Category Archives: immigration

Follow up on Arpaio: Yes, I did it but it wasn’t my fault

Sheriff Arpaio has been on the news multiple times for his harsh tactics and opinion on immigration.  I came across this interesting article in Courthouse News, where Arpaio admitted that he violated the law and then shifted all of the blame to his attorney and the people under him for following his orders.

Article on the preliminary injunction that the Court ordered.

Article on Arpaio being brought on contempt charges.

via Courthouse News Service.

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Follow up: Rulings Against Sheriff Arpaio

A while back images where shown of Sheriff Arpaio, from Arizona, having 220 immigrants march in a line with shackles.  (One story here).  This story, among others, prompted lawsuits against Arpaio. The first case granted an injunction against Arpaio and the Sheriff’s Office.  The second case ruled that the Human Smuggling Act (which allowed the arrest and prosecution of immigrants).

It is interesting to point out that these decisions came before the 9th Circuit Court of Appeals decision (Oct. 8, 2013), discussed here, which held Arizona S.B. 1070 was void and preempted.

In Manuel de Jesus Ortega Melendres v. Arpaio, No. CV-07-02513-PHX-GMS (D. Ariz. Oct. 2, 2013), U.S. District Court Judge Snow granted an injunction and listed reforms in which Arpaio and the Maricopa Sheriff’s Office must comply with.  This list includes, for example:

  • Supervisors shall provide effective supervision necessary to direct and guide Deputies.  Some of these include, for example: Respond to certain arrests; confirm the accuracy and completeness of Deputies’ daily reports;and hold Deputies accountable.
  • Supervisors enforcing Immigration-Related laws will directly supervise law enforcement activities.
  • Appointment of a federal independent monitor;
  • Hiring a Community Liaison Officer who is a sworn Deputy fluent in English and Spanish; and
  • Video recorder in every patrol car to record every traffic stop.

In We are America v. Maricopa County Bd. of Supervisors, No. CIV 06-2816-PHX-RCB (Sept. 27, 2013), U.S. District Court Judge Broomfield enjoined Arizona’s Maricopa Migrant Conspiracy Policy.

Sheriff Arpaio created this policy based on the Human Smuggling Act, Ariz. Rev. Stat. 13-2319 which allowed for the arrest and prosecution of immigrants for “conspiring to transport themselves within Maricopa County.”

District Court Judge, like the reasoning of the 9th Circuit a few days later, ruled that the statute was preempted by the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq.

The court also certified the class, which included “all individuals who pay taxes to Maricopa County and object to the use of county tax revenues to stop, detain, arrest, incarcerate, prosecute or penalize individuals for conspiring to transport themselves, and themselves only, in violation of Ariz. Rev. Stat. 13-2319 [Human Smuggling Act].”

via Courthouse News Service.

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Follow up on Arizona S.B. 1070

You might remember the very controversial legislation against unauthorized aliens in Arizona.  Arizona Governor Jan Brewer was launched into the spotlight when she signed this bill.  The ruling of the 9th Circuit is important because it points to the exclusive control of the federal government of immigration.

In Valle Del Sol v. Whiting., No. 12-17152 (9th Cir. Oct. 8, 2013), the 9th Circuit Court of Appeals ruled that S.B. 1070 was void because it is vague and incomprehensible to a person of ordinary intelligence; and (2) it is preempted by federal law.

Setting aside the vagueness and incomprehensible nature of the law, the Court explained preemption.  The 9th Circuit focused on three main arguments: (1) federal government’s exclusive control over immigration policy; and (2) how Arizona’s law conflicted with federal’s laws.

The 9th Circuit first commented on why the federal government has this control.

Federal control over immigration policy is integral to the federal government’s ability to manage foreign relations:

“Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws.  Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad.

It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.”

Then, the Court explained why the federal government has exclusive control over immigration and not the states. The Court stated:

Congress did not, however, grant states the authority to prosecute [section] 1324 violations, but instead vested that power exclusively in the federal authorities.  Thus, “the inference from these enactments is that the role of the states is limited to arrest for violations of federal law.”

(citations omitted).

Lastly, the 9th Circuit pointed to the conflict of laws of Arizona and federal statutes as follows:

  1. First, Arizona’s statute provided “additional and different state penalties.”
  2. Second, Arizona “conferred upon its prosecutors the ability to prosecute those who transport or harbor unauthorized aliens in a manner unaligned with federal immigration priorities.”
  3. Third, Arizona “criminaliz[ed] conduct not covered by the federal harboring provision.” Arizona also “criminalizes encouraging or inducing an alien to come to or reside in Arizona.”

 

As a side note, if you are interested in standing and organizational standing, the 9th Circuit Court of Appeals discussed the standard and explained how plaintiffs had standing.

via Courthouse News Service.

