Are You Still With Us?

I have a memory from high school that I keep returning to in recent years. Though I usually got a free lunch at school, on this day I decided to bring something from home: a Chinese bun containing “meat floss.” One of my friends bemoaned he’d forgotten his lunch money and was starving. I ripped my bun apart and gave him half. He took one bite and spit it out, proclaiming his disgust. I quietly “agreed” that I didn’t like the bun either, and threw the rest away.

Now as a lawyer, someone who is supposed to advocate for others, I keep returning to that failure to advocate for my own people and culture. Unfortunately, I’m sure many immigrants or their children have similar stories of burying themselves to try to erase their alienation. Now, in the wake of increased violence against Asian communities (though such violence has always been there), it feels strange when allies ask what they can do to support me. I’ve gotten used to fighting for others, but I’ve never really thought about fighting for myself.

I have spoken to some who, like me, grew up as one of the few Asians in their areas, struggling to fit our own identities into the fight for racial justice. How do we collectively organize when we can have very disparate lives? How do we raise awareness of discrimination against Asians to build bridges between all victims of white supremacy, without engaging in an “oppression Olympics?” How do we advocate on behalf of AAPI communities when “AA” often represents Far East Asians only, excluding other Asian American communities, and the “PI” is ignored? How do we fight anti-Blackness when there is so much of it among our people, perhaps in our own families? I’m not sure how to address these questions, but I know that we cannot answer them if we don’t engage with the questions in the first place. And we can’t answer them alone amongst ourselves, but must do so in active dialogue with those we seek to support and seek support from.

This dialogue must also be broader than the narrow confines of “representation” that it is so often confined to. If you truly care about “stopping Asian hate,” then it’s not just representation in TV shows or movies that matters. You have to fight for our inclusion in court rooms, board rooms, and other halls of power. And together we must do so on behalf of Black, brown, and indigenous communities too. Yes, a younger me eagerly browsing the comic stacks could not have imagined that one day Marvel would feature actors like Chloe Bennet and Simu Liu, and I appreciate how their presence will inspire today’s children. But just as important is how these actors use their platforms to loudly proclaim “Black lives matter,” advocate for more diversity in politics, and highlight the struggles of communities beyond our own. Maybe some of today’s younger fans will then discover real-world superheroes as well: emulating Dale Ho’s fight for democracy, Ai-jen Poo’s organizing of vulnerable workers, or Hinaleimoana Wong-Kalu’s defense of Native and trans rights.

I raise this issue of the need for holistic and meaningful representation because I am worried that folks will focus on this battle—increasing representation in media—and ignore all the other work that is needed. Despite being so prepared for other fights for justice, I have seen many feel unmoored by the fight for AAPI communities; it is because, for the first time, they are just starting to reckon with AAPI discrimination and its intersectionalities.

Do you really want to know what you can do as an ally? It’s what I must commit to doing more of myself—learning more about people, communities, and cultures, and finding opportunities for connection, especially ones that exist within our own backyards. If we are not supporting these communities where we live, what good can we do for those elsewhere? Get engaged with AAPI organizations locally. Asian Americans, broadly speaking, are the fastest growing demographic (and voter block) in more and more states. Just here in Philadelphia, we have advocates like Esther Castillo working to address the stigma surrounding mental health, or Anna Perng who fights for disability inclusion. Groups like Asian Americans United have been around for over thirty years. After the Atlanta shootings, I saw so many non-Asian “allies” in Philadelphia sharing social media posts from national organizations; I doubt that they’ve heard of VietLead, the Woori Center, or done any basic research on what local groups are doing in the community.

If there are Asians in your area, then there are Asians who have experienced discrimination nearby, and the burden should not be on them to cure your ignorance. If a lot of the hurt in the AAPI community seems unheard, to some extent it’s probably because there weren’t willing listeners on the other end. Thankfully, in this moment as more of us find our own voices again, I do believe there is finally that audience for our pain and real solutions, instead of the false paeans for policing that end up endangering all communities of color. Ultimately though, what must happen is the acknowledgment that we exist all the time, not just when tragedy and guilt demand it. Long after the news cameras have moved away, the shame and fear in our communities will still be here. Then, we’ll see if you’re still with us.

