Here’s some background: Salomon Ledezma-Cosino illegally entered the United States in 1997. Except for a couple brief departures, he hasn’t left the country. Currently, he has eight children. Only five are natural-born U.S. citizens. Ledezma-Cosino works in the construction industry.
In 2008, Immigration and Customs Enforcement, or ICE, detained him. After several hearings in front of an immigration judge, Ledezma-Cosino stopped fighting deportation and conceded to be removed from the country. However, he sought to cancel voluntary, or removal departure.
The request was denied.
According to the immigration judge, Ledezma-Cosino was ineligible for cancellation because, as a former alcoholic, he lacked good moral character. According to his medical records, for 10 years he drank an average of about one liter of tequila every day. In addition to the chronic alcoholic diagnosis, he’s also been diagnosed with acute alcoholic hepatitis. The condition destroys the liver. He’s had at least one DUI, conviction.
Ledezma-Cosino appealed the denial. His appeal was denied. He petition for review. His review petition was based on 1101(f)(1) violating of his due process or equal protection. In other words, he was being discriminated against because of his alcohol problem, not absence of good moral charter.
The government made a strong argument against cancelling the voluntary departure. Ledezma-Cosino is an illegal immigrant. Illegal immigrants aren’t protected by due process or the equal protection claim. On March 24, 2016, Ledezma-Cosino won. The 9th Circuit Court of Appeals panel agreed with his argument. The Court conceded the government’s point of illegals not having rights, but the Court determined the law the government used to deport him was illegal.
If the government doesn’t appeal the verdict, Ledezma-Cosino can petition to stay in the country or voluntarily leave.
For More Than 50 Years Immigration Law Associated Good Moral Character with Deportation
In a 2-to-1 decision, the 9th Circuit Court of Appeals struck down part of 8 U.S.C. 1101(f)(1). The law outlined the reasons why an illegal immigrant can be deported. One part of the statute focused on good moral character. Among the things considered immoral are things like:
The court had a very simple rational for striking down the law. Judge Stephen Reinhardt wrote this question in the majority opinion:
“Is it rational for the government to find people with chronic alcoholism are morally bad people solely because of their disease?”
Reinhardt wrote the answer, “No.”
Was the Decision to Strike Down 1101(f)(1) a Good or Bad Decision?
Yes, it was a good decision, but a complicated issue. Let’s look at this 50-year-old bad law. The public connected alcoholism with morals, even though there is almost no evidence that alcoholism is a result of bad or lack of morals. Just because someone drinks doesn’t mean they are morally bankrupt. It means the person has an issue to overcome. Whether it is deemed a disease or temporary setback on a person’s life journey depends on a person’s view of alcoholism.
So the problem with the law is that it connects moral character with drinking. Judge Richard R. Clifton, who dissented, wrote the law was applied wrong. He claimed it should be upheld because the person with an alcohol problem doesn’t lack the free will or is susceptible to moral evaluation. He missed the point. Alcoholism doesn’t define a person’s moral, personality, or who they are. Thus, to deport some people because their “habitual drunkenness” makes them have bad morals is wrong.
The Moral Issue
Many people who disagree with the decision may cite the good moral character involved in immigration. According to the Immigration and National Act, or INA, to become a naturalized citizen one must have good moral character. Unfortunately, there’s no clear definition of good moral character. It’s just used to mean the person’s behavior meets the moral standard held by the average American citizen.
Bad, or poor, moral character can stop someone from becoming a naturalized citizen. It can also get an illegal immigrant or permanent resident deported.
It’s Not About Good or Bad Moral Character—It’s About Being Illegal
The complicated part about this entire legal issue is the government is deciding whether to deport someone based on an arbitrary list of moral behavior. However, when an individual enters the country without a visa, or proper documentation, he or she is an illegal immigrant. When an individual enters the country legally, but remains after losing legal status, he or she is an illegal immigrant. They’ve broken the law and is a criminal under immigration law.
Why does the country have to have a reason to deport them? The issue shouldn’t be about Ledezma-Cosino’s past drinking problem or what defines good moral character. Those issues just muddy the waters. Immigration should be overhauled to require those here illegally to return to their native country—no exceptions. Every year, those who enter the country legally and follow the rules are rewarded with citizenship. Those who can’t follow the law shouldn’t be rewarded with citizenship or allowed to stay in the U.S.