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Non-existing law was applied when deporting U.S. Citizen

This is a very interesting case regarding immigration and obtaining citizenship through a U.S. citizen parent.  Basically, this case used Article 314 of the Mexican Constitution when determining whether to deport individuals who claim American citizenship.

In Mexico, Saldana was born to an American male and a Mexican female. His birth certificate listed both parents.  DHS deported him and denied his citizenship application on the basis that he was born out-of-wedlock.

According to DHS, Article 314 provided that children born out of wedlock can only be legitimized if the couple marries subsequently. At oral argument, however, the government admitted that Article 314 did never existed.  DHS then cited Article 130 alleging it required marriage for legitimacy of children.

The Fifth Circuit Court of Appeals held in their opinion disagreed. Article 130 merely cited that marriage was a civil contract, rather than a religious one.  In addition, the court noted that this article said nothing about the legitimization of children.  The court explained,

In sum, under the laws of Tamaulipas, Mexico, where Saldana was born and resided as a child, he was acknowledged by his father when his father placed his name on the birth certificate before the Civil Registry.  As an acknowledged child, Saldana had the same filial rights vis-a-vis his father as a “legitimated” child.

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Federal Agents Indicted in Immigration Scams

Seeking immigration or legal advice sometimes comes with the risk that the person you are talking to is committing fraud.

The most public cases of these frauds are known as “Notario Fraud” or “Immigration Consultants Fraud.”  Notarios or immigration consultants use false advertising and fraudulent contracts.  They hold themselves as qualified to help immigrants to obtain lawful status or perform other legal functions.  (You can read more about Fight Notario Fraud at the ABA).

Now, federal agents were indicted in an immigration fraud scheme led by a L.A. attorney.  The indictment alleges two conspiracies against the US involving bribery and fraud, seven counts of bribery, as well as making false statements and misuse of government seals.

The U.S. Attorney stated in a statement,

The conspiracy was allegedly orchestrated by a Los Angeles attorney who paid bribes as high as $10,000 to officials with several agencies in the Department of Homeland Security to help secure immigration benefits for aliens he was representing.

The indictment claims alleged that Kwan Man “John” Lee bribed public officials to get immigration benefits for clients who paid him, at times, more than $50,000.  Lee was charged in a previous criminal complaint and is not a defendant in the indictment.

via Courthouse News Service.

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Court orders legal representation for immigrants in deportation proceedings

I first came across this decision when I was listening to NPR.  In this case, which is a first of its kind, a federal judge ordered that states have to provide legal representation for immigrants with mental disabilities – when these immigrants are being detained and facing deportation.

This case is really surprising because immigrants generally do not have a right to an attorney.  The Supreme Court in Gideon v. Wainwright, 371 US 335 (1963), decided that the right to counsel is a fundamental right in criminal cases.  In INS v. Lopez-Mendoza, 468 US 1032 (1984), the Supreme Court reaffirmed that a deportation case is not a criminal case, but an administrative one.

Since deportation proceedings are not a criminal crime, there is no right to a lawyer.  The detainees not guaranteed counsel had presumably covered children, the mentally disabled, victims of sex trafficking, refugees, torture survivors and legal permanent residents.

Federal Judge Dolly M. Fee ordered immigration courts in three states to provide legal representation for immigrants with mental disabilities who are in detention and facing deportation, if they cannot represent themselves.  The immigrant in this case had severe mental retardation that prevented him from arguing for himself in court or even understanding his situation.

The NY Times reports that subsequently, “federal immigration officials issued a new policy that would expand the California ruling nationwide, making government-paid legal representation available to people with mental disabilities in courts in every state.”

Edited: To add other Supreme Court cases.

via Legal Aid Ordered for Mentally Disabled Immigrants – NYTimes.com.

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Non-Citizens and Deportation for Convicted Crimes

Moncrieffe v. Holder, 11-702 (2013) is an interesting Supreme Court decision.

The Immigration and Nationality Act (“INA”), 8 USC 1101, provides that a non-citizen who has been convicted of an aggravated felony may be deported from the US.  As way of background, ordinarily, a non-citizen when facing deportation, may ask for discretionary forms of relief and cancellation of the removal.  The exception is for aggravated felonies.

This case comes because among the crimes that are classified as aggravated felonies are illicit drug trafficking offenses.  The issue the Supreme Court addressed is whether this category includes state criminal statutes that extends to the social sharing of a small amount of marijuana.

In a 7-2 vote, the Supreme Court rejected the government’s position. The court explained that if a state crime of marijuana distribution does not closely match the federal crime of distribution, in a direct comparison of what each covers, it is not an “aggravated felony.”

