March 2019

Supreme Court Increases Government’s Power to Detain Immigrants

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(Español) The Supreme Court has ruled that the government can detain legal immigrants who have committed crimes without a guaranteed bond hearing, even if years have passed since the original offense. The court voted 5-4 allowing government officials to continue arresting “deportable criminal aliens” at any point after a criminal conviction, even if the immigrant has finished their sentence. Writing for the majority, Justice Samuel Alito referenced previous rulings the court has made in which they consistently decided “an official’s duties are better carried out late than never.” The dissenting opinion, written and delivered by Justice Stephen Breyer, indicated the dissent’s opinion that the ruling granted the government too much power to detain people without bail “unless the individual is detained when released from criminal custody,”  adding:

“In deciphering the intent of the Congress that wrote this statute, we must decide — in the face of what is, at worst, linguistic ambiguity — whether Congress intended that persons who have long since paid their debt to society would be deprived of their liberty for months or years without the possibility of bail…We cannot decide that question without bearing in mind basic American legal values: the Government’s duty not to deprive any ‘person’ of ‘liberty’ without ‘due process of law,’ “

The cases at the center of the ruling involved two legal immigrants who were initially convicted of a minor drug charge. Years after their cases were resolved, both were arrested by immigration officials and were forced to fight their case before the immigration court. Both won their deportation cases and continue to live in the United States.

Widely seen as a win for the Trump administration and their hard line immigration stance, the Obama administration also defended the practice of detaining immigrants after their convictions. Both administrations argued the government has the authority to detain an immigrant for removal at any point. Lawyers from the American Civil Liberties Union (ACLU),  who represented both the immigrants in the case, noted the court has decided on the “most extreme interpretation of immigration detention statues, allowing mass incarceration of people without any hearing, simply because they are defending themselves  against a deportation hearing.” The ACLU has pledged to continue to fight what they see as an “overuse of detention” in the country’s immigration system.

New York Farmers Fear Losing Workers to ICE

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(Español)For farmers in New York, constant fear of losing their work force is now standard under the Trump administration. During previous administration, especially Obama, Immigration and Customs Enforcement (ICE) would have a targeted approach as to who it would look for and detain given its limited resources. Namely, these would be criminal aliens with some form of criminal record. People who resided in the United States for many years and have ties to the country and community, such as family or stable job, were typically not a target for removal and allowed to stay under certain provisions. The new administration’s dragnet approach now tosses those old assumptions out the window. Under this new administration, ICE has far leeway to detain any undocumented person, regardless of previous criminal history or circumstances of the questioning or detention, and the Department of Homeland Security is expected to pursue the person’s deportation.

This has caused great strife among the farmers in upstate New York, a region that largely went to President Trump in the 2016 election. The open secret in the area, which houses a variety of agriculture, including vineyards and apple orchards, depends on a largely undocumented work force to be able to function. Whereas under previous administrations, these farms could work with little fear, now, there is a risk any time any of the workers steps off the property (as ICE requires a warrant to search for people on private land). Given the nature of the work being done, a seasonal worker’s visa would not be an option for most of the farmers because of the prohibitive cost and the work they require is year-round. This has left the farms in a precarious position of not knowing if or when any of their workers will be detained and how to replace them, as most of these workers have been on the job for years and are fully aware of the proper work required.

Should there be any upside to this, it’s that workers are now seeing their treatment and working conditions improve. Many have decided that living in New York under the constant scrutiny and danger is no longer worth the work and have decided to move away. In an attempt to convince the workers to stay put and continue living in the area, many farmers have begun increasing wages and improving working conditions, as one worker stated “but the good thing about it now is that we get paid more and this farmer is good to me.”

Supreme Court Takes Immigration Case from Kansas

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(Español) I their upcoming session, the Supreme Court will hear a case concerning state charges against undocumented immigrants. The issue stems from a decision from the Kansas Supreme Court overturning a lower court decision to prosecute three undocumented immigrants for using stolen Social Security numbers. The state went through and prosecuted the men for using the stolen numbers to acquire jobs. The Kansas Supreme Court ruled that because of the federal immigration law, the state cannot prosecute undocumented immigrants on criminal charges when the information which serves as the basis of the claim came from federal immigration forms. Simply, put, a state cannot bring criminal charges against undocumented immigrants if the authorities obtained the information from federal immigration forms.

