Previously, I wrote about how the U.S. has no legal instrument that provides legal status for climate migrants. The lack of such status incentivizes climate migrants to enter or remain in the U.S. illegally. Thus, to mitigate the effects of the migrant crisis, I propose that the U.S. adopt a new legal status tailored to climate migrants. Specifically, I propose a unique hybrid status for climate migrants, which combines aspects of refugee status and temporary protected status (“TPS”).[i] At a minimum, such status must have three key elements for legislation to appropriately address climate migrants: (1) a narrow definition of “climate migrant”, (2) mandatory application of legal status, and (3) conferral of the same rights refugees’ receive.[ii] Continue reading “Mitigating Climate Migrants Crisis With Hybrid Status”
In recent days, President Trump has declared that he would have the United States withdraw from the Paris climate accord. Business leaders like Elon Musk of Tesla have said that this decision would ultimately harm the economy by yielding the jobs of the future in clean energy to foreign competitors. I argue that withdrawing from the Paris climate accord also serves to exacerbate the climate migrant crisis that will inevitably hit American shores.
The global environment has long impacted migration patterns. For instance, humans have historically left places when deteriorating conditions threatened their survival. However, accelerated effects from climate change are expected to bring about significant and unprecedented changes to global migration patterns. Climate change is rapidly destabilizing global environments,(1) resulting in increasingly more common rising oceans, longer and more frequent droughts, and higher temperatures.(2) Consequently, changes to global environments will inevitably dislocate people from their homes and nations. In fact, many communities have already started to suffer from the disastrous consequences of climate change. For example, in Gabura, Bangladesh, many of the three thousand people who live in this coastal region have been forced to move their homes onto skinny, man-made embankments to flee the rising ocean.(3) Yet because of increasingly cramped conditions and dwindling resources, villagers are unable to work, farm, and live as they traditionally have.(4) Unfortunately, there is no relief in sight, as scientists predict rising waters will completely submerge Gabura and at least seven percent of all Bangladesh before the end of the century.(5) Parallel stories of growing displacement caused by rising sea-levels,(6) more frequent droughts,(7) and retreating sea ice(8) are found in ever increasing numbers all around the globe.
As nations debate the causes and treatments for climate change, people everywhere are struggling to adapt to new environmental realities. Regrettably, for many adaptation will mean leaving their countries to survive. Such people who are induced to leave their home country because of the climate change are referred to as “climate migrants”.(9) Presently there is little empirical research to provide anything more than a rough prediction of population displacement that will occur because of climate change.(10) In fact there is a wide variety of predictions; however this does not undermine the urgency to address the climate migrant crisis. For example, Christian Aid, a British organization that actively provides refugee assistance, predicts that the global number of displaced people may rise to more than one billion by the year 2050, in large part due to climate change.(11) In comparison, ecologist Norman Myers reports that up to 200 million people may be become climate migrants by the end of this century.(12) Despite the lack of empirical research, what is certain is that global warming will lead to massive population displacements and climate migration at numbers never before witnessed.(13) Such displacement will almost certainly lead to extinction of peoples and cultures. Continue reading “Facing Extinction: Climate Migrant Crisis”
The question I am asked over and over lately: “how do I get temporary guardianship for my children in case I am detained and deported?” The fact that I hear this question, or some similar form of it, so frequently in recent weeks is indicative of the level of fear in the immigrant community. This fear is a direct result of the new policies of our President, his executive orders, the follow up memoranda from Homeland Security, and the waves of “targeted enforcement” by Immigration and Customs Enforcement (ICE) that have been unleashed nationwide.
Let’s be clear, ICE has been carrying out its daily work of initiating deportation proceedings long before this presidency. That has not changed. ICE currently has the same number of officers and the same amount of resources. There is no “deportation force” over and above what we already had – at least not yet. However, the tone and tactics being used have clearly changed. Virtually any undocumented immigrant is now a priority for removal, regardless of whether they have a criminal record. Media recently reported that ICE detained a domestic abuse victim in El Paso, Texas after going to court to file a restraining order. ICE also detained a young Dreamer from Argentina in Jackson, Mississippi just after leaving a press conference where she spoke out against these changes. People hear reports of these high-profile cases and wonder if they will be next.
