I was recently posed an interesting question which I thought would make a great topic for discussion and,while I’m unsure of how this post will be received on the faculty blog, I hope it will spur conversations as interesting as those I’ve had about the subject over the past month.
Next year I will graduate from Marquette Law School along with my fellow classmates. What is particularly noteworthy about our class is that, having first come to campus in the summer of 2017, we will be the first class to graduate who started law school under the current presidential administration. Whether you voted for Donald Trump or not, one cannot deny that his presidency has created an interesting climate not just in politics, but for the law in general. So, I was left to ponder how that interesting factoid has colored my law school experience and might affect the legal field for first year lawyers next year and in the near future.
My first intuition when pondering that question was to discuss how divisive politics and social media appear to be impacting the teaching and practice of law, but I can’t presume that my class is novel in thinking that these are tumultuous times in the legal field. I can’t personally speak to the law school climate in the past, but in my own experience being a law student can be a bit a political minefield, especially outside of Eckstein Hall. Throughout my time in law school, all of my friends and family have been eager to ask me about or to debate about constitutional issues the president has raised that month. But that is almost to be expected, as I have been told by some of my family members who are in the field.
On our first full morning in Tel Aviv, we turned to some (other) hard issues facing different parts of the population in Israel. Our first speaker was Mazal Bisawer, a PhD candidate and student leader at Tel Aviv University. Mazal spoke to us about the Ethiopian population in Israel—a minority within a minority—most of whom immigrated to Israel in the 1970’s and 1980’s. We’ve had visits with other Ethiopian Jews over the years (see blogs from 2017 here and 2015 here) dealing with the issue of diversity in Israel. And even on the main street in Tel Aviv, the concept of refugees is front and center with this beautiful mosaic:
Shayla Sanders identified with Mazal’s comments:
She spoke broadly about police brutality against young Ethiopian men and emphasized that while only 2% of the population in Israel, Ethiopian young people make up 60% of the population in juvenile detention facilities. I was struck in this moment with a sickening, yet somehow validating sense of déjà vu. I recognized these statistics. I know that African Americans in the US face a similar plight. In hearing her speak to some of these issues, I heard some of the same emotions I myself experience when discussing racial issues here in the US. I heard in her the same passion I feel when discussing instances of injustice against my people. I heard her pain when she told us how people would say that Ethiopians should feel lucky to only be experiencing minor levels of racism because they are the only group of black people not brought by force into a country and compelled into slavery. I felt her frustration when she emphasized that speaking out on these issues, she is often met with the same reaction as if she had stated a belief in little green aliens and UFOs… I have myself been written off as a radical idealist who plays the race card all too frequently. I have been faced with those who would rather police my tone than address and confront the truth in my statements. So, imagine my utter lack of shock when our very own tour guide immediately dismissed Mazal as radical and gave an open invitation to our tour group to take her opinion with a grain of salt not granted to any of the other speakers we had seen thus far.
A quote from and a link to a student-written comment in the Marquette Law Review made it into a CNN story this week.
CNN reported that on Friday President Trump criticized the Flores Settlement. According to CNN, he said, “We’ve had some very bad court decisions. The Flores decision is a disaster, I have to tell you. Judge Flores, whoever you may be, that decision is a disaster for our country. A disaster.”
The Flores Settlement, a settlement agreement from Reno v. Floresthat limits the amount of time that immigrant children can be detained and governs the conditions under which those children can be detained, is actually named after the plaintiff in that case, Jenny Lisette Flores. Flores had fled El Salvador as a teenager.
CNN then briefly explained the Flores case, quoting from the comment, Codifying the Flores Settlement Agreement: Seeking to Protect Immigrant Children in U.S. Custody:
[Flores] fled her country in 1985 and tried to enter the United States to be with her aunt. The former government agency Immigration and Naturalization Service arrested her at the border, and she was placed in a juvenile detention center, where she was handcuffed and strip-searched, according to the Marquette Law Review. The INS refused to grant her aunt custody of Jenny because it wouldn’t release minors to “third-party adults,” the law review article said.
Shannon Strombom (3L) has been chosen as the winner of the State Bar of Wisconsin’s Outstanding Public Interest Law Student of the Year.
The criteria used to determine a winner of this award includes a demonstrated commitment to working in the public interest, public interest involvement before and during law school, exceptional volunteer work or activism in the community, and a commitment to helping others.
Strombom is also the two-time recipient of a Public Interest Law Society fellowship. She has focused her fellowship work on immigration law, working one summer with Catholic Charities Legal Services for Immigrants and the next summer in the Arlington, Virginia, Immigration Court.
As for her plans after graduation, Strombom plans to build upon past experience and practice immigration law in a government, non-profit or small firm setting. Strombom particularly hopes to focus on family-based immigration law or humanitarian immigration law, such as asylum.
Strombom is an inspiration to us all. We are proud she will soon be a Marquette Lawyer.
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”
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)
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 Obamarelating 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.
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.
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.