LegalMatch: Immigration Law

Trump Administration Approves of Tougher Visa Checks, Including Social Media Monitoring

With social media becoming a big part of the economy, public discourse, and the average person’s life, there would inevitably be an increased pressure to scrutinize those connections. The Trump administration has approved of social media checks as part of its new immigration vetting procedures. The social media checks will be in the form of questionnaires and will ask for information such as email addresses, travel history, and social media handles from the past five years.

 State Department officials claim that not everyone will be subjected to such checks; officials will only demand information when they believe certain individuals require more “rigorous national security vetting.” Although the Department asserts that these questionnaires are only voluntary for these individuals, any refusal may result in delay of application processing. Many universities and scientists have spoken out against these proposed social media checks, as they may discourage international students from traveling to the United States.

Why Should We Be Concerned?

Aside from whether the White House would need Congressional approval for additional to the current vetting process, there are few constitutional obstacles here. The primary concern would likely be equal protection challenges, as leaving background checks to the discretion of government officials would likely raise concerns about discrimination based on ethnicity (Arabs) and religion (Muslims). These social media checks would probably be on better legal ground if they were required of everyone attempting to enter the country, although such an undertaking would probably put a bigger strain on the State Department.

The second concern would be potential Free Speech “chilling” effects. Although the purported purpose of a social media check would be national security, investigating social media accounts would likely put a damper on free speech. Criticism of the American government or American foreign policy is not the same as support for terrorism, but overzealous immigration officials could interpret social media statements as such.

Proponents of tougher immigration vetting would likely argue that non-citizens do not have the same rights as citizens. However, the Constitution is not just a document that declares the rights of citizens; the Constitution’s primary purpose is to define what the federal government can and cannot do. The restrictions on making laws against free speech and equal protection are restrictions on the government; they apply whether the other party is a citizen or not.

What to Take Away from this Change

The question is not whether the First Amendment applies to immigrants, but whether the national security interests of the government outweighs any potential infringement on free speech or privacy rights.  What kind of information would a social media check reveal about a potential entrée into the country? If the immigrant follows ISIS on Twitter or is Facebook friends with terrorist suspects, which would certainly raise red flags. However, the issue will become to discretion. While it would be easy for immigration officials to flag down potential ties to terrorism from social media, would they flag Facebook “likes” to mosques? Or family relations in countries like Iran or Pakistan? Although a social media check would be fair and neutral based solely on the text, this amount of discretion is ripe for abuse. The White House, and the nation, would be better served if the President’s executive orders contained enough detail so that such discrimination would not be an issue. 

Authored by Jason Cheung, LegalMatch Legal Writer and Attorney at Law

San Francisco Joins Fight Against Trump's Attempt to Defund Sanctuary Cities

After repeated campaign claims that Obama’s executive order on immigration was an extreme overreach of executive power, it doesn’t come as a surprise Trump has issued an executive order of his own that runs contrary to what Obama was trying to accomplish.  In the wake of several questionable orders that have incited national outrage, San Francisco is fighting back and has filed a lawsuit against Trump in an attempt to block the order that would defund sanctuary cities.

What’s a Sanctuary City?

In a nutshell, a sanctuary city is a jurisdiction that limits local law enforcement cooperation with federal immigration agents.  These safe-haven cities don’t inquire into a person’s immigration status and do not use municipal funds or resources to enforce federal immigration requests. 

Although a sanctuary city cannot stop the federal government from enforcing immigration laws within their jurisdiction, federal officials often do rely on the cooperation from local authorities to enforce these laws.  For example, consider when an illegal immigrant gets arrested, is set to be released, and federal officials request local law enforcement to keep the illegal immigrant detained.  This requires cooperation and it’s something sanctuary cities could refuse to do.  In fact, case law suggests local compliance is entirely involuntary; the federal government cannot force local officials to enforce federal law. 

California, Vermont, Connecticut, and Rhode Island are the only states that have laws limiting local cooperation with federal authorities, but, according to the Immigrant Legal Resource Center, 39 cities, San Francisco being one of them, across the U.S. have policies enforcing limited cooperation.  Trumps executive order claims these sanctuary cities are violating federal law because they “shield aliens from removal from the United States”.  The order says state and local law enforcement agencies can perform the functions of an immigration officer and threatens,

“…jurisdictions that willfully refuse to comply…are not eligible to receive Federal grants…”.