Chris Lin is an ACS Assistant Director of Chapters, and can be found on Twitter and Instagram at @chrislin412. 

Prosecutors Need to Center Wage Theft in Their Fight for Public Safety

People aren’t safe if they’re being robbed of wages.

In this emergent wave of prosecutor reform, district attorneys must foster a new vision of public safety, centering economic security as an integral piece of a community’s well-being.

Beyond declining certain types of charges (such as drug possession and disorderly conduct), no longer seeking cash bail, and resentencing — efforts aimed at decarceration — the best prosecutors are focusing on a new understanding of public safety, which more broadly encompasses the financial health of their residents.

These district attorneys understand that true safety runs much deeper than the mere protection of the physical body or the integrity of property. Instead, this more holistic understanding incorporates factors that allow individuals and their families to participate — safely and more fully — in society. People aren’t safe if they’re victims of consumer fraud. People aren’t safe if they’re being robbed of wages.

Offices championing economic protection and opportunity — especially for the historically underserved like low-wage workers, people of color and immigrants — are those fighting for the true meaning of public safety.

Wage theft prosecution is not novel; there has been a healthy smattering of these cases in the past. Notably, the Brooklyn DA’s office produced a series of wage theft cases — a story of “greed and deception,” many of which resulted from employers’ failure to pay prevailing wage for government contracts.  More recently, San Francisco DA Chesa Boudin and Los Angeles DA George Gascon teamed up to file a high-profile civil lawsuit against Handy, the home services company, for the egregious misclassification of its workforce as independent contractors.

This shift in work will have effects far beyond putting hard-earned wages back in the pockets of workers and offering meaningful accountability for employers shirking the law and their responsibilities. This new area of casework will transform what and how the work is done.

First, as the system currently stands, many prosecutions arise out of police interaction or incidents reported from the community, but wage theft cases are much less likely to come from a “complaint” to law enforcement or a particular event, as people are often scared to speak up and compromise their livelihood; some are not even aware they are being wronged. (As was the story for many individuals in the Handy case.)

Instead, prosecutors must dedicate investigatory resources and invest in authentic partnerships with community-based organizations; these cases will not materialize without developing trust and connections within immigrant and communities of color, decoupling from the traditional case work-up, and less reliance on the police.

Second, wage theft efforts will reveal the interconnection of economic harms. According to a 2019 survey conducted by the Public Rights Project, nearly 54% of Americans said that they had suffered at least one incident of corporate abuse, including wage theft. And of those who had, eight out of ten said they had also suffered at least one additional harm, such as predatory debt collection, mounting debt, or housing insecurity.

In other words? Wage theft cases are just the beginning for these offices. Once they delve into these communities and the workers’ stories, there will be many more cases to explore surrounding economic security and civil rights.

The growth in wage theft prosecutions is an important trend line to follow in the coming years. As more district attorneys recognize the systemic racism in our criminal justice system, it is crucial they deploy resources focused on supporting the groups that have been historically targeted by law enforcement.

If done correctly, wage theft and other economic fraud cases will illustrate the power and potential of law enforcement to advocate instead of exploit, to protect not merely police. Those cases that side with the community — that center economic opportunity as a lynchpin in public health — will serve as the necessary breakthrough to fulfill the promise of policy reforms.

Jonathan Miller is Legal Director of Public Rights Project; PRP is currently accepting applications to its fellowship due May 24.

 

Free the Immigration Courts from DOJ to Take Politics Out of Immigration Cases

A First Amendment lawsuit by immigration judges against their office in the Department of Justice (DOJ) was stayed by the U.S. Court of Appeals for the Fourth Circuit last week, calling off oral arguments that had been scheduled for today. The immigration judges, through their union, challenged a policy of the Executive Office of Immigration Review (EOIR) that prohibited them from speaking in their personal capacity on any topic “related to immigration law or policy issues.” According to the complaint, immigration judges were denied permission or received no response to requests to speak at events such as legal training programs, law school classes, and even a middle school class. The Fourth Circuit ordered the stay to allow the new administration officials “to become familiar with the issues on appeal and determine how they wish to proceed.” The parties had jointly moved for the stay, suggesting that the immigration judges’ union and EOIR may consider resolving the issue by renegotiating the policy.