In this case, the non-citizen came to the US legally in 1984.  In a traffic stop, the police found 1.3 grams of marijuana.  The non-citizen pled guilty to the charge of possession with the intent to distribute.  Under Georgia statute, this violation may be punishable up to 5 years.  Given this, the government alleged this was an aggravated felony.

The Supreme Court rejected this argument because it held the generically defined federal crime is “any federal punishable under the Controlled Substances Act.” 18 USC 924(c)(2).  “[N]ot just any offense ‘under the CSA’.”

The Supreme Court further explained,

This is the third time in seven years that we have considered whether the Government has properly characterized a low-level drug offense as ‘illicit trafficking in a controlled substance,’ and thus an ‘aggravated felony.’  Once again we hold that the Government’s approach defies ‘the commonsense conception’ of these terms….

Sharing a small amount of marijuana for no remuneration, let alone possession with intent to do so, ‘does not fit easily into the ‘every day understanding’ of ‘trafficking,” which ordinarily… means some sort of commercial dealing.’…

Nor is it sensible that a state statute that criminalizes conducted that the CSA treats as a misdemeanor should be designated an ‘aggravated felony.’  We hold that it may not be.

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Government settles lawsuit on warrantless home raids of immigrants

I came across this interesting settlement between the U.S. Government and nearly a dozen Latino immigrants.  The lawsuit alleged that immigration agents  committed widespread 4th Amendment violations when conducting home raids of immigrants.

One plaintiff alleged that ICE (Immigration and Customs Enforcement) agents pounded on doors before being allowed entry, swept through the homes, and terrorized the children.  The immigrants were U.S. citizens.  Another plaintiff alleged that when the home raids occurred she was 12-years old and that after busting in the ICE agents falsely told her “someone was dying upstairs.”

The District court approved of the stipulation and ordered the dismissal of the lawsuit.

Pursuant to the stipulation, the government will pay a $1 million settlement.  The settlement also provides that pending immigration proceedings will be terminated or delayed against eight (8) of the plaintiffs arrested during the raids.

Further, ICE will adopt policy changes for agents conducting warrantless home operations.  ICE agents must:

  • “seek consent to enter or search a private residence in a language understood by the resident whenever feasible;
  • they must have Spanish-speaking officers available to seek such consent when the target is from a Spanish-speaking country;
  • they must seek consent to to enter the outside areas of homes when there is a reasonable expectation of privacy, such as a backyard; and
  • they must not conduct protective sweeps through the homes without an articulable suspicion of danger.”

(bullet points added).

via Courthouse News Service.

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DHS must release records under FOIA

On Nov. 27, the federal District of Columbia ruled on DHS’s withholding of records under FOIA exemptions.  The American Immigration Council submitted a FOIA request to DHS.  In response, DHS released two pages.  The American Immigration Council then filed the lawsuit.

In its complaint, the American Immigration Council stated, “CBP officers have prevented attorneys from accompanying their clients during inspections, limited the scope of representation, refused to accept supporting documentation proffered by attorneys, and actively dissuaded noncitizens from hiring attorneys.”

The Court ruled that DHS must submit a new affidavit to demonstrate the adequacy of USCIS’ search, and must release 2/3 of the records withheld.

The Court stated,

“After sitting on a fairly standard Freedom of Information Act request by plaintiff American Immigration Council for almost a year, defendant U.S. Citizenship and Immigration Services (a component of the Department of Homeland Security, the other defendant) produced a response riddled with errors.”

“After in camera review, the court concludes that two-thirds of the withheld records contested by the Council should have been largely or wholly released.”

“FOIA cases count on agencies to do their jobs with reasonable diligence. USCIS must do better.”

via Courthouse News Service.

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ACLU Files Class-Action Lawsuit on Behalf of Detainees

The ACLU and its partners filed a class-action lawsuit on behalf of hundreds of immigrants in New Jersey subject to mandatory immigration detention. The lead plaintiff, Garfield Gayle, a 59-year-old green card holder from Jamaica, has lived in the United States for 30 years. Nearly eight months ago, when federal agents put him in handcuffs at his home, he learned that the government was trying to deport him based on an alleged attempted drug sale offense that happened more than 17 years ago.

“There is no reason to incarcerate people for months or even years on end when they have every incentive to show up in court, fight their cases, and win the right to stay in America with their loved ones,” said Michael Tan, lead attorney on the case.

Heres a link to the complaint.

According to the ACLU, “the case exemplifies many of the problems with widespread, costly and inhumane detentions around the country; there is of course great hope that some of this can change now that there is a lot of talk about immigration reform. Mr. Gayle, along with a record-breaking 429,000 immigrants in the U.S. in 2011, is being held in a detention center even though he has long roots and family in the U.S. and poses no threat.”

For additional information on the issue of immigrants in detention, click here.

via ImmigrationProf Blog: ACLU Files Class-Action Lawsuit on Behalf of Detainees.

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