Is the EO Valid?

The 10th Amendment, along with case law, tells us the federal government cannot force non-federal entities to do their dirty work.  Herein lies the major problem with Trump’s executive order because it’s asking, or otherwise coercing, states to do so.

Case law also tells us the government cannot threaten large funding cuts to coerce states into adopting federal policies.  While the U.S. Constitution says the federal government can put conditions on the money they give out, case law tells us the government cannot threaten large funding cuts to coerce states into adopting federal policies.  Conditions can be implemented, but they must meet certain requirements.

• The amount of funding to be taken away must be a “reasonable amount”.  Case law tells us that the federal government can take away a reasonable amount of funding, but not all funding.  For example, taking away 5% cut of federal funding has been found reasonable.

• The funding being threatened to be taken away must be relevant to the condition the government is trying to enforce.  If Trump wants to enforce federal immigration policy, the funding he wants to take away must be limited to enforcing that same policy.  Who would be responsible for enforcing immigration policy?  Local law enforcement officials.  Taking away law enforcement funding would be appropriate, however, taking away all funding from a city would not.  Trump’s executive order states sanctuary cities are “not eligible for federal funding, except as deemed necessary for law enforcement purposes…”  This suggests he would take away all funding except for law enforcement, which is contrary to the rule.
  
  
• Referenced. Federal funding requires legislation, which means funding doesn’t just appear out of thin air; it’s granted through legislation.  If the government wants to put a condition on how and when federal funding is given out, the condition must be specifically referenced in the legislation.  Trump would have to get Congress to pass new legislation.  Considering the GOP holds the majority of Congress, this seems feasible, but the conditions still need to be relevant.   
  
  
• Coerciveness. The threat to take away funding cannot be coercive—simple as that.  The Supreme Court has already ruled once before that taking away all of a state’s federal Medicaid money is coercive, so it seems to reason that the same principles would apply in San Francisco’s lawsuit. 

Supreme Court Nominee Could Change the Game

As you can see, Trump’s executive order has quite a few constitutional hurdles to jump before it can be held valid.  Case law suggests the order as written could prove unconstitutional, but we can assume Trump chose his Supreme Court nominee carefully in the sense that he hopes his nominee will further his own political agenda.  If Neil Gorsuch is confirmed as a Supreme Court Justice, there’s a legitimate fear looming that his vote could sway the bench in Trump’s direction.  

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

How Trump Plans to Change Immigration Policy

Since the onset of Donald Trump’s campaign, we’ve been hearing about his plan to build a wall and about his strict stance on immigration issues. Up to this point, we haven’t heard many details regarding these new policies he plans to implement, but we finally got a glimpse in his recent speech out of Phoenix. Although he promises to “Make America Great Again,” can he really follow through with his plans for immigration policies?

Build a Wall

This has been Trump’s priority from the get go. The wall will be built with above-and below-ground sensors, towers, aerial surveillance, and enough manpower to guard the wall, locate tunnels, and keep out cartels. The most interesting part of his plan—to have Mexico pay for 100% of the wall.  Not exactly sure how he plans to make this happen.

In fact, after Trump’s speech, Mexican President Enrique Peña Nieto adamantly insisted that Mexico would not pay for the wall and Mexico’s foreign Minister says this point is nonnegotiable. Although Trump denies ever speaking with him about payment of the wall, Peña Nieto maintains he made this point clear to Trump during their recent meeting.

End Catch-And-Release

Trump plans to detain illegal immigrants until they can be physically deported back to the country they came from, rather than release them just across the border, but he can’t entirely keep this promise either, as many countries refuse to take back their own citizens. Not only that, but this could result in lengthy and unnecessary detaining periods which presents civil rights issues.

Zero Tolerance for Criminals

The day he takes office, Trump plans to remove the 2 million criminal aliens from the country. Other than issue detainers for illegal immigrants immediately upon arrest and triple the number of deportation officers within the department of Immigration and Customs Enforcement, Trump didn’t give much other detail. He did, however, state he plans to pass what he calls “Kate’s Law,” which would mandate minimum sentences for criminal aliens convicted of illegal re-entry.

Hiring 5,000 more Border Patrol agents is also on the list, but there was no mention of the costs associated with hiring this nearly 25% increase.