Authored by Taelonnda Sewell, LegalMatch Legal Writer
Last year, a Taiwanese woman in labor may have forced a plane to divert to Alaska in an attempt to give her baby American citizenship. It worked, but she was sent back to Taiwan without her American baby.
While she could face a hefty bill for forcing the plane to land, there’s a larger legal issue. According to Alaska state officials, the baby is eligible for U.S. citizenship. Any baby born in flight has the right to be an American citizen if that is where the baby first arrives—even if born in international air space.
Automatic Citizenship vs. Automatic Birthright Citizenship
Children born to two U.S. citizens are automatically citizens. This is different from receiving automatic birthright citizenship, which comes if only one parent is a U.S. citizen. If only one parent is a U.S. citizen at the time of a baby’s birth, the parent must have lived in the country for at least five years after reaching 14 years old for the baby to qualify for automatic birthright citizenship.
Even if one parent is a U.S. citizen, there’s no conditions on the child keeping citizenship. The only glitch is regarding illegitimate children. Typically, automatic citizenship applies—with no conditions—but the U.S.-born father must acknowledge paternity before the child’s 18th birthday. The acknowledgment must be in writing or by court order. In addition, the father must financially support the child until his or her eighteenth birthday.
A baby eligible for automatic birthright citizenship is one who either has one or both parents without U.S. citizenship status. According to the Pew Research Center, at least 4.5 million children live in this country who have at least one parent not authorized to live here. Approximately 4 million illegal immigrants live in the country with their U.S.-born children.
The debate on whether to get rid of the automatic birthright citizenship has raged on for years. Opponents of this type of citizenship claim parents who aren’t allowed in the U.S. shouldn’t be rewarded. Some proponents argue it’s not the parents or the children that is the problem.
Pros of Citizenship by Being Born in the U.S.
1. Birthright Citizenship Doesn’t Guarantee Parents’ U.S. Citizenship
My colleague Jay Rivera wrote in his blog that “anchor babies” don’t give their parents automatic U.S. citizenship. Indeed, having a baby who has automatic birthright citizenship won’t stop a parent or parents from being deported. Yes, once 21 years old, the child can decide to petition for the parents to become citizens. However, the child has to meet income requirements and the parent or parents must meet eligibility requirements. If they were here illegally and left, they probably face a 10-year reentry ban.
2. The 14th Amendment Supports Automatic Birthright Citizenship
Many other countries based their citizenship on bloodlines, or in Latin: “jus sanguinis.” In contrast, the U.S. has long been a nation of immigrants. This is reflected in the 14th Amendment, which grants anyone born on American soil—or airspace—citizenship.
3. Stopping Birthright Citizenship Won’t Solve the Immigration Problem
The U.S. definitely has an immigration problem. According to the U.S. Department of Homeland Security, or DHS, 11.4 million illegal immigrants reside in the country. However, changing automatic birthright citizenship ignores the fact that most people living here illegally arrived after they were adults.
Cons of Citizenship by Being Born in the U.S.
1. Maternity Tourism
For decades, temporary foreign workers, foreign students, international travelers and permanent visa residents and those who’ve entered the U.S. illegally have used birthright citizenship to their advantage. One prime example is the Taiwanese woman who wanted to give birth in America and diverted the plane just to do so. The problem is, temporary foreign workers and foreign students are here to either work or go to school. They are here to travel. They shouldn’t be able to use the system to remain in the United States longer or give their children something that isn’t rightfully theirs to give: American citizenship.
2. Automatic Birthright Citizenship Should Be Eliminated
Automatic birthright citizenship is an antiquated practice. Many countries have already eliminated this practice. America should do so too. No matter how bad the term “anchor babies” may sound, that is what happens. The baby eventually will anchor some relative to America. The child will grow up and may decide to bring the former temporary foreign worker or foreign student back to the U.S. Maybe she will decide to bring a grandparents or siblings to the country. The point is that the baby who receives automatic birthright citizenship is a possible pipeline to American citizenship for others.
3. Automatic Birthright Citizenship Hurts The Immigration Process
The process of giving U.S. citizenships to babies just because they were born on U.S. soil hurts the immigration process. About 779,929 people became naturalized U.S. citizens in 2013. They earned their American citizenship. They worked hard and played by the rules. Granting citizenship to babies just because they were here is a great incentive for more illegal immigration, not less.
