Tag Archives: Immigration

3rd Circuit Strikes Down Anti-Immigrant Law in Hazleton

The ACLU’s Blog of Rights reports that the 3rd Circuit Court of Appeals found the city of Hazleton, Pennsylvania’s anti-immigrant laws unconstitutional.

In August 2006, the city of Hazleton passed a law that would punish landlords and employers accused of renting to or hiring anyone the city deems an “illegal alien.” We challenged that law in district court and won in 2007, and the city of Hazleton appealed that ruling to the 3rd Circuit.

Hazleton’s law spawned several copycat measures in other places, including Arizona, so the case has attracted very close interest from supporters of such discriminatory laws as well as their opponents. In today’s unanimous opinion, the court stated that it was “required to intervene when states and localities directly undermine the federal objectives embodied in statutes enacted by Congress.” The Hazleton law, the court said, “attempted to usurp authority that the Constitution has placed beyond the vicissitudes of local governments” and “could not possibly be in greater conflict with Congress’s intent” as reflected in federal law.

This decision comes on the heels of a recent legal victory against S.B. 1070, the racial profiling law law passed in Arizona this summer.


Details of Temporary Injunction against parts of Arizona Immigration Law

Yesterday, federal district court Judge Susan Bolton ruled on the United States Department of Justice’s motion for a preliminary injunction preventing enforcement of Arizona’s SB 1070.  Her 36-page opinion largely grants the injunction against the bill’s most noxious elements: Sections 2b, 5c, & 6 of the law.

The following sections have been temporarily enjoined:

  • Reasonable Suspicion – requires police to verify someone’s documentation status based on “reasonable suspicion.”
  • Papers – makes it a crime to fail to apply for or carry registration papers.
  • Seeking employment – makes it a crime for undocumented people to solicit, apply for, or perform any work.

However, the following sections of the law were not enjoined and went into effect today

  • Limitations of Enforcement – Preventing cities and agencies from limiting enforcement of federal, requiring collaboration with federal authorities, and allowing any resident to sue any agency that adopts a policy that limits enforcement of federal immigration laws.
  • Day Laborers – Makes picking up a day laborer or entering a car as a day laborer in a way that impedes traffic into a crime.
  • Transport & Harboring – Makes it a crime to transport or harbor anyone unlawfully in the U.S. and empowers police to impound vehicles of anyone charged with doing so.
  • Gang & Immigration – Creates a fund for “gang and immigration intelligence team enforcement.”  No profiling here, for sure.

The Arizona Governor has indicated that the State will file an appeal with the Ninth Circuit.

First Circuit Denies Appeal of Chinese Woman on Grounds of Religious Persecution

In the case of Jin Weng vs Eric H. Holder, Jr., Attorney General, the First Circuit Court of Appeals rejected the appeal of a Chinese woman, Jin Weng, who fought deportation to China on the grounds of religious persecution.  Chief Judge Sandra L. Lynch wrote the opinion, which begins as follows:

Jin Weng, a native and citizen of China, petitions for review of a decision by the Board of Immigration Appeals (BIA) affirming an immigration judge’s (IJ) decision denying her petition for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The IJ and BIA rejected Weng’s claim that she has faced and will likely face religious persecution in China as an adherent of Zun Wang, a banned religion in China. The IJ found Weng was not credible because her testimony was inconsistent with her earlier sworn testimony, determining particularly that, in her earlier statements, she did not mention religion but said she was fleeing China and feared returning there because of poverty and other nonreligious reasons.

The IJ did not explicitly separate his findings on the asylum claims about past persecution and likely future persecution. But we and the BIA have inferred from his reasoning that he found that Weng was not credible about the past persecution she claimed to have suffered in China or her alleged fear of future persecution in China, and that she was not credible in her assertion that she left China and fears returning because of religious persecution. Although the IJ discussed some but not all of the documentary evidence Weng introduced to support her claim of past religious persecution, the remaining evidence would not compel a factfinder to conclude that Weng had suffered past religious persecution or feared future persecution or that she was credible about her reasons for leaving China. We deny the petition for review.