It is the beginning of a campaign of fear directed towards not only the undocumented, but immigrants in general. Fear feeds rumors, which can turn fear into panic. This is the first step. Order a travel ban for Muslim-majority countries in the name of protecting us from terrorists. Call for more deportations of undocumented immigrants while labeling them as criminals. This scares immigrants, but also creates fear of the “other” among the wider general population. Is this the America we want to be? Continue reading “A Campaign of Fear Towards Immigrants”
Tonight, the Ninth Circuit issued an unanimous ruling in State of Washington v. Trump rejecting the Trump Administration’s motion for an emergency stay of the District Court’s temporary injunction. That order by the District Court had the effect of halting enforcement of the President’s January 27 Executive Order suspending entry of aliens from seven specified countries into the United States. In prior posts here and here, I argued that the January 27 Executive Order violated statutory provisions such as the 1980 Refugee Act and also that the Order violated the United States Constitution by discriminating on the basis of religion in the entry of immigrants and non-immigrants.
Tonight’s ruling by the Ninth Circuit is necessarily limited by the procedural posture of the case. The court states at the outset:
To rule on the Government’s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides. Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay. (opinion at p. 3)
Despite this procedural posture, the opinion issued by the court goes out of its way to make several strong statements of law. First, the court firmly rejects the assertion of the Trump Administration that “the district court lacked authority to enjoin enforcement of the Executive Order because the President has ‘unreviewable authority to suspend the admission of any class of aliens.’ ” (opinion at p. 13). Continue reading “Ninth Circuit Rules 3-0 Against Trump Administration: Analysis and Explanation”
Yesterday, in a post on this Blog, I called President Trump’s Executive Order of January 27, 2017, “a rare trifecta of illegitimacy.” The rollout of the Executive Order has been confused, and its implementation uneven. Thus far, most Republican members of Congress have been silent on the legality of the Executive Order, even those Republicans who criticized Trump’s proposal to ban Muslim immigration during the presidential primaries. Notably, the Executive Order has received only tepid support from Senate Majority Leader Mitch McConnell.
The Executive Order purports to “suspend entry” of all aliens into the United States who are nationals of specified countries. Media accounts describing the implementation of the Executive Order have focused thus far on the situation of individuals who are fleeing persecution being turned away at the United States border, and subsequently returned to their home country. For example, reporters have underscored the plight of Iraqis who provided assistance to U.S. forces during the Iraq War, and who have expressed fear over their safety if they remain in Iraq.
Defenders of the President’s power to issue the Executive Order point to a 1950s era statute passed by Congress, Section 212(f) of the Immigration and Nationality Act ( 8 U.S.C. 1182(f)). This provision is the key to the power Mr. Trump claims to suspend entry of certain categories of aliens and return them to their home countries. Section 212(f) says:
“Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” (emphasis added)
By its own terms, the statute purports to grant the President the power to “suspend the entry” of aliens. However, the Trump Administration has gone further. The Trump Administration is turning aliens away from the border and returning them from whence they came. Continue reading “President Trump’s Executive Order is Still Unlawful”
Let’s review a few basics about the Rule of Law in the United States of America. First of all, the Executive Branch (in the form of the President) is given the power to enforce federal law by our United States Constitution. In contrast, the Legislative Branch (in the form of the Congress) is given the power to make the law. So, for example, if the Legislative Branch has passed a statute that grants all refugees seeking political asylum the absolute right to file such a claim when they reach our nation’s borders (which it has, in the Refugee Act of 1980), then the President cannot simply declare that right to be “suspended” and instruct officers with the Customs and Border Protection office to turn such refugees away when they arrive at U.S. airports or other ports of entry.