4. The 14th Amendment Isn’t Connected to Automatic Birthright Citizenship
Many proponents of automatic birthright citizenship point to the 14th Amendment as the reasons not to get rid of the “right.” Well, they’re wrong. The language of the Amendment has two criteria. The first is one must be born in the United States. The second is the person must be to the jurisdiction of thereof. Both requirements can’t be met by just being born in the country.
To be “subject to the jurisdiction thereof” refers to a citizen not owing an allegiance to any other foreign country. It was designed to ensure people granted U.S. citizenship were loyal to the country and jurisdiction there resided.
In fact, according to U.S. Senator Jacob Howard, the 14th Amendment specifically excluded people born in the country who are foreigners, ambassadors’ families, foreign ministers accredited to the U.S, and Native Americans born within the U.S. and whose tribes retain relations with the federal government.
Should America Continue Automatic Birthright Citizenship?
No. It’s doesn’t make sense to continue automatic birthright citizenship. This system rewards those on maternity tourism who want U.S. citizenship, but not willing to work for it. Besides, American citizenship is too precious just to give away to anyone. Stop the practice now.
Children born in the U.S. because of their parents’ choices should be eligible for U.S. citizenship at the age of 21. Ultimately, it should be their choice if they want to become a U.S. citizen or remain a citizen of their parents’ country.
Authored by Taelonnda Sewell, LegalMatch Legal Writer
Are 3 and 4-year-olds capable of representing themselves in immigration court? A longstanding immigration judge recently made big media waves when he claimed during a deposition that yes, they can, and furthermore, they should.
Jack H. Weil, a senior Justice Department official who trains federal immigration judges, made the statements while giving sworn testimony in a federal court deposition in which he answered questions regarding whether unaccompanied alien children have a legal right to an attorney funded by U.S. taxpayers.
The case was filed by the American Civil Liberties Union and other immigrant rights groups in an attempt to demand that the government provide representation for every child facing a deportation action or other immigration court matter.
The Justice Department is fighting back, and Weil’s longstanding authority and credibility as an immigration judge is one reason why so many reacted with shock, confusion, and outrage in response to his statements.
“I’ve taught immigration law literally to 3-year-olds and 4-year-olds,” Weil reportedly said. “They get it. It’s not the most efficient, but it can be done.” Weil later conceded that admittedly it takes a lot of “time” and “patience” to instruct small children on how to how to appear pro se in a court of law.
The Justice Department has since emphasized that his comments were taken out of context by the media, and Weil has declined to comment further. The case was filed in mid-2014. In a motion responding to the charges, the Justice Department asserted that “nothing in the Constitution requires the taxpayers to provide counsel to minors in immigration court.”
Do Non-Citizens Have Right to Representation?
Weil’s comments were made primarily in reference to Central American children who enter into the country from the southwestern part of the U.S. Thousands enter this way every year, unaccompanied by any adult, and later find themselves unrepresented in immigration court.
8 USC Sec. 1229 and 1362 asserts that aliens have a right to representation during removal or deportation proceeding. However, the Immigration and Naturalization Act has specified that that the government is not under obligation to provide that attorney. A legal disagreement is now stemming from the question of whether or not the government could provide that attorney if it chose to.
Does the 5th Amendment Due Process Law Apply to Immigrants?
Another relevant legal issue in this debate is whether deportation is a civil action or a criminal one.
The Sixth Amendment right to appointed counsel is not extended to immigrants dealing with potential deportation, because such removal proceedings are technically considered to be civil actions.
However, there are Fifth Amendment due process considerations that hover around deportation actions, because deportation is clearly punitive and potentially deprives an individual of his or her liberties. An individual must be detained and then forced to relocate against his or her will, a clear deprivation of liberty.
As such, courts have been careful to incorporate consideration about “fundamental fairness” when weighing issues of immigrant representation.
Is Age a Factor in an Immigrant’s Due Process Rights?
Immigration charges remain the same whether they are aimed at children or adults. Since most unaccompanied children cannot speak English, they are provided with interpreters by the government, who ask questions on behalf of judges about issues such as how they came to the country and what they left behind in their home country. Without a lawyer advising the child, he or she could easily give an answer that limits or eliminates future options, such as applying for asylum or another legal option.