The court will be arguing how far federal immigration law goes towards keeping states from also trying to enforce immigration law. Should the Supreme Court overturn the decision from the Kansas Supreme Court, “overturns the Kansas court’s decision, all states could prosecute non-citizens for identity theft more easily,” said Stephen Yale-Loehr, a professor at Cornell Law School said. The law at the center of the suit brought before the Supreme Court is the Immigration Reform and Control Act, which, at its heart, makes it against the law to hire immigrants who do not have employment authorization and provided funds to establish an eligibility database to check the employment eligibility of immigrants. When the three immigrants filled out the required forms, it came to light they were using stolen Social Security numbers. The question then arose as to the state’s ability to prosecute the crime as the information came from a federal immigration form.

The Supreme Court recently struck down a similar issue from Arizona in 2012. Given the turnover in the court in the seven years since, and its distinctive conservative turn, immigration advocates are keeping a close eye on the arguments and decision of this case.

USCIS Closes Foreign Field Offices

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(Español) United States Citizenship and Immigration Services (USCIS) has announced it is planning on closing all its foreign field offices around the world in an attempt to save money. In a move the administration has pitched as an attempt to cut down on millions in spending, this would shutter the 23 field offices located in 20 countries around the world. While neither the administration nor USCIS has cited a specific amount that would be saved by this change, representatives have said this would not impact processing times or services offered abroad. The idea is to shift the responsibilities of the USCIS offices, which includes assisting with refugee applications, family reunification visas, and foreign adoptions, to members of the state department or to USCIS personnel in the United States.

Representatives have contended that this change would not impact the wait times or the backlog of certain applications, such as refugee applications, immigration advocates have warned that this could cause negative effects in the processing of future applications. There is already a backlog of applications pending in field offices abroad. The Trump administration has history of cutting refugee numbers in the recent years, lowering the number of allowable refugees from 45,000 to 30,000 between 2018 and 2019. Given the recent actions, immigrant activists worry this change would exacerbate the existing backlog and be used by the administration as justification to further cut refugee numbers in the future. Despite this fear, USCIS says this would not affect the wait or processing of refugee numbers as those are handled by officers based in the US who travel to handle the applications and interviews.

Outside of the processing of applications abroad, the USCIS offices also managed in assisting local state department offices, US nationals, and others with legal matters  in the scope of US immigration law. While these offices are mostly staffed by foreign nationals, it is yet to be determined how these roles would shift to anyone at the state department or even US based officers.

Immigrants Seek Refuge Avoid Deportation

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(Español) More families are seeking refuge in churches in order to avoid being arrested and subsequently deported by officers of Immigration and Customs Enforcement (ICE). As a general rule of thumb, ICE officers attempt to avoid detaining people in areas they deem “sensitive,” such as schools, hospitals, and places of worship. As a result, the number of people seeking refuge in churches across the country has risen from five people in 2016 to nearly 50 in 2018.

That is the situation the Thompson family has found themselves in in Philadelphia the last six months. In 2013, Clive and Oneita Thompson their asylum case. Having exhausted their appeals, the couple was faced with the prospect of returning to their native Jamaica, where gang members burned their crops and killed a family member. To them, that was not an option as they had five children they were raising in the United States, all either Legal Permanent Residents or citizens. This was during the Obama administration when the federal enforcement priorities were to remove dangerous criminals with little to no equity ahead of those who posed no threat and established a long presence in the country. Under the Trump administration, the policy has drastically changed to detain and remove anyone with no status, including people like the Thompsons. This left them with little choice but to abandon their home and lifestyle in New Jersey and seek refuge in a First United Methodist Church of Germantown in Philadelphia. Their lives completely upended, they have attempted their best to keep moving forward, unable to even step foot outside the church much less walk their children to the bus stop for school. There is the constant threat that, should they walk outside, ICE officers could simply arrest them for removal from the country.

Fortunately, the Thompson’s oldest daughter is set to turn 21 and, should she naturalize and become a US citizen, she will be able petition for visas for her parents. Though, this process could still take up to a year.