A new and more relaxed speaking engagement policy might be a short-term win for the immigration judges, but it could prove to be a long-term loss for the independence of the immigration courts. The fundamental problem underlying EOIR’s restrictive speaking engagement policy is the fact that the immigration courts are not really “courts” at all, but an office within DOJ, a law enforcement agency. Under the current agency structure, immigration judges are the attorney general’s delegates. The cases they decide in immigration court can be taken away and re-decided by him at any time, for any reason, through a process known as “self-referral.” As long as DOJ controls the immigration courts, the attorney general and EOIR retain the power to impose restrictions not only on what immigration judges say and do outside their courtrooms – a possible affront to the judges’ First Amendment rights – but on what they say and do within them – an affront to immigration justice itself.

During the Trump administration, the power of the attorney general to manipulate immigration adjudication was exposed. Trump’s attorneys general used the self-referral power 17 times over four years, nearly four times the rate of any prior administration. Moreover, the attorney generals’ decisions were unprecedented in their scope, purporting to rewrite broad policy questions that even federal prosecutors had believed to be settled. These cases included decisions restricting asylum for individuals fleeing domestic violence or violence against their families that was not controlled by local authorities.

Other cases directly affected the way immigration judges handled cases in their courtrooms. For example, when a Guatemalan youth named Reynaldo Castro Tum failed to show up for his immigration hearings, Immigration Judge Steven A. Morley sought to temporarily close the case to allow DHS time to demonstrate that it had sent notices to the correct address. Instead, Attorney General Jeff Sessions referred the case to himself and announced a decision that immigration judges lack the power to close cases for administrative reasons at all – an issue that was not even presented in the underlying case. That process, known as administrative closure, is not merely a procedural nicety but an essential safeguard for immigrants with valid legal claims to residence. When a U.S. citizen spouse or employer files a petition to sponsor an immigrant who is in removal proceedings before the immigration courts, the immigration judge must temporarily close the case in order for the United States Citizenship and Immigration Service (USCIS) to review the petition. Without administrative closure, immigration judges have no power to do so. They are instead expected to hear the court case and potentially order the individual removed from the country – even someone who has a meritorious petition pending before USCIS.

The startling self-referral decisions of the Trump administration focused public attention on a system that had been broken since its inception. My research has revealed that the location of the immigration courts within DOJ resulted from historical accident, not from coherent notions of good government or just adjudication. In 1940, President Franklin D. Roosevelt sent Undersecretary of State Sumner Welles to meet with Hitler, Mussolini, and others about the state of war and future peace in Europe. Welles returned home convinced by rumors of a “fifth column” of Nazi sympathizers who looked like locals and would undermine the Allied nations from within. Welles convinced Roosevelt to move the immigration services from the Department of Labor, where they were viewed as part of workforce development, to DOJ to catch would-be spies and saboteurs. Though Roosevelt had resisted congressional pressure to make such a move for over a year, within three days of Welles’ recommendation, it was done.

In fact there was no “fifth column”; the rumor was largely Nazi propaganda designed to stoke fear and undermine Allied morale. It worked then, and its effects are tragically still being felt in the immigration courts today. Attorney general control over the immigration courts has remained in place for eighty years largely because, before the Trump administration, attorneys general rarely intervened in immigration cases. A movement to give the immigration courts greater independence gathered some momentum in the 1990s, but the events of 9/11 once again shifted the country’s focus. As President Bush and Congress responded by creating the Department of Homeland Security, the best that could be accomplished was to keep the immigration courts in DOJ, separate from the immigration enforcement activities of DHS. The risks of leaving the immigration courts in a law enforcement agency headed by a political appointee were shrugged off again until 2017, when the actions of Trump’s attorneys general exposed the ways that the system can be manipulated to achieve political goals.

The Biden administration’s willingness to review DOJ’s speaking engagement policy may make life a little easier for immigration judges today. But if relaxing a few restrictive policies has the effect of deflecting attention away from the dangers of having the immigration courts within a law enforcement agency in the first place, it may result in another tragically missed opportunity for fundamental reform. As long as the immigration courts remain part of DOJ, the possibility of abuse “lies about like a loaded weapon,” to borrow a phrase from Justice Robert H. Jackson, for any administration to use the immigration courts to further any political goals.