Block Funding for Sanctuary Cities

Cities that refuse to cooperate with federal authorities will not receive taxpayer dollars. Withholding federal money for compliance with federal policies isn’t a new concept, as it’s regularly done today so this one could fly.  

Cancel Unconstitutional Executive Orders and Enforce All Immigration Laws

In 2012, President Obama granted temporary reprieve from deportation to migrant children. Trump, along with many others, believe these actions were unconstitutional. In 2014, Obama tried to expand this program; Texas and 25 other states challenged the constitutionality of his action. A federal judge stayed the President’s executive order and it remains that way ever since the Supreme Court deadlocked in a 4-4 decision.

Presidents get their powers to issue executive orders only when authority is taken from the constitution, current legislation, or from Congress delegating such power. The law mandates illegal aliens be removed and, according to the federal Judge’s opinion, there isn’t a law in effect that gave the administration the power to issue this order.  Supporters say Congress delegated the power to deal with immigration issues but, with an equally divided court, the Supreme Court effectively refused to answer the question. 

Regardless, Trump would have the authority to revoke Obama’s executive order.  

Only Issue Visas from Countries with Adequate Screening

Trump initially called for banning Muslims from entering the country and later switched to banning Syrian refugees. Now, his stance appears to have softened by claiming only individuals placed through “extreme vetting” will be allowed in, but this could just be a way to mask the discriminatory motives behind his initial harsh stance. 

Trump also stated he would create a list of countries from which immigration will be suspended, where he plans to build safe zones in order for refugees to stay in their home region. Once again, he promises others will foot the bill— “we’ll get the money from the gulf states.”

Ensure Countries Take Their Deported People Back

There are several countries that are uncooperative and refuse to take back their citizens. However, the Supreme Court has ruled we cannot permanently detain these illegal aliens indefinitely, so any illegal criminals must be released after their sentence has been served. 

Trump did not offer a solution on how he plans to force other countries to take back their citizens.    

Cut Off Benefits and Reform Legislation to Benefit American Workers

Trump plans to ensure E-verify, an online system employers can use to check whether applicants are authorized to work in the U.S., is fully utilized. Additionally, no government benefits for illegal immigrants will be issued.  

Biometric Entry-Exist Visa Tracking System

This one is actually already law, but it’s never been implemented or used. Trump wants to begin this process in order to track expired visas. This would require building infrastructures at points of entry and exit, new personnel, and a whole slew of other hurdles, which is why it’s never been implemented. 

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

Court Says Migrant Children Held Must Be Quickly Released, Regardless of Parents' Status

Immigration policy hasn’t always been the friendliest to migrants entering the country illegally, especially young children. Activists and all those in favor of a more lenient policy will be happy with the U.S. 9^th Circuit Court of Appeals’ recent decision that handed down a ruling confirming migrant children who cross the border accompanied by a parent are afforded the same protections as children who cross without one.  The aspect gaining the most attention requires migrant children held in family detention centers be released without unnecessary delay, regardless of whether they crossed the border alone or with a parent.

Why is this important, you ask? Well, in the past, unaccompanied children were the only ones afforded any protection. Situations affecting children accompanied by parents went, for years, largely unnoticed. It wasn’t until members of a nearly two-decade-old class action lawsuit brought the issue to the forefront and requested the court order authorities to enforce the Flores Agreement.

A Little History on the Flores Agreement

Back in the 80’s, a few organizations filed a class action lawsuit on behalf of immigrant children who had been detained by the Immigration and Naturalization Service (INS).  The lawsuit basically challenged the procedures regarding detention, as well as the treatment and release of children detained after illegally entering the country. In 1997, the lawsuit eventually ended up settling and, thus, the Flores Settlement Agreement was born. That Agreement required government authorities to:

1. Release children from immigration detention without unnecessary delay to, in order of preference, parents, other adult relatives, or licensed programs willing to accept custody.
2. If a suitable placement is not available, government authorities are required to place the children in the “lease restrictive” setting appropriate to their age and any special needs.
3. Implement and maintain standards relating to the care and treatment of children in immigration detention.

The Office of Refugee Resettlement (ORR) replaced the INS and now oversees responsibility for the care of these unaccompanied children.  Herein lies the crux of the question before the Court of Appeals.  Does the Flores Agreement apply to all children—unaccompanied and those that are accompanied by their parents? 

