rights” presentation and initial screening of some detained immigrants on behalf of a nonprofit that works with immigrants.  Before that experience, I knew that there had been an increase in deportation of “criminal aliens” due to the 1996 changes in our immigration laws, as well as later amendments.  It is one thing, however, to know that, and a very different thing to sit across a table and talk with some of the human beings being deported under these laws.

I talked with one man who has lived in the US since he was seven years old, and who seemed to have little to no chance of avoiding deportation.  Another interviewer met one who arrived when he was two. The combination of the expansion of the “aggravated felony” definition (which now encompasses almost all felonies and even some misdemeanors)  and the elimination of most forms of relief from deportation for such individuals means that many lawful permanent residents with criminal convictions are being deported from the United States to places where they have not lived in a long time.  In fact, there must be thousands of people like Mr. Padilla.

I guess you can say that Mr. Padilla, or the man who lived here since he was 7, or the one who came when he was 2, is not an American because he is not a citizen.  But saying so doesn’t make it true.  If Mr. Padilla can be deported for drug trafficking, why isn’t it justifiable to revoke the citizenship of anyone convicted of drug trafficking?  What is the legitimate difference?  What does “deportation” even mean when applied to someone like Mr. Padilla?

A third experience happened the same day and made the situation seem even more bizarre.  One of the immigrants with whom I spoke claimed, rather credibly, to be a US citizen caught up in a terrible mistaken identity problem.   Did you know that in the most recent wave of deportations, the US has deported quite a few citizens, mistakenly?  If you want to read about how something like that can happen, there is an interesting blog post on it here.  The short answer is that it is correlated with the increased use of expedited procedures.

Someone definitely should invent a new word for deportation of citizens.

Writing about Mr. Padilla, and meeting with detained immigrants, and reading the “Who are your people?” comment also led me to reflect on my recent interactions with law students and professors from other parts of the world.  In September I attended the  International Association of Law Schools Conference on Constitutional Law, at American University Washington College of Law.  Law professors from every part of the globe participated in the conference.  At my small-group sessions, and in breaks and social times, I discussed comparative constitutional law with professors from Australia, China, Costa Rica, India, Ireland, Italy, Malaysia, Mexico, the Philippines, South Africa, Zimbabwe, and many more places, too many to name.  I had just finished the Padilla write up at that time, and couldn’t stop talking about it.  It was often difficult to explain, though, to professors from other countries, because they didn’t understand why the government would provide counsel for indigent defendants in criminal proceedings but not for the same aliens in their related deportation proceedings.

That point came up again in my interaction with the Hurtado students who recently visited our law school.  During a conversation with one student, I was once again talking about Padilla (as I said, I can’t shut up about the case), explaining that there is no right to free counsel in the immigration proceedings because deportation is not a “punishment.”  The student gave me a very strange look, and interrupted to ask how it can be said that deportation is not a “punishment” when it is triggered by commission of a crime.  It is a good question.

My personal interactions at the IALS conference and with the Chilean students also left me with a more positive feeling with regard to “who are my people.”  A recognition that people who don’t share my location or my local circumstances or my nationality, but who do share important values, interests, and a way of thinking about the world are also “my people.”

In the end, maybe Peter Spiro‘s recent essay  in the ABA’s Spring 2009 Focus on Law Studies publication, “Whither Citizenship,” is right.  He discusses how globalization is “blur[ring] the boundaries that once more distinctly separated the ‘us’ from the ‘them,’” arguing that “[t]he primacy of the state is on its way to obsolescence,” and along with it, the concept of citizenship as it is currently understood, as a relation between individuals and the nation states of which they are citizens. He asserts that this process has begun and is inevitable, and that all people “who value robust liberalism should start training their sights on other institutions, public and private. The challenge, a formidable one, will be to apply the virtues of citizenship in the state in these other arenas.”  I hope that our people are up to the challenge.

I guess I will stop here, as I don’t have any satisfying way to end this discussion.  I will leave you with a picture of some of my people,  schoolkids walking in Del Rio, Texas in September.  (The caption pointed out that it’s not known whether these particular children are Del Rio residents, or not.)