To prevent further abuses, President Biden should call for Congress to create independent, Article I immigration courts, similar to the U.S. Tax Court or the U.S. Court of Federal Claims. Judges on these tribunals are appointed by the president subject to the advice and consent of the Senate, but thereafter are insulated from politics for the remainder of their terms. Moving the immigration courts from DOJ to an Article I court system would not change the underlying immigration laws or DHS’s right to enforce them. It would simply ensure that immigrants receive a fair hearing in the courts of the United States, insulated from the shifting winds of politics.

Alison Peck is Professor of Law and Co-director of the Immigration Law Clinic at West Virginia University College of Law and the author of “The Accidental History of the U.S. Immigration Courts: War, Fear, and the Roots of Dysfunction.”

 

 

 

Arab-American Representation and Identity in American Society

As an Arab-American in the progressive law and policy space, it is sometimes difficult to navigate the amount of power, or lack thereof, that Arab-Americans hold. Representation, especially in positions of power and influence, is rare. I often feel that it is rare to see people in positions of power who look like me.

Oftentimes, when society, organizations, or individuals think about race, they look at it through a prism of a white/Black binary, failing to look at the many experiences that do not fit into either category. Beyond that, many people become confused about who exactly is an Arab-American, and where do they fit in this societal prism. I believe that this lack of awareness, whether purposeful or due to plain ignorance, acts as a hindrance to Arab-Americans who are attempting to advance their careers.

While there are a number of factors why Arab-American representation is lacking in positions of authority, I believe that much can be traced to our country’s long and disturbing history with race. As an Egyptian, I find that many people do not know where to place me in the white/Black binary that dominates America’s construction of race. The federal government puts me into the white aisle, as North African is, curiously, grouped in with Caucasians. It is imperative that the U.S. government begins to implement a categorical system that fully captures the diversity of the American people. Being labeled as ‘white’ when I am Egyptian strips away not only how I identify myself, but also makes a mockery of my experiences, which does not afford me the privileges that being white generally entails. On the other hand, individual people place me wherever they wish – white, Black, Arab, Asian – I have heard it all.

As Khaled Beydoun writes, “The OMB’s [Office of Management and Budget] designation of Arab Americans as white by law is rooted in early- to mid-twentieth-century immigration and naturalization jurisprudence… Nearly 110 years after the first Arab immigrant came before a judge seeking citizenship, Arab Americans still find themselves interlocked between an existential and legal paradox: per se classification as white, but pervasive profiling and policing as pariah.”

The Arab-American community is one which is incredibly diverse, and I think that is lost upon many Americans. Arabs come from at least a dozen different countries spread across at least two continents. Arabs make up every religion, or no religion. Arabs come in all shapes and sizes. Further, many people who are grouped into the “Arab” construct do not even personally identify as “Arab” but find it easier to do so because they do not fit within the American societal “boxes.” In a nutshell, Arabs are people and make up all the diversity and nuance that other Americans make up. This misunderstanding and “othering” of Arab-American individuals denies true recognition and acceptance of us and can sometimes act as a hindrance to visibility within the legal and political fields.

Arab-Americans must be more thoroughly included in American, national discourse, and that can begin with full recognition and the dismantling of the extremely binary view on race that American society has. It can continue with conscious efforts to educate people about Arab-Americans and the history of a region of the world that is too often simplified in ways that removes much of the history and diversity which it has. As we close out Arab-American heritage month, I am hopeful that continued conscious efforts to educate people about Arab-Americans can lead to more accurate representation within American society.

Sam Fouad is the Assistant Director of Network Communications at ACS and can be followed at @_saf155

Ensuring a Diverse Federal Judiciary Goes Beyond the President’s Nominations

On March 30, President Biden released his first slate of federal judicial nominees. The individuals he nominated demonstrate that this Administration recognizes the importance of diversity in our federal courts. Moreover, this particularly diverse slate, exemplifies an understanding that diversity comes in many forms, and it is critical to have nominees that bring a diverse set of perspectives to our nation’s judiciary. As more vacancies are filled, nominees who bring personal and professional experiences that are not currently well represented on our courts must continue to be a priority.