Immigration judges must inform all immigrants facing deportation proceedings that they have a right to representation and that there are free legal services available to them. Courts have consistently ruled that in cases where individuals were not advised on these matters, the rulings and subsequent proceedings were fundamentally unfair.
The rights described above extend to children. Children must be advised of their right to counsel. The INS reached a 1997 settlement with a group of children in the United States illegally (Reno v. Flores) regarding advice during deportation proceedings by agreeing that children in custody must receive written materials outlining deportation actions, verbal explanation of right to judicial review, and written materials of free legal services available to them.
The agreement did not go so far as to legally mandate that children be provided with attorneys during deportation proceedings. The immigration reform bill passed by the Senate in 2013 contained language that would make it the government’s responsibility to bear the expense of representation for children in immigration court, but the bill was dismantled by the 113th Congress.
The takeaway? Legal opinions on whether or not children can, or should, represent themselves in immigration court are still being vigorously debated.
Authored by Danielle Winterton, LegalMatch Legal Writer
One of the most pressing issues of the next 50 years is already beginning to surface. Sea levels are rising, as are incidences of harsh weather conditions and natural disasters. These climate conditions could eventually make cities or even entire nations uninhabitable. Nations such as Bangladesh and the Maldives, which have populated areas that barely rise above sea level, are threatened by partial disappearance underwater. Other nations are experiencing food insecurity or lack of drinking water in some regions.
Sometimes, climate change also triggers human conflict. While it would be easy to blame the Syrian civil war and refugee crisis on simple politics, this is not the case. According to a paper published in March 2015 by the National Academy of Sciences, one primary catalyst of the conflict was a severe drought lasting from 2006 to 2010. This drought made it impossible to farm in rural Syria, driving farmers into the cities in large numbers and fomenting urban unrest. There is also evidence that environmental issues also played a role in the humanitarian crisis and genocide in Darfur.
Many experts predict that the trend towards global instability and waves of mass migration will continue, often affecting some of the worlds’ least affluent and (ironically) least responsible for climate change. As Friends of the Earth CEO Craig Bennett recently noted in an opinion piece for the Guardian, “[...] it would be naïve in the extreme to assume millions of people suffering the worst effects of climate change aren’t going to want to move, and morally bankrupt to deny them this possibility if they’ve contributed next to nothing to the causes. Throw armed conflict back into the mix, and the problems currently being experienced in Budapest or Calais are far from the full extent of the problem.” However, there is no international mechanism to deal with the millions of potential refugees that “the full extent of the problem” will entail.
The United States Must Develop a Response to International Climate Migration
American and global lawmakers have not yet adequately thought through climate migration issues. As discussed in a recent article on Syria, refugee status currently requires past persecution or a well-founded fear of persecution. This persecution can be based on race, religion, nationality, membership in a particular social group, or political opinion. Importantly, the persecution must be perpetrated by either the government or a group that the government cannot control (such as ISIL in Syria). All refugee status is based on human-versus-human problems; there is nothing that can be done under international law when the earth itself turns against the people who inhabit it.
This world dilemma is coupled with a rising tide of anti-immigration sentiment among some US politicians and groups. It seems increasingly unlikely that a scheme to help relocate millions of climate change victims would gain ground in the United States. Currently, the Obama administration is facing backlash for trying to relocate a mere 10,000 political refugees from the Syrian conflict. Yet, nations with strong infrastructures may be the only hope in a future humanitarian crisis of this scale.
As an article published for the International Bar Association noted, the UN has taken baby steps to create an international legal framework that would address the relationship between migration and climate change. More recently, the Nansen Initiative offered an agenda to help protect climate change victims. However, the United States itself will also have to prepare a response that will adequately address our nation’s role in the event of mass global population displacement. Our national immigration infrastructure should prepare well ahead to tackle this problem.
Our Government Must Also Address Domestic Migration
Internal displacement is yet another policy issue that our nation must address. The United States faced Hurricane Katrina, which caused a temporary migration of over a million people and permanently displaced tens of thousands of Gulf Coast residents whose homes were lost. Many experts agree that this disaster was mishandled, causing additional loss and suffering to those involved. Particularly, the government did not protect the environmental and property rights of vulnerable groups or provide adequate assistance to victims.