“It is a severe rebuke upon us that God makes us so many allowances and we make so few to our neighbors…” – William Penn 1682

*For the immigration lawyers and professors, I am aware that the equivalent to “deportation” under current law is “removal.”  But I’ve noticed that most people in the news and the blogosphere continue to use the familiar word, “deportation,” so I am doing the same here.

The government’s high-profile raids may encourage an anti-enforcement backlash, especially when accompanied by criminal prosecutions of employers and employees alike.  In fact, high-profile raids seem perfectly tailored to amplify anti-enforcement norms.  By coupling employer enforcement measures with large-scale criminal prosecutions and removal of immigrants, the measures arouse the anxieties of the Hispanic population.  By bankrupting large employers, the measures also jeopardize the economic future of the communities that depend on them.

As an alternative to an enforcement strategy built around a small number of high-impact raids, Ben proposes reforms that would result in a larger number of enforcement actions against employers, but with less draconian results for both employers and employees.  He would make it easier for the government to sanction employers who hire illegal immigrants, but also reduce the magnitude of the sanctions in many cases, which should diminish anti-enforcement backlash.

Ben’s paper won the Silver Quill Award earlier this year for being one of the top two students comments published in volume 92 of the Marquette Law Review.

Today, in a 7-2 opinion authored by Justice Roberts, the Court announced its decision in favor of the alien, determining that the disputed 1996 statutory provision did not take away the appellate courts’ traditional stay power in appeals pending deportation.

Alito and Thomas, dissenting, argued that the majority’s interpretation of the statute “nullifies” (dissenting slip op. at 1) Congress’s effort to abolish the automatic stay in appeals pending deportation.

But the majority emphasizes that the traditional stay is not automatic, or, at least, should not be.  The Petitioner had come close to arguing that appeals in asylum cases should remain almost automatic, pointing  out in brief and argument that, for asylum seekers at least, the irreparable harm that could occur upon deportation–which for many asylum seekers includes torture, imprisonment, perhaps execution–is a heavy factor weighing in favor of granting a stay, and arguing that permitting the alien to remain in the United States pending the appeal causes little or no harm.  The majority disagreed with the latter point, observing,

Of course there is a public interest in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm. But that is no basis for the blithe assertion of an “absence of any injury to the public interest” when a stay is granted. Petitioner’s Emergency Motion for a Stay 13. There is always a public interest in prompt execution of removal orders: The continued presence of an alien lawfully deemed removable undermines the streamlined removal proceedings IIRIRA established, and “permit[s] and pro-long[s] a continuing violation of United States law.”

The concurrence makes the point even more strongly, observing, “Under either standard, even the less stringent standard the Court adopts today, courts should not grant stays of removal on a routine basis.” (Concurring slip op. at 2.)

Justice Roberts is a good writer.  My favorite line appears on page 10 in the slip opinion.  In this passage, Justice Roberts is responding to the dissent’s argument that the statutory amendment limiting the availability of “injunctive relief” in these appeals should extend to “stays” because stays are, technically, a form of injunction:

Whether such a stay might technically be called an injunction is beside the point; that is not the label by which it is generally known. The sun may be a star, but “starry sky” does not refer to a bright summer day.

I agree very much.

I also want to point out that the Washington Post’s article about the decision, which seems to be getting the most play on the web right now, has a misleading headline, “Court makes it easier to fight deportation.”  As I stated above, and as both the concurrence and the majority observe, under either interpretation, the standard for a stay has become more narrow, making it more difficult to fight deportation since 1996.  Furthermore, the majority of the circuits were already following the interpretation that majority confirmed today, so the majority’s decision works less change than the dissent’s would have.

Did you see this article in the New York Times this morning, about the 300 women protesting a new law that would give men in the Shiite minority community virtually complete control over the lives of their wives?  The NYT describes the law this way:

The law, approved by both houses of Parliament and signed by President Hamid Karzai, applies to the Shiite minority only, essentially giving clerics authority over intimate matters between women and men. Women here and governments and rights groups abroad have protested three parts of the law especially.