The need for racial and gender diversity, and other critical representation on the bench cannot be overstated. The diversity of President Biden’s nominees so far - both in the judicial and the executive branches - have made headline news. What is less talked about, however, is the need for diversity of professional experiences. Of the first slate of judicial nominees, four of the eleven have experience as public defenders, including two of the Circuit Court nominees.

Why is this important? Public defenders, who play an instrumental role in our adversarial justice system in ensuring meaningful due process, bring a perspective to the bench that is currently not meaningfully represented. A 2019 study by the Cato Institute found that there are four former prosecutors to every former criminal defense attorney serving on the federal bench. Between 2009 and July 2015, 41 percent of President Obama’s nominees for the federal judiciary had served as prosecutors, compared to 14 percent who had public defender experience. On the federal appellate courts, only approximately one percent of judges have spent the majority of their careers as public defenders or legal aid attorneys. And, on the Supreme Court, we have to go back to Justice Thurgood Marshall to find a justice who represented defendants in the criminal-legal system.

It is critical to have a justice system that includes a range of perspectives. The first step has been taken, with the President nominating several former public defenders to become federal judges. Now, Senators have a responsibility to ensure a diverse bench as they fulfill their consent role, and part of that diversity must be in legal experience.

Having worked on judicial nominations in the executive branch and in the U.S. Senate, I have not heard Committee members ask former prosecutors about whether they can be fair to defendants because they have, in past cases, advocated for a defendant to be found guilty, sentenced to jail, or even given the death penalty.  Nominees who are former prosecutors have not had their ability to follow the law questioned or looked upon skeptically because of their job representing the government.

Current and former public defenders must also be afforded the assumption of being a fair arbiter and should not be asked about whether they can enforce sentencing laws or impose the death penalty where applicable because in the past they have argued against it. Their role in fulfilling the right to counsel for those accused of violating criminal law, as guaranteed by the U.S. Constitution, should not translate into being held accountable or stigmatized for any of their clients’ alleged conduct.

As the Senate Judiciary Committee prepares to hold hearings for these new nominees, their staff members are researching the nominees’ records and drafting questions. Because of the professional responsibility public defenders have to their clients, they are more likely to have been public in their positions on sentencing and the death penalty, and have likely called out the government when it has taken actions that have been prejudicial or discriminatory to defendants. Senators must recognize that those lawyers were doing their job, having taken an oath to defend their clients, who had a constitutional right to legal representation. And, if confirmed, those same individuals will take an oath to administer the law in a fair and just way – and that is what we expect and demand of them.

Senators must evaluate each nominee on their qualifications and their ability to protect critical legal rights and protections for all Americans. No matter which side of the courtroom a nominee has previously stood, they must be treated with the same respect and objectivity – and be asked the same types of questions in their hearings. If the goal is truly to have a fair justice system, and have judges who represent the diversity of backgrounds and experiences that represent our nation’s values, we must hold all nominees to the same standard.  Their past records must be put into context of the professional duties they were fulfilling.  A judge must uphold the integrity and independence of the judiciary, and Senators must explicitly acknowledge that both former public defenders and prosecutors can do that, and that is what they must ensure in the confirmation process.

Amanda Fuchs Miller, president of Seventh Street Strategies, is a former Senate Judiciary Committee counsel.  She has worked on judicial nominations in the U.S. Senate, at the U.S. Department of Justice, and for several advocacy organizations.

Understanding Prosecutorial Discretion in Immigration Policy and Recommendations for Moving Forward 

Prosecutorial discretion refers to the Department of Homeland Security’s authority to choose whether or not to take enforcement action against a person or group of people. For example, when DHS chooses to refrain from enforcing the law against a mother legally eligible for immigration arrest or detention, discretion is exercised favorably. Prioritization of individuals or categories of people whom the Department targets for enforcement and removal is necessary because the government has limited resources and because Congress has delegated to the Department the responsibility of setting priorities and administering immigration law.

The existing model of prosecutorial discretion in immigration affairs is inadequate, and in some instances, misguided. Arbitrary immigration enforcement decisions have striking impacts on undocumented noncitizens and their families. We need a bolder standard for prosecutorial discretion and greater mechanisms for oversight and accountability when such standards are ignored. As the Biden administration considers how to develop and implement prosecutorial discretion policy in immigration cases, the history of how this discretion has been applied provides crucial context.

