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. ]]> http://law.marquette.edu/facultyblog/2009/04/15/brave-afghani-women-protest-law-change/feed/ 2 http://law.marquette.edu/facultyblog/2009/03/20/obama-extends-protected-status-for-liberians-for-twelve-more-months/ http://law.marquette.edu/facultyblog/2009/03/20/obama-extends-protected-status-for-liberians-for-twelve-more-months/#comments Sat, 21 Mar 2009 04:34:14 +0000 Jessica E. Slavin http://law.marquette.edu/facultyblog/?p=4320 The AP reports that President Obama has issued an executive order extended protection (”deferred enforced departure”) for twelve more months.  Advocates for the extension are pleased.  As I wrote previously, I also support this extension, but for the reasons explained in that longer post, I hope that during this twelve months, some legislative solution can be found, permitting the Liberians who have been here so long and established lives here, to stay.

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.

Powell admonishes employees that they should not consider themselves “guardians of the treasury of information on Immigration benefits, whose function is to dispense reluctantly that narrow portion of the treasury which relates to a specific inquiry.  Rather, all of us are, or should be, dispensers of total information, tailored to the entirety of each applicant’s situation. Tell them freely and openly not only what they are not eligible for but what they may be eligible for.”  

What an efficient and productive attitude for any agency employee toward her work. Some of the immigration agency employees I have encountered did seem to take this helpful stance, but others did not.  In fact, the same could be said about my encounters with DMV employees.

What are your thoughts? 

Thanks to Benders Immigration Bulletin Daily for the delightful link.

(Edit at 10:42 a.m.) As indicated in the comments below, Benders found this memo on the Nation of Immigrators blog.  The post, “New Year Resolutions for Immigration Officials,” is thoughtful and probably would interest anyone who is interested enough to be reading what I’ve written here.

Previously, 25 November was observed in Latin America and a growing number of other countries around the world as “International Day Against Violence Against Women”. With no standard title, it was also referred to as “No Violence Against Women Day” and the “Day to End Violence Against Women”. It was first declared by the first Feminist Encuentro for Latin America and the Caribbean held in Bogota, Colombia (18 to 21 July 1981). At that Encuentro women systematically denounced gender violence from domestic battery, to rape and sexual harassment, to state violence including torture and abuses of women political prisoners. The date was chosen to commemorate the lives of the Mirabal sisters. It originally marked the day that the three Mirabal sisters from the Dominican Republic were violently assassinated in 1960 during the Trujillo dictatorship (Rafael Trujillo 1930-1961). The day was used to pay tribute to the Mirabal sisters, as well as global recognition of gender violence.

The resolution “[i]nvites, as appropriate, Governments, the relevant agencies, bodies, funds and programmes of the United Nations system, and other international organizations and non-governmental organizations, to organize on that day activities designed to raise public awareness of the problem of violence against women.”  Today thus seems like a particularly appropriate day to draw attention to weaknesses in, and under-utilization of, the T visa program.  This immigration category was created to provide protection for victims of human trafficking in the United States.  As a Houston Chronicle article (which I found at the Immigration Prof blog, at the prior hyperlink) reported recently, 

The T visa program was created under the U.S. Trafficking Victims Protection Act of 2000 to help victims as traffickers were prosecuted by the government. As many as 5,000 visas could be granted annually, Congress said.

In the Houston ring, 67 of the women who were rescued after the anti-trafficking task force raided five cantinas and restaurants have received the T visas and four-year work permits, according to Andre Rodriguez, an attorney for the YMCA International Services.

Traffickers had tricked young women and girls from El Salvador, Honduras and Nicaragua into coming to the U.S. Some of the women were beaten and forced into prostitution. The women were forced to repay smuggling fees that were as high as $15,000.

Nineteen women have applied for visas but are waiting while at least nine are stuck in the complex paperwork process, the newspaper reported. Three have been deported, which may have been their choice.

Wafa Abdin, an attorney for Catholic Charities, said one of those was a teenager but she wasn’t able to interview her.

“We worry most about the youngest victims,” Abdin said. “Some never knew anything but abuse and had no one to take care of them or to teach them to protect themselves — some are going to be lost.”

The newspaper said its interviews with advocates, victims and attorneys showed 20 others are in limbo. The women apparently were separated from others after the rescue because they refused to speak, made mistakes, lied in statements or were described as traffickers’ girlfriends, according to immigration lawyers who eventually won their release.

Federal agents have arrested 449 traffickers and convicted more than 75 percent, according to U.S. Department of Justice statistics.

In Houston, eight members of the ring were convicted and five are serving prison time.

Victims’ testimony is key to nearly every case.