One provision makes it illegal for a woman to resist her husband’s sexual advances. A second provision requires a husband’s permission for a woman to work outside the home or go to school. And a third makes it illegal for a woman to refuse to “make herself up” or “dress up” if that is what her husband wants.

And the protest itself:

The women who protested Wednesday began their demonstration with what appeared to be a deliberately provocative act. They gathered in front of the School of the Last Prophet, a madrassa run by Ayatollah Asif Mohsini, the country’s most powerful Shiite cleric. He and the scholars around him played an important role in the drafting of the new law.

“We are here to campaign for our rights,” one woman said into a loudspeaker. Then the women held their banners aloft and began to chant.

The reaction was immediate. Hundreds of students from the madrassa, most but not all of them men, poured into the streets to confront the demonstrators.

“Death to the enemies of Islam!” the counterdemonstrators cried, encircling the women. “We want Islamic law!”

The women stared ahead and kept walking.

A phalanx of police, some of them women, held the crowds apart.

As a refugee law professor, dramatic confrontations like this one always lead my thoughts back to the legal definition of “refugee,” and the absence of  ”gender” among the enumerated categories of persecution.  For instance, the U.S. defines “refugee” as a person “unable or unwilling to return to . . . [his or her home] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . .” I have considered thearguments, legal and practical, against trying to add “gender” to the Refugee Convention’s definition as a separate ground.  But I think I disagree.  For that reason and so many others, it seems like time to revisit the convention and protocol that established the international definition of “refugee.”

Back to the main point, the courage of these Afghani women is inspiring. And the NYT article suggests that the law change might possibly be halted before becoming enforceable.

Cross-posted at feministlawprofs.

I should probably preface the rest of this long post by explaining that the article Vintee sent me was especially interesting to me because I worked with many Liberians during and just after law school, at Minnesota Advocates for Human Rights, now called The Advocates for Human Rights.  Most of my work for that organization involved interviewing prospective asylum-seekers, to assess their credibility and the strength of their claims for asylum.  My work there happened from late 1996 through early 1999, and many of our clients were Liberians.  Minnesota has a relatively large population of Liberians.  (You may want to check out the Minnesota Star-Tribune’s really nice website about Liberians in Minnesota.)

Anyway, as Vintee pointed out, the situation of these Liberians is “pretty relevant to some of our current readings” in my asylum law seminar. Indeed, the situation of the Liberians facing possible deportation later this year illustrates two of the most important ideas in the course:  (1) the legal definition of “refugee” does not include people fleeing from generalized civil war conditions, and (2) offering “temporary” humanitarian protection in place of permanent refugee status to such individuals is problematic, because countries experiencing civil war do not become stable very quickly, and human beings build new lives in the meantime.

To get asylum in the United States, you must prove that you meet the legal definition of a “refugee,” that is, you are fleeing from persecution “on account of race, religion, nationality, membership in a particular social group, or political opinion.”  That is why people fleeing from generalized conditions that threaten human life, such as civil war, fall outside of the legal definition of “refugee”: the persecution they fear is not “on account of” one of the five protected grounds.

Thus, while many Liberians I worked with were “refugees” within this legal definition because they feared being targeted due to their political or family relationships, or their ethnic background, many others were not, because they could not establish that they would be targeted on account of one of the special “protected grounds.”  It was difficult to explain to the latter group that they were not “refugees.”  At the time, I was therefore very glad that the United States had determined to grant Liberians who arrived during certain designated periods a “temporary protected status,” or TPS. At least there was some protection to offer most Liberians we interviewed.  

Now, though, ten, eleven years later, thinking of people who have been establishing lives here, now facing the prospect of being forced to return to Liberia, I wish that at that time I had worried more about the fact that for so many of them, their protected status was only “temporary,” at least in name. 