With a congressional stalemate over immigration, prosecutorial discretion emerged as a centerpiece of Obama Administration policy, but this kind of discretion has been part of the immigration system for decades. Much of this history is covered in Beyond Deportation, beginning with the Eisenhower Administration and through the midpoint of the Obama Administration. Deferred action is one form of prosecutorial discretion used to protect noncitizens with compelling equities, but long operated as a secret program accessible only to elite lawyers and advocates. Transparency about deferred action is thus important, as is formalizing and centralizing its use at U.S. Citizenship and Immigration Services (USCIS), issuing written decisions when deferred action is denied, posting information about the application process, and maintaining statistics about deferred action decisions.

The enhanced tools USCIS has created for sharing information about DACA (Deferred Action for Childhood Arrivals) and steps by Immigration and Customs Enforcement (ICE) to track deferred action cases offers a new paradigm through which to discuss why transparency matters. Without these remedies, noncitizens that possess similarly relevant equities will face unequal hardships. For an analysis of deferred action data collected informally by 24 ICE field offices between October 1, 2011, and June 30, 2012 and resulting recommendations for data collection, recordkeeping, and transparency in deferred action cases, see My Great FOIA Adventure and Discoveries of Deferred Action Cases at ICE. For a discussion of the relationship between prosecutorial discretion and employment authorization that describes the historical precedent for allowing qualifying noncitizens to apply for work authorization based on a prosecutorial discretion grant, see Demystifying Work Authorization and Prosecutorial Discretion in Immigration Cases.

Prosecutorial discretion and discretion, more broadly, figured greatly in related policy changes undertaken by the Trump Administration, including but not limited to the travel bans, the curtailment of refugee numbers, and the increase in “no-court” removals. These were, themselves, discretionary choices that are inconsistent with and undermine the values of compassion and efficiency that should be central to our immigration policy. These policies are discussed in detail in Banned, which includes a qualitative research component based on interviews with twenty-one affected families, former government officials, and attorneys/advocates on the ground.

In the first one hundred days, the Biden administration has taken good first steps which includes issuing “interim” civil enforcement priorities, creating a process by which cases can be reviewed, reaffirming the role of prosecutorial discretion in immigration law, and preserving the security of Deferred Action for Childhood Arrivals, itself a form of prosecutorial discretion.

Moving forward, the Biden administration should issue bold prosecutorial discretion policy that is agency wide, with attention to defining prosecutorial discretion and its history; reaffirm previous memoranda on prosecutorial discretion, including the instruction by the former INS Commissioner Doris Meissner that officers “are not only authorized by law but expected to exercise discretion in a judicious manner at all stages of the enforcement process;” add deeper language on the kinds of enforcement actions which are “against DHS policy” similar to the language in a memorandum by former ICE head John Morton involving victims and witnesses to crime; expand of the “location” at which enforcement actions should be discouraged if not dismantled, among them schools, hospitals, places of worship, and courthouses; include a general policy against large scale enforcement actions; and reaffirm that discretion should be exercised at the earliest stages of the immigration enforcement process, consistent with policy guidance dating back to at least 1976.

Looking specifically at the current interim guidance on enforcement priorities and discretion, the Biden administration should ensure that its “mitigating factors” are applied to all three enforcement priorities. Further, it should revisit the scope “priority two”, which pertains to recent entrants, and provide an exception for humanitarian cases. Additionally, the guidance should be more explicit about the importance of using prosecutorial discretion at every stage of the enforcement process as opposed to just offering a menu. Also, future guidance should center on the importance of discretionary decisions before removal proceedings are triggered. DHS attorneys should play a role in reviewing Notices to Appear and determining whether those Notices should be filed with the immigration court. Future guidance should also expand the list of humanitarian factors that should receive “particular attention” when making discretionary decisions and include those harmed by now discredited or repealed policies such as family separation or the Muslim or Africa Ban as a factor deserving of protection. Finally, the reporting requirements already included in the interim guidance should be specific enough to include the stages at which discretion was exercised, the numerical outcomes from the case review process, and data along lines of nationality and race. These reports should be publicly available.

I am encouraged about the future, and hope that future policy on prosecutorial discretion is guided by the rule of law, history, and equity.