As a side note, none of the Executive Orders or Presidential Directives issued by President Obama relating to the enforcement of the immigration laws directly contravened explicit language contained in a statute passed by Congress. The legal debate over the unilateral actions taken by President Obama concerned the scope of the President’s discretion to choose how to enforce the law and how to prioritize deportations. They did not concern whether the President had the authority to order government officials to ignore explicit commands contained in the law. The Order by President Trump to “suspend” the entry of refugees from specified countries without complying with the provisions required under the Refugee Act of 1980 is in direct conflict with an Act of Congress.
Second, the United States has signed treaties that obligate us to treat persons who are “refugees” in certain ways. Continue reading “A Trifecta of Illegitimacy”
Well, here we are, January 20, 2017, and Donald J. Trump has been sworn in as this nation’s 45th president, though he achieved that position by losing the popular vote by the widest margin of any winning candidate in recent history (2.9 million more people voted for Democratic candidate Hillary Clinton), and he arrives at his new position with the lowest approval rating of any president in recent history.
As numerous others before me have written, President Trump’s campaign was not traditional in any number of ways, and I expect that his presidency will follow that trend. For some, that’s been the whole point. For others, that’s a less-than-inspiring harbinger. I wrote this summer about my concern about the candidate’s rhetoric, proposed policies, and the rule of law.
Though he has since backed off some of his campaign promises (for example, about having a special prosecutor investigate rival Clinton for her use of a private email server—a favorite chant at his rallies was “Lock her up!”), nothing since that time has changed my view. I continue to believe that the president won’t be appreciably different from the candidate. Continue reading “A New Era: The Rule of Law in the Trump Administration”
One of the first choices that the Trump Administration will face after the upcoming inauguration is what to do about the “Dreamers.” The name Dreamer has been used both to refer specifically to the young adults currently participating in the Deferred Action Childhood Arrival program (DACA) and, more generally, to any undocumented residents of the United States who were brought to this country by their parents when they were minors.
It is not difficult to be sympathetic to the plight of the Dreamers. As undocumented residents of the United States, they were subject to immediate deportation under the law as it existed prior to 2012. However, these longtime residents of the United States often had little memory of their birth country and may not have spoken any language other than English. They grew up in the United States, and attended U.S. schools, and as a result they share the same hopes and dreams of any native born young adult. Moreover, they were not morally complicit in their parents’ decision to enter the United States. Prior to 2012, approximately 2 million people essentially found themselves trapped in a form of limbo – feeling American, unconnected to any foreign country, and yet unable to work lawfully in the United States or to plan for their future.
Legislation was first introduced in Congress in 2001 to resolve this situation and to permit these persons to obtain legal residence in the United States. Titled the Development Relief and Education of Alien Minors Act (or DREAM Act), this first bill and similar versions introduced in subsequent years were designed to create a 6-year pathway to permanent legal residency. To be eligible under the DREAM Act, a young adult had to have been brought to the United States at a young age, was required to be a college graduate or a military veteran (or be currently enrolled or enlisted), and could not have a criminal record. The DREAM Act and its successor bills boasted bipartisan support but never passed both houses of Congress, either as a standalone bill or as a component part of a comprehensive immigration reform package.
Frustrated by congressional inaction, President Obama chose to extend relief to the Dreamers in the form of a Presidential Directive. Continue reading “Big Dreams and Hidden Harms”
For some, presumptive Republican nominee for president Donald J. Trump’s biggest appeal is his blustery persona and his take-no-prisoners attitude in his quest to “Make America Great Again.” For example, he started his campaign with a bold promise to build a wall on the United States border to keep out Mexican immigrants. More than that, Trump said, he would make Mexico pay for that wall. Mexican President Vincente Fox said Mexico would not and Trump just upped the ante. When Wolf Blitzer asked Trump how he would get the Mexican government to pay for a wall, Trump responded simply, “I will and the wall just got 10 feet taller, believe me.”