First Circuit Rules Against Government on Issue of Mandatory Detention in Immigration Case

In a very interesting case, the First Circuit Court of Appeals, in Saysana v. Gillen, ruled against the government in an immigration case centered around the denial of bond to detainee and the mandatory detention provision of 8 U.S.C. § 1226(c).  Here’s the introduction of the opinion, written by Judge Kenneth F. Ripple:

In 2007, Houng Saysana was taken into custody by Immigration and Customs Enforcement (“ICE”) and held without bond. After agency proceedings in which bond was again denied, he filed this petition for habeas corpus in the district court, challenging the conclusion of the Board of Immigration Appeals (“BIA” or “Board”) that he is subject to the mandatory detention provision in 8 U.S.C. § 1226(c). The district court concluded that the Board had misinterpreted the statute, and it granted the writ. The Government timely appealed. Because we conclude that the Government has adopted an interpretation contrary to the plain meaning of the statute, we affirm the judgment of the district court. We also hold, in the alternative, that, even if the statute were ambiguous, the position of the Government is not a reasonable one.

Further along, Judge Ripple writes the following:

We conclude that the meaning of the statute is clear on the issue before us; the statute contemplates mandatory detention following release from non-DHS custody for an offense specified in the statute, not merely any release from any non-DHS custody. We further conclude that, even if the statute were ambiguous, the interpretation of the Board is not reasonable. Accordingly, we must affirm the judgment of the district court.

Connecticut Lawsuit Alleges Retaliation in ICE Raid

The American Association for Justice reports that residents of New Haven, Connecticut, with the assistance of the Legal Services Office of Yale University, have filed a lawsuit against U.S. Immigration and Customs Enforcement (ICE), an agency of the Department of Homeland Security, charging that ICE agents violated their civil rights in a June 2007 raid in which 29 people were arrested and detained.

According to the complaint, about 20 ICE agents swept through the predominantly Latino neighborhood of Fair Haven, without search warrants or probable cause, and arrested people “based on their skin color and physical appearance.” Fair Haven residents caught up in the early-morning raid were detained without legal counsel and without being informed of their rights, they allege. Some were locked up for weeks.

Plaintiff José Solan-Yangua said in a statement that he was “terrified and humiliated” during the raid. “We are bringing this suit because we refuse to let our families and community live in fear,” he said.

The raids were conducted under an ICE program known as the National Fugitive Operations Program, which was designed to find dangerous fugitives who do not have legal immigration status. According to the lawsuit, agents have strict quotas for arrest numbers, and when the agents in Connecticut failed to meet these quotas, senior ICE officials “amended the program to permit individual teams to count arrests of nondangerous, noncriminal nonfugitives—in other words, bystanders—toward their annual quotas.”

In addition to violations of the residents’ Fourth and Fifth Amendment rights, the suit alleges that the ICE agents violated the Tenth Amendment because the raid was retaliatory and represented federal interference in a local government’s right to self-regulate. Shortly before the raid, New Haven Mayor John DeStefano Jr. had approved a program called the Elm City Resident Card, the first municipal resident card in the country, which federal authorities viewed as a threat to their authority, the lawsuit claims.

The card—which functions as an identification card, library card, debit card, access card for city parks and pools, and a way to pay parking meters—is issued to all residents of New Haven, regardless of their immigration status.

According to the lawsuit, ICE responded by raiding the Fair Haven community two days after the card was approved by the city’s Board of Aldermen. DeStefano told the New York Times that he had no doubt the raid was a response to the card program.

The case is Diaz-Bernal v. Dept. of Homeland Sec., No. 3:09-CV-01734 (D.Conn. filed Oct. 28, 2009).

Roger Williams Law Starts Immigration Clinic

Roger Williams University School of Law continues to blaze an impressive trail.  The Providence Journal reports that the school celebrated the launch of a new Immigration Law Clinic on Wednesday that aims to provide legal aid to immigrants who would otherwise have none, and train a new generation of immigration lawyers.  Professor Mary Holper, the clinic’s director, is supervising an inaugural class of 10 students who started last month.  Holper is an experienced clinical director from Boston College Law School, with nearly a decade of immigration-intensive experience.

“I couldn’t be more excited about adding the Immigration Clinic to our clinical offerings,” said Professor Andrew Horwitz, RWU Law’s director of clinical programs. “The field of immigration law is dynamic and ever-changing and the legal needs of the immigrant community are vast and largely unmet. We will be providing a sorely needed service to Rhode Island’s low income immigrant population while at the same time providing our students with a top-notch educational experience in a burgeoning field of law.”