How do we reconcile the fact that we welcomed Liberians here for five, ten, fifteen or more years, with the word “temporary” we attached to their official legal status?  Proponents of the deportations have claimed that allowing Liberians to stay “makes a mockery of the concept of short-term temporary humanitarian protection,” but any such mockery happened years ago, as protection was extended, again and again, with the label “temporary” still attached.  That dry, legalistic phrase, “extending TPS,” had the real life result of allowing human beings to build lives here.  Thousands of Liberians made their homes here in the United States for years and years in such a “temporary” status.  And thank God for that.  It allowed them to feel safe, to forget the horrors many of them had experienced, to build new lives.  Find jobs, buy houses, start businesses, have children. Become members of their communities.  Tearing those human beings from their lives here cannot change the fact that the lives we allowed them to build here were not “temporary.”

To me, it seemed disingenuous from the start to label the protection we were granting Liberians “temporary.” It should have been clear that such horrific civil strife as was taking place in Liberia from 1989 to 1996 would take years to stabilize. Indeed, while things are much improved there now, and while the Truth and Reconciliation Commission may provide a path to peace and stability, the country is hardly prospering, with an unemployment rate of a “staggering eighty-five percent,” according to the UN’s World Food Programme.  The Liberian government itself opposes the deportations, fearing a “destabilizing effect on the country’s fledgling economic and social structures.”  

I hope that many members of the Liberian diaspora are able to repatriate and help rebuild their homeland. Liberia needs them.  But not all of them can or should do so.  Having invited these human beings to weave themselves into the fabric of our communities, for years, even decades, we should not force them to leave now.  Not to mention the fact that many of them have raised children here, children who have no memory of Liberia, perhaps never even set foot in that country.

Beyond the fundamental inhumanity of tearing people from their communities here, the prospect of our country forcibly deporting Liberians is particularly repugnant, to me at least, given the United States’ historical relationship with, and special responsibilities toward, Liberia.  As the Library of Congress general resources portal on Liberia states,

Liberia was settled by freed American slaves in 1821 and became an independent republic in 1847. Americo-Liberians, descendants of the freed slaves, dominated the country until 1980, when Sgt. Samuel Doe led a violent coup that led to the killing of President William Tolbert. By a fraudulent election, in 1985, Doe became Liberia’s first indigenous president. 

That brief summary glosses over the many other ways in which United States policy and actions from before the founding of that nation and up until the present day have affected Liberia’s political and economic development. Any reader of the history of the relationship between the United States and Liberia must acknowledge that the United States bears significant responsibility for the ethnic and political tensions that drove Liberia to war and created the forced migration crisis in that country.  In view of our historical relationship with Liberia, we were right to offer protection to all of fleeing the Liberians who sought safety here.  Having allowed them to make homes here for years, we should offer them a path to permanent residency.  

In December, a number of congressional representatives, including Milwaukee’s Gwen Moore, wrote to Bush and Obama in December, seeking an extension of the Liberians’ status here.  In January, a large number of NGOs (including The Advocates for Human Rights, the National Immigrant Justice Center, and the Catholic Legal Immigration Network, Inc.) renewed that request. The Advocates’ website has more information about efforts to prevent the deportations, and even a postcard you could send to the President about the issue, were you so inclined.  I plan to do so myself.

The legal issues on appeal were not nearly so colorful as the underlying facts.  Most significantly, the court had to determine what it means to “procure” citizenship through a false statement. 

In order to answer the question, the court sorted through the Supreme Court’s badly splintered set of opinions in Kungys v. United States, 485 U.S. 759 (1988).  After counting the votes behind the various competing positions in Kungys, the Seventh Circuit (per Judge Evans) decided that Justice Brennan’s concurrence stated the controlling test: “[T]he government only wins if it shows that the citizen misrepresented a material fact and it is ‘fair to infer to infer that the citizen was actually ineligible.’” 

The court had little difficulty concluding this test was satisfied by the evidence against Latchin: “It defies common sense to think that the INS would have naturalized a man who worked for years as a spy for a hostile regime and who had at least some ongoing relationship with the [Iraqi Intelligence Service].”