And, in the wake of the mass shooting at Pulse, the gay nightclub in Orlando, Trump renewed his call to profile on the basis of race/ethnic origin and religion, in order prevent future terrorist attacks. (The Pulse nightclub shooter was American-born and raised; his parents were refugees from Afghanistan, but his father became a naturalized American citizen.) Though claiming he hates the “concept” of profiling, he says other countries profile, and “it’s not the worst thing to do.” Earlier in his campaign, after the San Bernardino shooting in December 2015, he talked about increasing surveillance of Muslims and mosques and has suggested registering Muslims or mandating that they carry cards that identify them as Muslims.
Trump also doesn’t suffer fools gladly—or more precisely, he doesn’t suffer his version of “fools” gladly. When the Honorable Gonzalo P. Curiel, the federal circuit judge presiding over two class action suits against Trump University, ordered documents in the suit be unsealed—documents that are likely to shed negative light on Trump University, Trump spoke loudly and often about Judge Curiel as a “hater” and biased against Trump because, in Trump’s view, Judge Curiel is Mexican and, presumably, would not like Trump’s wall. (Judge Curiel is an American, born in Indiana.) Trump went even further, seemingly threatening the judge: “They ought to look into Judge Curiel, because what Judge Curiel is doing is a total disgrace. . . . O.K.? But we will come back in November. Wouldn’t that be wild if I am president and come back and do a civil case?”
As well, just over a week ago, Trump revoked The Washington Post’s press credentials to cover his campaign because he did not like how it wrote about some of his comments after the mass shooting at Pulse, calling the publication “phony and dishonest.” Trump seems particularly thorny about The Washington Post’s owner, Jeff Bezos, who founded Amazon. Like Judge Curiel, Bezos has been on the receiving end of what seems very much like a Trump threat. According to The New York Times, Trump said in February about Bezos, “He owns Amazon. . . . He wants political influence so Amazon will benefit from it. That’s not right. And believe me, if I become president, oh do they have problems. They’re going to have such problems.”
These examples and more have a common theme: Trump’s disdain for the rule of law, if not outright ignorance of it. Continue reading “Trump’s Rhetoric, Proposed Policies, and the Rule of Law”
While in my final semester of law school, the United States Supreme Court issued its decision in Padilla v. Kentcuky, holding that the Sixth Amendment’s guarantee to the effective assistance of counsel includes affirmative advice about the immigration consequences that flow from a criminal conviction. 559 U.S. 356 (2010). I have never practiced criminal defense in a pre-Padilla world. I have always considered it my duty, through research, and often times consultation with an immigration attorney, to determine what the client is facing if he or she accepts a plea. Likewise, I have always considered it my duty, if it is important to the client, to try and mitigate the immigration consequences when negotiating a plea. While it is impossible to mitigate all immigration consequences, it is possible to provide clients with an analysis about the consequences, or potential consequences, of a plea. The most important thing, in my opinion, is that a client understands the immigration consequences associated with a conviction, and thus, is given an opportunity to make an informed decision.
Prior to Padilla, immigration consequences were considered a collateral consequence of a criminal conviction, which meant that a claim of ineffective assistance of counsel was limited to instances of affirmative misadvice, rather than failure to render any advice at all. Padilla changed the landscape of the Sixth Amendment, and the decision reflects the Court’s recognition that deportation has long been recognized particularly harsh penalty associated with a criminal conviction, and that changes to the immigration law have made deportation “virtually inevitable” for most non-citizens with a criminal conviction. Id. at 360.
The Padilla Court, however, seemed to split the deficient performance prong of a Strickland analysis by linking the specificity of the advice required with the clarity of the immigration consequence. Accordingly, when the immigration consequences of conviction are “clear,” or “succinct and straightforward,” counsel’s obligation to give specific advice regarding those consequences is “equally clear.” Padilla, 559 U.S. at 369. In an unclear situation, a defense attorney still must advise his client, but the advice may be reduced to a more general warning. Id. Thus, leaving open for interpretation what constitutes a “clear” consequence, and what defense counsel’s duties are to find out the consequence. Continue reading “Wisconsin’s Narrow Interpretation of Padilla v. Kentucky”
On Thursday and Friday, Marquette Law School will host an important conference, “Restorative Justice and Human Trafficking — From Wisconsin to the World.” As the title suggests, human trafficking — for sex or labor — is a both a global human rights problem and a significant issue locally. Hundreds of cases have been reported in Wisconsin, mostly in the Milwaukee area. The conference is designed to raise awareness about trafficking and to help concerned citizens get involved in efforts to address the problem.