As mentioned in a special report by the Institute for Southern Studies, the United Nations had already developed guidelines for governments coping with disasters like Katrina --- the Guiding Principles on Internal Displacement. The guidelines state that governments should practice disaster prevention, provide humanitarian assistance, and assist with housing and other infrastructure that would allow people to resettle. With inhabited islands off the coast of Virginia beginning to experience tidal incursions, and many other natural disasters predicted, our domestic policies need to come up to the international standard.
Authored by Alexis Watts, LegalMatch Legal Writer
CNN reports that as of mid-November, more than half the U.S. states have refused to take Syrian refugees. Now, Congress is listening to these states by effectively blocking the Obama Administration’s current refugee plan. This is a backlash against the terrorist attacks that happened recently in Paris. One complication, however, is that many Syrian refugees are running from violence by the same type of depraved individuals who orchestrated this attack.
Congress’ Power to Act
State governments have a limited role, if any, in the immigration policies of the United States. Various states have tried to make life more uncomfortable for certain immigrants by curtailing their ability to drive, go to school, or seek other services. However, no governor would have the power to actually keep Syrian refugees out of their state. So, while state outcry was a concern for some immigration advocates, it was a hollow threat.
Congress, on the other hand, has always regulated immigration. It seems to be listening to a constituency that increasingly feels that some Syrians pose a danger to the country, and is in the process of passing legislation to modify Obama’s plan. If the bill passed, the Secretary of Homeland Security, the Director of the FBI, and the Director of National Intelligence would have to sign off on each individual entering the U.S. under the modified plan. President Obama calls the bill “unrealistic” and the negative comments about refugees “un-American.” As the Office of Management and Budget was quoted, "this legislation would introduce unnecessary and impractical requirements that would unacceptably hamper our efforts to assist some of the most vulnerable people in the world, many of whom are victims of terrorism.”
If this bill passes through the Senate, it will likely be vetoed by the President. The veto would likely be based not only on the bill’s contradiction with Obama’s current immigration plan, but also on the view that it’s mechanism to ensure national security is so impractical. Of course, Congress can override the veto with a 2/3 majority vote in each house.
Is this Bill Really Necessary, Given What We Know Now?
Congress may be reacting to a panic that is not based in empirical fact. While it’s now clear that terrorist groups that have held parts of Syria were involved in the attack in Paris, it is not clear whether any Syrian national was involved. As the AFP recently reported, the “Syrian passport” found at the scene of the Stade de France bombing was almost certainly a fake. In fact, several other passports with identical details have previously been intercepted by authorities around the Mediterranean. A reasonable reaction would be to make certain that refugee documents have not been falsified, rather than to bar entry to the U.S.
It is necessary to consider whether or not this policy meets the humanitarian needs of civilians who are genuinely seeking refuge from the horrors of war. At present time, there are still around 4 million Syrian refugees, including elderly individuals and families with small children, who need a place to stay. Only 10,000 Syrians were going to be admitted in the first place, and gaining refugee status in the U.S. already requires a rigorous background check and security screening process. Making innocent refugees jump through many additional hoops may deprive them of safety, security, and stability rather than increasing our own. In addition, stigmatizing refugees may play right into the terrorists’ message, that the West is intolerant of Islam and merciless.
Lastly, our Congress should look to U.S. history before making key decisions. They should all be wary of knee-jerk reactions to terrorist acts. Many politicians on both sides of the aisle now regret voting to go to war in Iraq based on incomplete information. The destabilization that has occurred in the Middle East due in part to U.S. intervention is part of the current geopolitical crisis.
As several commentators have pointed out, our country has regrettably turned away deserving refugees in the past. At the beginning of World War II, public sentiment ran against giving asylum to Jews who fled from Nazi Germany. Some said that we would not be safe from potential Nazi spies or sympathizers. Some conservatives may argue that Jewish terrorism was entirely a fiction created by Hitler while Islamic terrorism is a real threat. However, even if Islamic terrorism is a very real danger, that should not mean that all Muslims are guilty by association. As we now know through the lens of history, the decision to turn away refugees cost innocent lives.
Authored by Alexis Watts, LegalMatch Legal Writer