Yesterday the Supreme Court heard the argument in Nken v. Filip (formerly Nken v. Mukasey), which asks whether an alien who seeks a stay of deportation pending appeal must prove by clear and convincing evidence that his deportation is prohibited by law.  The majority of courts have held that the ordinary standard for stays pending appeal continues to apply to such stays despite Congress’s enactment in 1996 of legislation providing that ”no court shall enjoin the removal of any alien pursuant to a final order under this section unless the alien shows by clear and convincing evidence that the entry or execution of such order is prohibited as a matter of law,”8  U.S.C. sec. 1252(f)(2).

The question is especially important in cases like Mr. Nken’s, in which the alien’s underlying claim is that he will suffer severe persecution or even death if returned to his country.  If such aliens must demonstrate their right to stay by clear and convincing evidence, i.e., more than a preponderance of the evidence, to obtain a stay, then the expected result would be that some aliens with valid claims would be returned to their home countries and possibly subject to persecution before having the chance to have their appeals decided on the merits.

Prior to the 1996 overhaul of the immigration statutes, an immigrant appealing from a deportation order received an automatic stay of deportation pending appeal.  The old code also made it impossible for the immigrant to continue his or her appeal after deportation; deportation ended the case.  

The 1996 amendments eliminated the automatic stay, but also eliminated the provision that ended an appeal after deportation, providing instead that an alien may continue his appeal after deportation.  The amendments also added various limitations on judicial review, including the above-quoted portion of section 1252(f)(2).  

Since then, the majority of circuit courts have held that sec. 1252(f)(2) does not apply to stays pending appeal, reasoning that the verb “enjoin” means something distinct from “stay,” especially in view of the fact that applying the “clear and convincing evidence” standard probably means that only a citizen or someone else with a clear legal right to remain in the country would be able to obtain a stay.  As Judge Easterbrook observed in the Seventh Circuit’s opinion siding with the majority, Hor v. Gonzalez, “an alien . . . who contends only that the immigration judge’s conclusion is unsupported by substantial evidence will be unable to demonstrate ‘by clear and convincing evidence that the entry or execution of [the removal] order is prohibited as a matter of law’ and thus would have no hope of a stay if §1252(f)(2) applies to requests for stays.”  But some courts have held the opposite.

There were not many surprises in the questions asked in the argument yesterday.  At the outset, Chief Justice Roberts was focused on the practical impact of ruling in favor of the Petitioner–i.e., the prospect that applying the ordinary stay standard to stays of removal would mean that almost all such stays would be granted, which seems inconsistent with Congress’s elimination of the automatic stay. Justice Scalia and some other justices also pushed the Petitioner’s attorney, Lindsay Harrison, on the question of to what the limitation on injunctions applies, if not stays pending appeal.  There would be few reasons for an alien to seek to enjoin removal except through the ordinary appeal process.  

Chief Justice Roberts and Justice Stevens also pressed Harrison on the question of whether the difference in standards really makes such a difference; in other words, in deciding whether to grant a stay of removal pending appeal, isn’t the court always deciding whether the alien might be entitled by law to stay? But the responses to those questions, as well as back-and-forth with the United States’ attorney in the following part of the argument, made clear that there is a real difference, because under the “clear and convincing evidence” standard, it seems that balancing of the equities is irrelevant.  In other words, under that standard, it seems that the severity of the harm the alien fears upon removal coul not tip the balance in favor of the stay if there alien’s challenge is to the findings of fact, at least not unless the evidence is “clear and convincing” in favor of the alien.  

I realize that this discussion is a little fuzzy, but as noted during the argument, that’s part of the problem with this statute–it’s difficult to understand what Congress meant when it stated that a trial standard, “clear and convincing evidence,” should apply in the context of judicial review of another court’s decision.

Perhaps the most important part of the argument, in attempting to predict the Court’s ruling, was the discussion of whether, in the view of the Deputy Solicitor General, the Supreme Court had violated the law by issuing a stay in Mr. Nken’s case pending decision on his petition for certiorari.  At one point, Deputy Solicitor General Edwin Kneedler asserted that “1252(f)(2) allows a court to take the time necessary to rule meaningfully on the stay application. We do not believe Congress intended to divest the court of the ability to rule on the merits.”  He also stated that under the Hobbs Act, despite section 1252(f)(2), there remains “a provision for a temporary — for a court to issue a temporary stay upon a showing of irreparable injury to allow the status quo to be maintained pending the court’s ruling on the interlocutory injunction.”  