The Conference kicks off at 4:30 on Thursday with a keynote address by Martina Vandenberg (pictured above), who leads the Human Trafficking Pro Bono Legal Center in Washington, D.C. Vandenberg has worked on cases involving trafficking and other humans rights violations around the world.
On Friday, the Conference will continue with a full schedule of speakers and panels. A panel of victim-survivors will share their experiences. Local leaders and activists will discuss the impact of trafficking and current efforts to help victims. Other speakers will cover the existing legal framework, potential legal reforms, and the international context of trafficking.
The Conference is sold out, but there will be a live feed that can be viewed by clicking on the “Watch Now” tabs in the pages linked to above.
Tomorrow is Pi Day. In fact, it is the ultimate Pi Day given that Saturday’s date is 3.14.15. Enjoy a delicious piece of apple pie at 9:26.53 and you’ve taken the festivities about as far as you can hope to. Mathematicians, on the other hand, have carried this irrational national number out to over a trillion decimal places and determined that pi is a transcendental number (it cannot be expressed by any finite series or arithmetical or algebraic operation). Conceptually, pi symbolizes the ratio of the circumference of a circle to its diameter. It is constant, and perhaps that is what we should celebrate most.
There are few things in today’s world that are constant. One could argue that things today change at greater speed than ever before in history. Invention drives change–whether it is a new technology, process, or connection. In particular, scientific discoveries advance change, yet these discoveries rely on unwavering empirical laws and principles.
We, as lawyers, do not have the luxury of such a solid foundation. That is, our field depends on laws that are always changing—if not in form, then in interpretation. We must be nimble, able to change our theory as facts of the case are revealed, as new laws are passed, as politics and technology change, as the jury is selected, or as the judiciary announces a decision. There is no mathematical equation that provides a determinative estimation despite all the rules, codes and regulations that we study. And the closest thing to a constant that we have is the Constitution, which we all know has been interpreted differently over time.
This variability may provide the flexibility society needs to evolve while maintaining order. However, for some individuals, this lack of predictability can make life chaotic and tumultuous.
For example, consider immigration law. This field continues to evolve and change rapidly with new political leaders and bickering legislatures. While the law is trying to adapt to the changing landscape of the United States, individuals’ lives, plans, and goals linger.
Through my experiences with the Marquette Volunteer Legal Clinic and my work as a study abroad coordinator in the Office of International Education, I have seen this phenomenon first hand. For instance, I work with students who want to study abroad as Deferred Action for Childhood Arrivals (DACA) recipients. While the law currently provides a process to gain permission to leave and re-enter the country, they are not guaranteed the right to re-enter even having obtained permission. Further, with upcoming elections looming, it is uncertain if DACA will remain an option for students. Needless to say, under such a cloud of uncertainty, their ability to focus on their academic pursuits, including studying abroad, becomes seriously compromised.
Uncertainty can also arise from how the law is applied by judges. Take for example asylum cases. Despite having a very narrow and defined standard, judges apply it very differently when granting or not granting this status. During a talk by Dr. Noelle Brigden last fall, this chart was shown. I was shocked by the disparity in case decisions. Some judges seldom granted asylum, yet others almost always granted this status. How can that be justified by law? I find it troubling that a person’s fate may rest not on the merits and needs of immigrating to the U.S. but rather on who is sitting on the bench.
As a law student, I continue to better grasp how the law and its practice equate to consistent justice. As the government becomes increasingly polarized, technology advances, the economy fluctuates, and the law morphs, today I take solace in celebrating pi, Archimedes’ irrational constant, with a piece of my favorite, homemade, and very transcendental, chocolate pie. Bon appetit!