Martiza Conde Vazquez, a task force member based at the FBI Houston office, has learned how hard it is to coax the truth from traumatized and fearful victims. “Even though they’re free from the traffickers, they are still slave to their fears, and I don’t think that goes away,” she said.

Ann Bartow has posted here about the problems with the current program and the need to amend and reauthorize the legislation to make the program more effective.  Earlier this year, Governor Doyle signed into law a bill creating new felony crimes in Wisconsin, for human trafficking and child trafficking.  Trafficked human beings, often women, are members of communities throughout the United States, including right here in Milwaukee.  We can and should do more to protect them.

Cross-posted at Feminist Law Profs.

Agriprocessors, a company that specializes in the production of kosher meats, has also been in the news lately after the company was raided by the government based on the employment of a large number of undocumented workers and after its top officials were arrested for lying about its workers’ citizenship status.

This is an interesting case because it can be contrasted with the view that the Supreme Court took in the case of Hoffman Plastics, in which the Court held that undocumented workers who were illegally fired under the NLRA could not seek backpay.

Like everything else in this area of the overlap of immigration law and labor law, it is unlikely this is the last we have heard about this issue.

Cross posted at Workplace Prof Blog.

The procedural history of the case is extraordinarily convoluted, even by immigration law standards.  The petitioner, R-A-, was granted political asylum by the Immigration Court in 1996, but the (now-defunct) Immigration and Naturalization Service appealed, and the decision granting R-A- refugee status was reversed by the Board of Immigration Appeals in 1999. Subsequently, in 2001, Attorney General Janet Reno issued an order vacating the Board of Appeals’ decision and directed the Board to stay reconsideration pending anticipated approval of a new rule governing such matters.  However, that proposed new rule has never become final, not even after Attorney General John Ashcroft ordered the Board to “reconsider the decision in light of the final rule” in 2005.

The underlying facts of the case are undeniably horrifying.  The nature and extent of the violence experienced by R-A- was detailed in the original decision of the Board of Immigration Appeals and summed up by the Center for Gender and Refugee Studies at UC-Hastings, in its web page about her case:

[The petitioner's husband] raped and sodomized [her], broke windows and mirrors with her head, dislocated her jaw, and tried to abort her child by kicking her violently in the spine.  Besides using his hands and his feet against her, he also resorted to weapons—pistol-whipping her, and terrorizing her with his machete.

[The petitioner's] repeated attempts to obtain protection failed.  The police and the courts refused to intervene because it was a “domestic” matter.  When she ran away, [her husband] found her and beat her unconscious.  He told her that she could never get away from him, because he would “cut off her arms and legs, and . . . leave her in a wheelchair, if she ever tried to leave him.”

In its 1999 decision, the Board of Immigration Appeals explained that Guatemala failed to protect R-A- from this violence:

The respondent’s pleas to Guatemalan police did not gain her protection.  On three occasions, the police issued summons for her husband to appear, but he ignored them, and the police did not take further action.  Twice, the respondent called the police, but they never responded. When the respondent appeared before a judge, he told her that he would not interfere in domestic disputes. Her husband told the respondent that, because of his former military service, calling the police would be futile as he was familiar with law enforcement officials. The respondent knew of no shelters or other organizations in Guatemala that could protect her.

Nonetheless, though expressing sympathy for the petitioner’s plight, the Board concluded she did not fit the definition of a “refugee”:

It is not possible to review this record without having great sympathy for the respondent and extreme contempt for the actions of her husband. The questions before us, however, are not whether some equitable or prosecutorial authority ought to be invoked to prevent the respondent’s deportation to Guatemala. Indeed, the Service has adequate authority in the form of “deferred action” to accomplish that result if it deems it appropriate. Rather, the questions before us concern the respondent’s eligibility for relief under our refugee and asylum laws. And, as explained below, we do not agree with the Immigration Judge that the respondent was harmed on account of either actual or imputed political opinion or membership in a particular social group.

Reasonable minds can differ about this question, whether victims of domestic violence should receive protection as refugees.  But most everyone agrees that immigration cases should be resolved in a more timely and orderly fashion than this one has been.  Indeed, Attorney General Mukasey refers to the need to resolve this legal limbo in his new decision:

I have been advised that the Board has been holding not only the case of the particular alien who is the subject of the Matter of R-A- decision, but also a growing number of similar cases involving aliens who have alleged that they were victims of domestic violence in their home countries. [footnote omitted] The stay order has prevented the Board from acting on these cases. In light of these developments and the fact that the proposed rule cited by Attorney General Reno never has been made final, I have decided to lift the stay so that the Board can revisit the issues in Matter of R-A- and related cases and issue new decisions. Accordingly, the Board should now proceed as it sees fit with its reconsideration of Matter of R-A- and the other cases . . . .