Lower court Ruled Yes Based on Contract Law

In July 2015, Judge Dolly Gee of the U.S. District Court for the Central District of California ruled that the government violated the terms of the Agreement.  Not only did she find the detention centers to have deplorable conditions, but she ruled the Flores Agreement applied not just to children who cross the border alone, but to children accompanied by parents as well.

The enforcement of the Agreement is based solely in contract law and that’s where the courts get their power to interpret and enforce such an agreement. This means the courts must consider the contract as a whole and give effect to the mutual intention of the parties; following plain language only controls when the contract terms are clear. Judge Gee ruled the plain language of the Agreement encompassed accompanied children. 

Here’s an excerpt from the Agreement:

“All minors who are detained in the legal custody of the INS.”

All minors.  Looks pretty clear, right?  To further back her decision, the Agreement defines a minor as “any person under the age of eighteen (18) years who is detained in the legal custody of the INS.” Simple contract law tells us that when language is ambiguous, extrinsic evidence of intent is admissible. Judge Gee considered this language as wholly unambiguous and, therefore, even if the government had offered any evidence to a contrary intent, which they didn’t, it wouldn’t have mattered—the language is clear and doesn’t place any restrictions on a child’s travel partner (or lack thereof).

What About the Parents?

The Court of Appeals agreed with Judge Gee’s decision. Not only is the language clear, but, secondly, the Agreement provided special provisions in relation to unaccompanied minors. As Judge Gee reasoned, it wouldn’t make much sense to include extra guidelines specifically for unaccompanied children if the intention was to only applied to unaccompanied minors. Third, the Court of Appeals affirmed that the Agreement included two different definitions of minors that would not be protected—accompanied minors were not one of them.

The unfortunate part of this case is that because the decision rests solely on contract law principles, this means the court had no place to determine issues outside the Agreement.  The Flores Agreement pertains strictly to migrant children—parents aren’t protected.  Since neither court could address any issues outside the contract of Flores, it raises potential issues. 

Where does that leave accompanying parents when the law requires that their children be timely released from detention? The only alternative is to release the children and let their parent(s) be released with them. The government could employ alternative means to detention, but this is definitely an area that will need to be addressed and we’ll likely see the effects of the ruling sooner rather than later.

Authored by Ashley Roncevic, LegalMatch Legal Writer and Attorney at Law

New York to Allow Young Illegal Immigrants an Opportunity Out of Immigration Limbo

In the United States, around 1.4% of students in kindergarten to high school are considered undocumented. Often, the children come to the U.S. when they were young and their parents were undocumented. At the moment, 1.4% means around 1 million children are in the U.S. illegally. Many of these individuals were raised in the United States, speak English, and are trying to become productive members of society.

But due to their immigration status, the 1 million children will not be able to find legal employment and may face detention or deportation.

In New York State though, the State Education Department voted to allow qualifying individuals to receive certifications and licenses for professions in education despite unauthorized immigrant status. This is a great step forward to helping the young and growing population, but it brings a lot of unresolved issues into the light.

What is the situation that undocumented immigrants face? Who benefits from the State Education Department’s decision? Why is this so important in the first place?

When There is No Place To Call “Home”

Under the current immigration law, there are 4.4 million undocumented immigrants. These young individuals who grew up and lived in the United States, unfamiliar with their country of origin, may be forced to return to a country they know nothing about.

These young individuals were brought to the U.S. when they were children. They did not have a choice whether to come to the U.S. or stay in their family’s home country. Now, they live in a country that wishes to deport them to a country that they never considered to be their home.

Along with isolation and fear of deportation, they do not have a right to work and cannot receive welfare or food stamps. The decision from the State Education Department can be a real step forward to help them gain valid employment and become U.S. citizens.

But the Number of People that Benefit From the Decision is Limited

To benefit from the State Education Department’s new policy, all applicants need to qualify under the Deferred Action for Childhood Arrival (“DACA”). Individuals need to apply for DACA and must fulfill the following requirements:

• come to the United States before their 16th birthday
• be under the age of 31 with no valid immigration status on June 15, 2012
• lived continuously in the United States between Jun 15, 2007 to present time
• currently enrolled in school, graduated from high school, obtained GED, or were honorably discharged from the military
• no felony or significant convictions, or three or more misdemeanor convictions, and poses no threat to national security or public safety.

