Immigration

  • August 8, 2013
    Guest Post

    by Pratheepan Gulasekaram, Associate Professor of Law, Santa Clara University, and author of the ACS Issue Brief Restrictive State and Local Immigration Laws: Solutions in Search of Problems.

    Since the Supreme Court decided United States v. Arizona last summer (and Whiting v. Chamber of Commerce in 2011), circuit courts have been busy applying the opinion to immigration regulations percolating through the federal courts in their respective jurisdictions.  The Third Circuit in Lozano v. Hazleton invalidated the Hazleton, Pennsylvania employment and rental ordinances; the Fourth Circuit in United States v. South Carolina invalidated sections of South Carolina’s immigration enforcement scheme; the Fifth Circuit in Villas at Parkside Partners v. Farmers Branch invalidated the Farmers Branch, Texas rental ordinance; and the Eleventh Circuit invalidated sections of Alabama’s and Georgia’s immigration enforcement schemes.  These decisions reduce some of the legal uncertainty surrounding the recent proliferation of subfederal immigration legislation.  Notably, however, they also leave some important questions unanswered.  And, they do so in a way that is doctrinally precarious.

    First, based on the Arizona Court’s decision not to enjoin §2(B) of SB 1070, a few provisions of state enforcement schemes in South Carolina, Alabama, and Georgia were left intact.  Following Arizona’s lead, the Northern District of Georgia (on remand from the Eleventh Circuit), rejected a facial challenge to § 8 of the state’s 2011 Illegal Immigration Reform and Enforcement Act, which allows local law enforcement officers to investigate the immigration status of individuals if the officials have probable cause that the individual committed a crime and if that individual cannot produce adequate proof of lawful status.  Fourth Amendment or other constitutional challenges to that provision must now proceed on an as-applied basis, similar to the ongoing litigation challenge to SB 1070’s § 2(B).  Litigation on these provisions will take some time to resolve the important racial profiling and discrimination concerns implicated by local law enforcement participation in immigration matters.

  • June 27, 2013

    by Jeremy Leaming

    While the Senate’s passage of a comprehensive immigration bill may or may not be historic, it’s certainly remarkable. In an era of hyper-partisanship, it is far easier for the Senate to block action -- unless it’s approval of secret surveillance measures -- than it is to pass meaningful legislation or save the nation from outrageous cuts to social safety net and educational programs.

    But for today 14 Republican senators joined 54 Democrats to pass the expansive measure that provides a 13-year long path to citizenship for 11 million undocumented people in the country, provided stringent enforcement mechanisms are in place. The New York Times provides some highlights of the Senate measure that was approved 68 – 32 late this afternoon. Tens of millions are allotted for enforcement measures, such as 20,000 more Border Patrol agents and “700 miles of fencing along the southern border.” Only after the enforcement measures are in place will undocumented immigrants be allowed to start on the lengthy path to citizenship.

    Senate Judiciary Chairman Patrick Leahy (D-Vt.) lauded the immigration bill, saying it honors “our American values.” He said the immigration measure would help “address a complex problem that is hurting our families, stifling our economy and threatening our security.”

    The National Council of La Raza also praised the Senate measure and called today’s vote a “milestone.” But the group’s President and CEO Janet Murguia also noted that like many compromise measures this one “included painful concessions and certainly puts our enforcement-heavy immigration policy into overdrive. But it finally acknowledges that restoring the rule of law requires a legal immigration system that takes the legitimate traffic out of the black market, allows immigrants to arrive with visas rather than with smugglers and enables immigrants who are working and raising families in the U.S. to come forward, go through criminal background checks, get in the system and get on the books.”

    But the bill is nowhere near President Obama’s desk. The House of Representatives controlled by a Republican Party devoted largely to gridlock is unlikely to prove helpful. Reporting for TPM, Brian Beutler noted that House Speaker John Boehner said the House has no interest in passing a comprehensive measure, let alone the one the Senate just approved. “The House is not going to take up and vote on whatever the Senate passes,” Boehner said. “We’re going to do our own bill through regular order, and there’ll be legislation that reflects the will of our majority and the will of the American people. For any legislation, including a conference report, to pass the House, it’s going to have to be a bill that has the support of a majority of our members.”

  • May 9, 2013

    by Jeremy Leaming

    It seems whenever given the opportunity to weaken the judiciary, Sen. Chuck Grassley (R-Iowa) runs with it and in the process spreads lots of misinformation about the federal courts.

    Grassley, who has helped his Republican colleagues in the Senate block or slow-walk President Obama’s judicial nominees, has called for cutting the number of judges on the U.S. Court of Appeals for the District of Columbia Circuit, discussed here.

    Now as the Senate Judiciary Committee begins consideration of the bipartisan comprehensive immigration bill, S. 744, the Ranking Member Grassley has offered 77 amendments to the legislation. Among them is one, dubbed Grassley17, which would isolate immigration court rulings from federal court review. As it stands now, the bill provides for some judicial review. For example, individuals denied citizenship could seek review in a district court or court of appeals pursuant to the Administrative Procedures Act.