According to the law school, law student participation in the Immigration Clinic will consist of several components, including:

  • Direct Client Representation. Students will represent non-citizens (detained and otherwise) in their applications for relief from removal before the Immigration Court in Boston. They will argue bond motions for detained clients, conduct direct examination of witnesses, raise evidentiary objections and argue points of law.
  • Case Preparation. Students will research and write motions and memoranda of law, gather documents in support of applications for relief from removal, interview witnesses, draft affidavits and research human rights issues in the countries of removal. Students will also prepare applications for benefits and represent non-citizens in their interviews for such benefits before the local U.S. Citizenship and Immigration Services (CIS) office.
  • Community Outreach. Students will conduct “Know Your Rights” presentations for immigrant communities in Rhode Island and for non-citizens who are detained by the Immigration and Customs Enforcement (ICE) in the Bristol County House of Corrections in North Dartmouth, Mass.
  • Classroom Instruction. Each week, students will participate in exercises designed to develop their lawyering and trial skills while enhancing their understanding of the lawyer’s role in the process handling substantive, ethical and policy issues.

Birthright Citizenship: A Constitutional Guarantee

The American Constitution Society (ACS) has recently released an issue brief by Elizabeth Wydra entitled Birthright Citizenship: A Constitutional Guarantee. Here’s the beginning of this great brief:

Since its ratification in 1868, the Fourteenth Amendment has guaranteed that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Just a decade before this language was added to our Constitution, the Supreme Court held in Dred Scott that persons of African descent could not be citizens under the Constitution. Our nation fought a war at least in part to repudiate the terrible error of Dred Scott and to secure, in the Constitution, citizenship for all persons born on U.S. soil, regardless of race, color, or ancestry.

Against the backdrop of prejudice against newly freed slaves and various immigrant communities such as the Chinese and Gypsies, the Reconstruction Framers recognized that the promise of equality and liberty in the original Constitution needed to be permanently established for people of all colors; accordingly, the Reconstruction Framers chose to constitutionalize the conditions sufficient for automatic citizenship. Fixing the conditions of birthright citizenship in the Constitution—rather than leaving them up to constant revision or debate—befits the inherent dignity of citizenship, which should not be granted according to the politics or prejudices of the day.

Despite the clear intent of the Reconstruction Framers to grant U.S. citizenship based on the objective measure of U.S. birth rather than subjective political or public opinion, opponents of birthright citizenship continue to fight this constitutional guarantee. After the election of President Barack Obama, lawsuits were filed challenging his citizenship, including an action challenging President Obama’s citizenship at birth because, even though he was born in the United States to a U.S. citizen mother, his father was a citizen of Kenya. In Congress, bills have been introduced each year for more than a decade to end automatic citizenship for persons born on U.S. soil to parents who are in the country illegally. In California, signatures are being gathered for a proposition that would create a sub-class of U.S.-born citizens by issuing different birth certificates to children born in the United States to undocumented immigrant parents. Academics and national politicians have added to the movement’s momentum: in recent years, a small handful of academics have joined the debate and called into question birthright citizenship, and, in the 2008 presidential campaign, several Republican candidates expressed their skepticism that the Constitution guarantees birthright citizenship. Though the most prominent proponents of ending birthright citizenship have been conservative, the effort has at times been bipartisan: Democratic Senator—and now Majority Leader—Harry Reid introduced legislation that would deny birthright citizenship to children of mothers who are not U.S. citizens or lawful permanent residents.

Putting aside whether ending birthright citizenship is a good idea as a policy matter—and scholars, notably Margaret Stock, make compelling arguments that ending birthright citizenship would have disastrous practical consequences—the threshold question is whether Congress may properly consider ending automatic citizenship for persons born in and subject to the jurisdiction of the United States at all. (Proponents of ending birthright citizenship themselves seem to be unsure whether they need to amend the Constitution to achieve their goal, or may simply legislate around it—the sponsors of legislation to end automatic citizenship alternate between proposing amendments to the Constitution and simply proposing legislation that denies citizenship to children born in the United States to undocumented parents.)

A close study of the text of the Citizenship Clause and Reconstruction history demonstrates that the Citizenship Clause provides birthright citizenship to all those born on U.S. soil, regardless of the immigration status of their parents. Perhaps more importantly, the principles motivating the Framers of the Reconstruction Amendments, of which the Citizenship Clause is a part, suggest that we amend the Constitution to reject automatic citizenship at the peril of our core constitutional values. To revoke birthright citizenship based on the status and national origin of a child’s ancestors goes against the purpose of the Citizenship Clause and the text and context of the Fourteenth Amendment.