This position seemed to take a lot of the wind out of the Respondent’s interpretation, because, as Justice Souter asked, if such authority survives despite section 1252(f)(2), “[t]hen why doesn’t that provide the broader authority under (b)(3)(B) stay provision that your friends on the other side are arguing for?”  Thus, the government’s concession that the statutory framework did not strip the court’s ability to preserve the status quo temporarily while it rules on the availability of the stay seems to have undermined its claim that the court nevertheless lacks the power to preserve the status quo during the remainder of the appeal.

In Easter, several codefendants appealed their sentences for various drug trafficking convictions.  One, McKay, challenged the application of a mandatory minimum sentence to him based on the quantity of drugs involved in his offense.  The ten-year minimum was applied to McKay because he and his coconspirators were responsible for at least 50 grams of crack or one kilogram of heroin (the actual basis was unclear).  McKay’s appeal centered on the fact that, for purposes of calculating his sentence under the federal sentencing guidelines, the district court found him responsible for only 960 grams of heroin and 45-75 grams of crack.  However, the Seventh Circuit (in a per curiam decision) noted that the guidelines do not hold defendants responsible for as much of the conduct of their coconspirators as do the mandatory minimum statutes.  (For an earlier post on this topic, see here.)  Considering the full set of drug sales foreseeably perpetrated by McKay’s coconspirators, the district court could permissibly reach the quantity thresholds for the ten-year prison sentence.

A second codefendant, Davis, challenged the enhancement of his sentence under a provision of the guidelines that deals with “reckless endangerment during flight.”  While running away from the police, David attempted to pull a gun out of his pocket, but dropped it.  The Seventh Circuit held this counted as “reckless endangerment”: “simply reaching for a loaded gun is enough to create a substantial risk of serious bodily injury to another person.”

A third codefendant, McSwain, attempted to challenge the application to him of both a twenty-year mandatory minimum for the drug-dealing conspiracy and a consecutive five-year term under 18 U.S.C. §924(c) for possessing a gun in furtherance of a drug crime.  I say “attempted” because McSwain’s lawyer bailed out on him, asserting in an “Anders” brief that there was no nonfrivolous basis for an appeal.  This was a remarkable move by the lawyer, for the “piling on” issue was one of first impression in the Seventh Circuit and had recently been decided in a defendant’s favor in the Second Circuit.  Even more remarkably, the court in Easter agreed with McSwain’s lawyer that the argument was frivolous.  What a rebuff to the Second Circuit: not only was its reasoning rejected, but the reasoning was actually characterized by a sister circuit as frivolous!

Here is McSwain’s perfectly straightforward textual argument.  Section 924(c) is prefaced by these words: “Except to the extent that a greater minimum sentence is otherwise provided by this section or by any other provision of law [apply the five-year mandatory minimum].”  McSwain received a greater minimum sentence (i.e., twenty years) that was provided by another “provision of law” (i.e., the drug statute).  Thus, by operation of the “Except Clause,” the 924(c) five-year sentence did not apply.

To be sure, one might plausibly construe the Except Clause only to reference other mandatory minimums triggered by the possession of a firearm.  But the statute does not clearly say that.  At most, there is an ambiguity here, which (pursuant to the Rule of Lenity) should be resolved in the defendant’s favor. 

Moreover, even if one does not find the textual argument as persuasive as I do, the issue should not have been decided in an Anders setting, with McSwain’s own lawyer not trying to win the appeal for his client, but rather trying to get out of the case.  An issue of first impression that has generated a circuit split elsewhere merits true adversarial testing, with able and committed advocates on both sides of the question.