Circuit Court Rules in Favor of Asylum-Seeker

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(Español) A federal court recent ruling allows asylum-seekers greater opportunity to have their asylum cases heard. The ruling from the 9th Circuit U.S. Court of Appeals has ruled that previous provisions of a 1996 law passed by Congress were unconstitutional. The law dramatically limited an asylum-seekers access to U.S. courts should they want to challenge a negative decision made by an immigration judge or asylum officer. With the current administration’s recent attempts to discourage people coming to the United States to seek asylum, this ruling will inhibit their ability to quickly deport asylum-seekers for failing an initial asylum interview at the border.

The previous standard was for an asylum seeker to turn themselves into authorities at the border and ask for asylum. From there, they would typically be interviewed by an officer and the officer makes a decision as to whether the asylum-seekers claim is “credible” to his basis of fear. While an asylum-seeker can still petition for asylum with a negative credible fear interview, the already steep climb becomes near insurmountable when fighting the asylum case before an immigration judge.  

In the unanimous decision, the 9th circuit judges decided that the “meager procedural protections” in place for asylum-seekers compounded with the 1996 law meant asylum-seekers were offered little to no recourse in appealing an asylum rejection to a federal court. With this ruling, which is expected to be appealed by the administration, potentially thousands of asylum-seekers would earn the right to have their cases heard in the federal system. The 9th circuit court reached their decision through the “Suspension Clause” in the U.S. Constitution, stating that the clause “gives people…broad power to seek habeas corpus review by the courts,” further citing a 2008 Supreme Court decision which states a person must have “meaningful opportunity” to prove how a law was applied in error.

Government Compiled Dossier of Journalists at Border

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(Español) A San Diego news station (KNSD) has discovered and verified a U.S. government dossier of journalists who reported on the migrant caravan in 2018. The station’s source comes from within the Department of Homeland Security (DHS). This revelation comes after months of journalists complaining of harassment at the border when attempting to enter either the United States or Mexico, which resulted in many passports being flagged for secondary interviews one journalist eventually being denied entrance to Mexico. The journalists were consistently singled out and subjected to secondary screening, which include a lengthy interview process that can last hours. By law, Border Patrol Officers have great leeway in regards to what questions can be asked and what property can be searched when people are entering the United States. It is not uncommon to have an agent search your belonging or attempt to gain access to personal devices, such as phones, laptops, or, in these specific circumstances, photographs on cameras. The agency argues these searches are necessary in order to maintain security at the border in regards to who is entering the country and “collect evidence that might be needed for future legal actions and to determine if [the caravan] was orchestrated,” according to a spokesperson.

Regardless, the whistleblower within DHS has stated the dossiers created go above and beyond the legal constraints of the agency, stating “We are a criminal investigation agency, we’re not an intelligence agency.” Photos released by KNSD show the names of the people along with the titles “organizer,” “instigator,” and “journalist.” The list is comprised of “ten journalists, seven of whom are U.S. citizens, a U.S. attorney, and 47 people from the U.S. and other countries,” according to KNSD. This is consistent with reports from journalists stating the agents were very interested in what they were doing in Mexico, who they worked for, and what they were reporting or photographing, when questioned during their secondary interviews.

This comes months after the Committee to Protect Journalists (CPJ) and Reporters Without Borders warned of potential “chilling” consequences for journalists who attempt to report on immigration issues. Alexandra Ellerbeck, CPJ’s North American program coordinator, has stated “We will meet with CBP today and ask them once again to commit to no longer using secondary screenings as a pretense to harass journalists or gather intelligence,” with Esha Bhandari, of the American Civil Liberties Union adding, “The government cannot use the pretext of the border to target activists critical of its policies, lawyers providing legal representation, or journalists simply doing their jobs.”

ICE Release Infants from Detention

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(Español) Immigration and Customs Enforcement (ICE) has released fifteen infant detainees and their families held at a detention center in Texas. This comes amid outcry and formal complaints from both immigrant rights watchdogs and health expert groups. Over the last few years, ICE has begun detaining entire families seeking detention facilities once they cross the border and turn themselves in to authorities. This includes families with infant children as young as five months old.