Due to the nature of illegal immigration, it is not clear how many people fall under this category. But, as of 2012, the U.S. government estimates that there are 11.4 million illegal immigrants in the nation. Of the 11.4 million illegal immigrants, only 1 million of them are children and even then, not all will be able to apply for DACA.

A Limited Number Will Benefit from the New Policy, So Why is this So Important?

Right now, immigrants in the U.S. face many struggles to join and integrate into society. But it is far more difficult for illegal immigrants who fear detention or deportation at any moment. They face the options of deportation or accepting a job that may pay less than minimum wage.

As the number of illegal immigrants raised in the United States grows, Development, Relief, and Education for Alien Minorities Act (“DREAM Act”) have been enacted throughout various states. But even then, Acts like the one in California only offer illegal immigrant students a chance to apply for financial aid. It does not give them a path to apply for citizenship.

The reality is that there is no clear, guaranteed way for illegal immigrants to gain citizenship. They may marry a U.S. citizen, they may be sponsored by their employer, or they may apply for asylum/refugee status. In each case, the government will track and regulate those paths to citizenship. It may put relatives that cannot pursue those paths in danger of detention or deportation.

In 2015 alone, 96,519 individuals with no criminal ties were deported. The number may seem high, but in fact 2015 was the lowest year of deportations since 2008. Families were separated, with many U.S. born children forced to follow or say good-bye to their parents and older siblings. The State Education Department’s decision to allow qualified individuals to apply for professional license and certification gives young immigrants a chance to find legal employment. It will give these individuals a chance to become citizens of our nation and forge a path for those that will follow.

Authored by Janice Lim, LegalMatch Legal Writer

The U.S. Can’t Discriminate against Immigrants with Drinking Problems

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 9^th 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 9^th 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:

• Participating in torture
• Participating in genocide
• Having a serious felony
• Convicted of a gambling offense
• Alcoholism

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

Do Illegal Child Immigrants Have a Right to an Attorney?

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 5^th 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 113^th 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

The US Must Respond to Migration and Climate Change

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

 

Terrorist Fears are Now Shaping Response to Syrian Refugee Crisis

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

Who Is an Ilegal Immigrant?

In 2014, there were approximately 11.3 million people in the U.S. who didn’t have the legal right to live in the country. According to the Pew Research Center, the 11.3 million people make up 5.1 percent of the U.S. labor force. Should these people be called illegal immigrants, undocumented immigrants or something else? It really depends on the individual’s circumstances.  

An illegal immigrant refers to a person who has violated some immigration policy or law enforced by the U.S. A person who enters into the country illegally has committed a crime. Thus, the term illegal immigrant does apply. The question is not whether the person is human, as many immigration advocates want to focus on, but if a crime was committed. A person commits a criminal act under U.S. immigration laws if she:

• Enters the country without a visa or valid immigration documents
• Enters or attempt to enter the country at any time or place other than the areas designated by U.S. immigration
• Enters or attempts to enter the country by concealing, misrepresenting, or falsifying a material fact
• Re-enters the country after being deported and without valid visa or immigration documents
• Gain entry into the country using fraudulent or fake documents
• Impersonates a U.S. citizen
• Intentionally commits fraud on an immigration application
• Marries a U.S. citizen in a sham marriage for permanent resident status                                                                                                          

This crime is punishable by six months of incarceration and a fine of $250. This punishment for each illegal entry a person attempts or succeeds in committing. Like other crimes in the United States, the federal government has the burden of proving its case beyond a reasonable doubt. In immigration, that means the government has to prove beyond a reasonable doubt that the immigrant did enter or attempt to enter the country illegally.

What about Undocumented Immigrants?

What about those who arrived in the U.S. legally, but remained in the country without a green card? If the non-citizens were here legally, but overstayed their welcome, they are considered undocumented immigrants. An undocumented immigrant is an individual who entered the country legally, but fails to leave before his visa expires. This was the case for many of the 9/11 hijackers who overstayed their student visas.

Is overstaying a visa a crime? No.

To remain in the country without legal authorized immigration status is a violation of immigration laws. A violation is punishable by civil penalties, not criminal ones. However, civil penalties for undocumented immigration include deportation. Although undocumented immigrants do not have to pay fines or serve jail time, illegal immigrants and undocumented immigrants can both be deported from the United States.  

Authored by Taelonnda Sewell, LegalMatch Legal Writer