    But Grassley’s effort to alter the comprehensive immigration measure would close the door to federal courts, except for one – in Washington, D.C. and only for review of constitutional challenges. Thus if immigration judges improperly deny or revoke citizenship, their actions will largely go unchallenged.

    Not only is Grassley’s effort an affront to judicial review, it is, let’s be honest, a part of a wider attempt to greatly slow or scuttle immigration reform. S. 744 is a rather large bill and far from perfect. It includes stringent enforcement provisions including billions of dollars for the Department of Homeland Security to spend on border enforcement. It also requires undocumented immigrants to wait at least 10 years until they can apply for legal residence and another three years until naturalization, according to The New York Times.

    But senators have offered more than 300 amendments to the immigration reform bill. Seth Freed Wessler of ColorLines says the Republican amendments “would largely gut the promise of a path to citizenship and impose nearly unachievable benchmarks for border security.” Nonetheless Wessler notes Democrats control the committee and are thus likely to hold off many of the amendments. Wessler though notes some of Grassley’s other amendments, such as one that would strike language aimed at protecting “immigrants from being deported because” of anti-immigrant laws, such as the one enacted by Arizona.

  • April 29, 2013

    by Jeremy Leaming

    A federal judge in Los Angeles took a step recently to bolster the nation’s indigent defense system for some undocumented immigrants. It was an all-too-rare legal action to help the most vulnerable among us, and unlikely to be celebrated by opponents of immigration reform.

    But poverty in this country is not exclusive to documented Americans, neither are basic human rights. U.S. District Judge Dolly M. Gee, as Bloomberg reports, moved to address the glaring inequality when she recently ruled that three states must pay for legal counsel for mentally disabled immigrants who are detained for potential deportation.

    Gee said that mentally disabled plaintiffs do not have meaningful access to the legal proceedings against them without counsel. “Plaintiffs’ ability to exercise these rights is hindered by their mental incompetency, and the provision of competent representation able to navigate the proceedings is the only means by which they may invoke these rights,” the judge ruled in José Antonio Franco-González v. Holder.

    As Bloomberg noted, federal agencies took action to ensure the measure would apply nationwide.

    In an April 22 statement, the Departments of Justice and Homeland Security announced “a new nationwide policy for underrepresented immigration detainees with serious mental disorders or conditions that may render them mentally incompetent to represent themselves in immigration proceedings.”  

    In its landmark Gideon v. Wainwright opinion, the Supreme Court ruled that criminal defendants have a constitutional right, secured by the Sixth and Fourteenth Amendments, to legal representation even if they cannot afford it. During a recent symposium sponsored by the Harvard Law & Policy Review and ACS, UNC Law School Professor Gene Nichol argued that one of the legal system’s greatest failures, which mirror the nation’s overall treatment of the poor, is its ongoing inability to provide the most vulnerable among us competent legal help even in civil matters.

  • April 19, 2013

    by Jeremy Leaming

    Senators beholden to the NRA successfully blocked compromise legislation containing a few new measures to promote gun safety, providing, as many quickly noted, another example of the sorry mess Republicans have made of the Senate, albeit with the help of some powerful Democrats.

    Early this year, Sen. Majority Leader Harry Reid (D-Nev.) pushed serious filibuster reform aside to enter into a deal with Sen. Minority Leader Mitch McConnell (R-K.Y.) that was nonetheless trumpeted as an agreement that would curb the use of the filibuster, often requiring a supermajority to move nominations or legislation along.

    After the failed effort to pass modest measures on guns, Salon’s Alex Pareene took down some of the typical excuses for the Senate’s failure, and cut to the point: “The measure failed because of a bunch of asshole senators voted to filibuster it, and they were able to do so because Harry Reid made a deal with Mitch McConnell to preserve the filibuster a few months ago.”

    He concluded that the “mainstream political press” should start giving a more critical look at the “legitimacy of the 60-vote threshold ….”

    Today as authorities hunted for the second suspect of the Boston marathon bombings -- an immigrant of Chechen origin -- a few senators and right-wing pundits moved quickly to undermine consideration of immigration reform now before Congress.

    Elise Foley reporting for The Huffington Post noted that during a Senate Judiciary Committee hearing on immigration reform, Ranking Member Sen. Chuck Grassley (R-Iowa) quickly tied the bombings to immigration reform.

    “How can individuals evade authorities and plan such attacks on our soil?” he said. “How can we beef up security checks on people who wish to enter the U.S.? How do we ensure that people who wish to do us harm are not eligible for benefits under the immigration laws, including this new bill before us?”

    Jillian Rayfield for Salon noted Grassley’s comments, but also provided a stream of Twitter comments from right-wing pundits, like Ann Coulter. Coulter tweeted early this morning: “It’s too bad Suspect # 1 won’t be able to be legalized by Marco Rubio, now,” referring to the comprehensive immigration bill introduced by eight senators, including Sen. Rubio (R-Fla.).