Previous issues found from watchdog groups and official reports note instances of infants not receiving proper care. At the most basic, they reported infants who dramatically lost weight while in detention due to the dramatic change in nutrition and diet in the detention centers. There have been reports of infants receiving hepatitis vaccines meant for adults.  In one extreme case, a 27-day old infant was not properly diagnosed with bleeding in his or her brain until it resulted in a seizure.

Despite the release of the fifteen infants and their families, experts still hold there is still very far to go in terms of properly caring for the not only infants held in the detention but also other children. First and foremost, the experts agree that infants and babies do not belong in detention centers. These facilities are not properly staffed or equipped to care for the number of infants and the specific care they need. The most pivotal time in an infant’s life is right after birth when they need almost around the clock care from medical professionals. The facilities are ill-equipped to handle the detainees they have. Calls from experts, watchdog groups, and even Senators call for the administration to end the detention of infants who come into the nation seeking asylum. Given the sensitive nature of the issue and the innocents affected, civil rights groups are continuing to monitor the situation.

El Senado alcanza el umbral para rechazar la declaración del presidente

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(English) Con la deserción del senador Rand Paul, el Senado ahora tiene suficientes votos para rechazar la declaración del presidente de una emergencia nacional para desviar fondos para construir un muro a lo largo de la frontera sur. Anteriormente, la Cámara de Representantes también votó a favor de rechazar la declaración del Presidente. Ahora, con suficientes votos en ambas cámaras, la resolución se dirigirá al escritorio del presidente, quien ha declarado que rechazaría la resolución. Si bien el Senado tiene los votos para aprobar la resolución, no hay suficientes votos para anular un veto presidencial.

A raíz del largo período de cierre del gobierno durante 35 días, el presidente sintió que su mano se vio obligada a rechazar la negativa del demócrata a proporcionar fondos para el muro fronterizo. Esta declaración hubiera permitido al presidente desviar fondos no asignados de otros departamentos. La preocupación entre el Congreso es que el presidente está sobrepasando sus poderes con la declaración de la emergencia nacional. Constitucionalmente, el Congreso es la rama del gobierno responsable de la desviación y distribución de fondos, que generalmente se conoce como el “poder de la bolsa”.

Queda por verse donde el Congreso y los tribunales pueden llegar a un punto muerto con el presidente, en caso de que él vete la resolución y el Congreso no puede reunir los votos para anular el veto. Sin lugar a dudas, habrá una variedad de desafíos para la declaración, independientemente del resultado de la votación del Senado.

DHS Extends TPS Protections for Four Countries

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(Español) Official as of Friday, March 1, 2019, the Department of Homeland Security (DHS) is extending Temporary Protected Status (TPS) for nationals of Sudan, El Salvador, Haiti, and Nicaragua in the United States. On Thursday, February 28, 2019, DHS filed notice of the TPS program being extended until January 2, 2020. Under the TPS program, nationals in the United States whose countries have been ravaged by natural or man-made disasters can apply for temporary work permits which essentially automatically renew every eighteen months. The idea is for those people to have an ability to work and reside in the United States while their home countries recover. Given the original unstable nature of most of the countries to being with, compounded with the disasters they suffer, many of these people have been in the United States for nearly two decades because of the instability of their home country.

During his term in office, President Trump has made attempts to end the programs by withholding renewals of designated countries but has been met with legal challenges along the way. Most recently in October, a federal judge out of California issued an order blocking the administration and DHS from ending the designation statuses of Sudan, El Salvador, Nicaragua, and Haiti. The judge’s reasoning being that the move by the administration was a “pre-determined political agenda.” This led to DHS’s decision to extend the designations for the four countries until 2020.

Immigrant right’s advocates have celebrated the news but with tempered enthusiasm. While the extension helps those from the four countries listed, there are thousands of TPS holders who will not benefit from the lawsuit, as they are not included in it. As the administration has increased their determination to end TPS, the program has gained traction on Capitol Hill and in the public eye. As such, protections for TPS holders will be included in an upcoming bill mainly aimed at protecting so-called “Dreamers” to be introduced in the House of Representatives. The fate of the bill remains to be seen, especially with the divided Congress and a President who is a moving target in terms of what he will accept to sign into law.