Musings on Immigration

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$295,000 Christmas present from ICE

In 2008, nine individuals sued more than thirty federal and local law enforcement officials (personally), pursuant to Bivens v. Six Unkown Agents Federal Bureau of Narcotics, 403 U.S. 388 (1971) challenging a pattern and practice in New Jersey by the Immigration and Customs Enforcement (“ICE”) of conducting dragnet, warrantless, nonconsensual raids on immigrants’ homes, which resulted in egregious violations of Plaintiffs’ clearly established Fourth Amendment rights. 

All of the plaintiffs lived in New Jersey, and most were citizens or lawful residents of the United States, when armed agents of Immigration and Customs Enforcement (“ICE”) entered their homes without judicial warrants, or voluntary consent from any household member, in violation of Plaintiffs’ clearly-established constitutional rights.  During the course of eight separate raids on Plaintiffs’ homes, SWAT-style teams of ICE agents struck in the pre-dawn hours, entered the homes by deception or physical force, searched the entire house, and proceeded to question all of the occupants about their immigration status.  In several homes the ICE agents terrified household members (including young children) by pointing guns at them, threatening to take children away from their parents, promising deportation or loss of residency status, and telling them that they could not speak to an attorney and/or that they had no legal rights.  In other homes, the agents deliberately disregarded evidence of lawful residency, detained individuals with every right to be in the United States, confiscated or damaged their property, and – in one case – threatened to come back and do it again.
All nine individuals will now share in a $295,000 settlement. This works out to a little under $10,000 per overzealous law enforcement official and about $42,000 for each of the seven families involved- what a nice Christmas present!

Same-Sex Marriage and Immigrant Rights - the Impact of DOMA on Immigration Reform

by Hiba Ghalib, Associate Attorney

This past weekend was a busy one for both gay rights activists and immigrant advocacy groups.  After the Supreme Court announced last Friday that it had agreed to hear two cases that challenge laws challenging same-sex marriage, over 50 groups supporting gay rights and immigration reform joined together to write a letter to the White House requesting President Obama hold off on deciding any immigration cases involving same sex couples until the Supreme Court issues its decision on gay marriage.

In 1996, Congress enacted the Defense of Marriage Act, most often dubbed DOMA, denying same-sex couples federal benefits, including immigration benefits.  (It was signed into law by then-President Bill Clinton).  This prohibited U.S. Citizens from sponsoring their foreign national spouse for permanent residency if their spouses were of the same sex. To date, the administration continues to enforce DOMA and uses it to routinely deny green card applications from legal same-sex couples, even after the Department of Justice announced in January 2011 that it would no longer defend DOMA in court.  Until a decision is reached questioning the constitutionality of DOMA, the Executive Branch will continue to enforce it. 

Since it has not been long since the recent election cycle and the nonstop campaign ads, the issues the American people find most important are still echoing in our ears.  After the economy - immigration reform, health reform, and gay marriage are among the top issues voters identified as important to the American people. 

While many have criticized the slow progress of immigration reform in recent years (if you can even call it that), it’s not hard to see how quickly the legal climate is changing generally.  Only 26 years ago, the same High Court that has agreed to take a case challenging same-sex marriage upheld laws against sodomy (a decision it reversed in 2003).

Whether or not you support gay marriage, the implications of the Supreme Court’s decision on gay marriage will clearly have ripple effects that impact immigration reform and groups in support of both have set aside any differences yesterday in recognition of the notion encapsulated by John F. Kennedy: The unity of freedom has never relied on uniformity of opinion.”

One can expect that this quick changing legal climate will cause the ‘storm of reform’ that’s currently hovering over the area of gay marriage rights to soon find its way over other lands, including immigration reform, and we can only hope that along with the clouds of change, it will rain down progress.

Read the article HERE.

Allowed to Work in the United States, but Not Allowed to be Physically Present in the United States - What?

by Rebecca Rojas, Associate Attorney

Today, the Detroit News reported that Michigan has joined the two states — Nebraska and Arizona — that have banned the issuance of driver's licenses to undocumented young people who qualify for Obama’s deferred action program (also known as the DACA program).  By way of background, the DACA program gives immigrant youth who were brought here as children and who have grown up in the United States, a two-year employment authorization card.  This card permits the holder to work anywhere in the United States.

The apparent rational behind Michigan’s decision to deny driver’s license to these young people is that they are “unlawfully present” in the United States.  The article notes Michigan’s Secretary of State “apparently reached this decision, notwithstanding federal authority stating that although a DACA designation may not confer legal status on that individual, the person is nonetheless, 'legally present’ within the United States.”

In fact, the issue of whether someone could be permitted to work in the United States, but yet not be entitled to be in the United States was reviewed by a federal court in 2008. This court found that the argument that someone be permitted to be employed in the United States, yet not be allowed to be physically present in the United States was “untenable” and “bewildering.”

It is difficult to see how Michigan’s position could be anything but untenable and bewildering.  

First, these young people have federally issued work cards for employment in the United States.  

Second, granting them licenses would allow Michigan to regulate them and to ensure that they have the appropriate insurance and registration.  

Third, it would allow Michigan to collect additional driver’s license fees and taxes.  

Fourth, granting license would enhance Michigan’s knowledge about who is living and working in its community, which would increase security.

In short, it appears that the decision to deny license to these young people is nothing more than a mean-spirited attempt to discriminate against them.  Like most discrimination, it has no rational basis.

You can read the entire Detroit News article HERE.

Arresting and Deporting Pregnant Woman For High Beam Violations

The title of this article may sound absurd.  In fact, I would not be surprised if this were an article in the satirical fake news Onion, a satirical entity that makes up fake news for the sake of giving you a good laugh.  Yet, sometimes fact is stranger than fiction, and this article in the Charlotte Observer last week is no joke.

A Mexican woman was arrested for driving with her high beams.  She has been in the United States since 1991.  She does not have a criminal record.  She was placed into removal proceedings during her arrest.

To add insult to injury, her proceedings were scheduled the week after her baby was due.  No consideration was given that babies are not always born on the day they are due, but in fact sometimes later.  Her baby was born on Thursday, the day before the scheduled date.  Immigration and Customs Enforcement finally had her proceedings terminated.  She was given Prosecutorial Discretion, where Immigrations and Customs Enforcement can terminate proceedings for an individual if they are not a danger to society, have been in the United States for a significant period, and have many ties to family and community in the area.

I have a few thoughts about this situation.  First, since when is anyone ever arrested for high beams?  I do not see any white females getting arrested for using their high beams.  The officer who arrested her should be suspended not only for poor judgment, but making life miserable for a pregnant mother.

This situation further highlights a flaw in the way Prosecutorial Discretion is used, where ICE is supposed to prioritize not trying to deport people who are not a danger to society and has ties to the community and family.  Statistics show that  ICE has been unwilling to implement this policy, according to statistics released in June by the American Immigration Lawyers Association.

In this case, it took months, and only after a baby was born, for ICE to be magnanimous that it was okay for her to stay, even though she has no legal status.  Would common sense not dictate that she should not have been arrested in the first place or placed into removal proceedings?  Yet, that is unfortunately the absurdity of the situation and the agreement between local authorities and the federal government, supposedly to catch dangerous immigrant criminals.  Since when should removal proceedings be run on the following philosophy - "arrest first, ask questions later, and then maybe, just maybe, if you have a baby, we will not deport you."