In United States v. Cano-Rodriguez (No. 07-3721), the defendant, a Mexican citizen in this country illegally, was imprisoned on a state-court conviction, and then prosecuted upon his release in federal court for being in the United States without permission.  After his conviction, his sentence was enhanced under a provision of the sentencing guidelines that applies where a defendant commits an offense “while under any criminal justice sentence.”  Cano-Rodriguez then appealed the application of this enhancement.  The Seventh Circuit indicated, however, that his federal immigration offense was a continuing offense that “track[ed]” him from the time he entered the country illegally through his time in state prison.  Under this theory, it would seem that he had indeed committed the immigration offense “while under” the state sentence.  In any event, Cano-Rodriguez had not properly preserved the issue, and the Seventh Circuit held that his sentence enhancement did not qualify as “plain error.”  Thus, the issue remains open for litigation in the Seventh Circuit if properly preserved in a future case, although defendants have not fared well on this sort of claim in other circuits.

In United States v. Strode (No. 08-1611), the defendant challenged the application of various guidelines to him, but the Seventh Circuit rejected these challenges on various case-specific factual grounds.

Finally, in United States v. Hagerman (No. 07-3874), the court summarily rejected a grab-bag of different arguments made by an environmental defendant, including that he should not have been given a prison sentence because:

the damage he caused to the environment could not be quantified, . . . he made “considerable” contributions to his community, . . . his family relies on him for support, and . . . imprisonment will make paying restitution difficult.

Although I might have liked to see a little more discussion of these sentencing issues, they are the sorts of issues that are unlikely to get much traction in the aftermath of the Supreme Court’s Rita decision.

I was a bit startled the first time I heard about U.S. soldiers seeking refugee status in other countries to avoid serving, or continuing their service, in the Iraq War.  There have been a number of such cases in Canada, and at least one in Germany.  (And I should note before continuing that I’m not sure that “humanitarian and compassionate grounds” are quite the same as asylum; still, the remainder of this post focuses on these soldiers’ ability to establish asylum.)

Under U.S. law, the basic definition of a “refugee” is someone who “is outside any country of such person’s nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” and Canada’s definition is similar.  Generally speaking, as students in my refugee law seminar learn, volunteer soldiers who desert their posts do not qualify as “refugees” under this definition.

Volunteer soldiers who fear prosecution for deserting have difficulty proving two important elements of the claim.  First, that they face “persecution,” rather than prosecution. Second, even if being tried and imprisoned for desertion is “persecution,” that the trial and imprisonment is “on account of” any of the forbidden grounds.  Having volunteered to become soldiers, it is difficult for them to establish genuine religious or political objections to service.  Furthermore, it is difficult to establish that the government targets them for punishment due to any of their beliefs or characteristics; rather, they are targeted along with anyone else who refuses to serve in the army as promised.

But the question of exactly what sort of service the soldiers promised to provide is the window through which some U.S. soldiers have tried to establish refugee status, arguing that their service in Iraq went beyond what they had volunteered for.  In July, a Canadian appeals court ruled that “dodging orders that are ‘contrary to the basic rules or norms of human conduct’ is enough grounds to apply for refugee protection. ‘Military action which systematically degrades, abuses or humiliates either combatants or non-combatants is capable of supporting a refugee claim where that is the proven reason for refusing to serve. . . . ‘”  

In other words, if the soldiers could demonstrate that what they were being required to do was not what they agreed to do, but something terrible and against the law, i.e., “contrary to the basic rules or norms of human conduct,” then, this court held, they could perhaps demonstrate that their punishment was on a forbidden ground.

Even were that the case, however, circling back around to the first issue I raised, it seems unlikely that trial and imprisonment for desertion in the United States will be deemed severe enough to rise to the level of “persecution.”  This BBC article states that the only U.S. soldier that Canada has deported so far was sentenced to 15 months in prison when he returned here.  In the end, whether to deem a punishment “persecution” or “prosecution” is a judgment reflecting the decision-maker’s impression of societal values, and it is difficult to imagine a Canadian decision-maker determining that a volunteer soldier’s 15-months sentence for desertion was so unfairly punitive as to rise to the level of persecution.