Immigration, Legislation, and the Tension Between the Two

February 19, 2015

By: Edith Hinson

Since the beginning of November, when it was confirmed that President Obama was going to speak on the issue of immigration, pundits from both sides began speculating as to what he would say. After all – what could he say? The proposed immigration legislation had been stalled in the House for over a year by that time; and yet the need for that legislation was ever-increasing, as more and more migrant children were crossing into the U.S. on their own. The call for immigration reform was roaring, but the legislators were giving it a deaf ear. In an exercise of his executive power, the President decided to take the problem into his own hands and make swift decisions about how to prioritize enforcement of our current laws in a way that is realistic, progressive, fair, and legal.

cns

Photo courtesy of http://cnsnews.com/.

 

“Our immigration system is broken…” [1]

The President chose these words as his opening remarks, and the truth of the statement is blatantly obvious. No matter which side of the issue you fall on, the fact that the current set of laws are being neither followed by the people nor enforced by the agencies demonstrates that the current system is not effective. Whether it is because the people breaking the rules are not being punished or because the conditions of the immigrants’ home countries are getting so volatile, the result is the same. Non-citizens are here in America, and we can either ignore it, or deal with it.

“A bipartisan bill [passed] in the Senate, but…the House refused…to vote [on it.]”

Immigration reform was a key objective of Obama’s platform for election. Pursuant to his promise to make it a priority, he advocated for the DREAM Act [2], which would have granted a pathway to citizenship for certain young immigrants who are seeking education and self-improvement. After intense debate in the Senate, members of both parties came up with a draft they could all live with. Once the Senate passed it, they sent it over to the House of Representatives. Key leaders in the House have since stalled the bill, refusing to allow it to go to a vote. The President, facing intense opposition from the GOP-held House of Representatives, chose to take immediate action in an attempt to alleviate growing tensions across the board.

The Executive Order

With intense pressure from both sides of the aisle to do something about the immigration crisis, and with the refusal of Congress to act in such a way that allowed for progress, the President chose to announce new enforcement priorities rather than hold his breath until the House stopped bickering with each other.

Under Article II, Section I, of the United States Constitution, the President is not able to write laws per the executive order clause. Rather, he or she has the authority to review the framework of the current laws and announce to lower enforcement personnel how the law should be applied. Think about the states where marijuana has been legalized. The federal government could identify the purveyors and users of the illegal drug and arrest them, but they have made the executive decision that it is not currently a priority to do so. They would rather target big-time traffickers of heavy narcotics than non-violent marijuana smokers. This is simply an example of members of the executive branch exercising their constitutional right to enforce the laws within their own discretion. [3] Just like it’s not realistic to indict every pot-smoker, the President’s executive order on immigration recognizes it is similarly unrealistic to deport every immigrant. 

The Reason We Allow for Discretion

It all comes down to the bottom line: money. We simply don’t have the money, or the resources, to enforce every law on the books to the “T.” Therefore, the executive branch of the government must decide how to best enforce the laws we have with the resources that are available.

The President summed this up very succinctly in his speech on Nov. 20 when he said, “Let’s be honest—tracking down, rounding up, and deporting millions of people isn’t realistic.” We just simply don’t have the resources and personnel to do such a thing. But when our laws require something that we are literally not able to do, shouldn’t we amend them? This seems to be a logical answer, but that’s not always the case. Sometimes laws are so archaic, it is obvious that they shouldn’t be enforced; and when everyone agrees to not enforce them, it doesn’t necessarily make sense to spend time and money amending them. Additionally, sometimes the timeline of the legislative process is not keeping pace with the escalating need. The latter situation is what’s true here. Therefore, the President had to do something to give consistent direction to the enforcers of our laws on how to best do their jobs.

 The Plan

 The President laid out a clear plan to reform immigration by:

  • Enforcement personnel on the border will be allotted more resources.
  • High-skilled immigrants who demonstrate a clear benefit to our economy will have an easier time getting to the U.S. than those with fewer skills to offer.
  • Non-criminal immigrants with American children who have been in the U.S. for more than five years and are paying taxes will receive temporary stay from deportation.

What does this plan really mean? President Obama explained: “If you’re a criminal, you’ll be deported. If you plan to enter the U.S. illegally, your chances of getting caught and sent back just went up.” 

The Impact

What then is the message? To law enforcement personnel within the country, the message lets them know that they can spend their time and energy locating criminals and removing them from the country. This message also lets the border enforcement know that they are going to get more money to keep up the hard work. After all, since Obama has taken office, border crossings have been cut by more than half. With more resources headed their way, illegal crossings will be further stemmed. And with direction given to the internal enforcement personnel, criminals will be deported and the country will be safer.

It is important to recognize that nothing that President Obama announced on November 20 is written in stone. The relief from deportation that he gave to non-criminal immigrants is contingent on their staying out of trouble, expires in three years, does not lead to permanent residency or citizenship, and is revocable at the will of the executive who is elected into office next year. It is nothing more than an announcement of the priorities that law enforcement officers are to follow, as recommended by the top law enforcer in the nation.

In a way, calling the President’s announcement “reform” is a misnomer. In no way does it reform our system, but perhaps it will be instrumental in reforming our way of thought. Without identifying the problems, we are unable to draft a workable solution. Therefore, once the President’s enforcement priorities are put into practice and we are able to measure the positive and negative changes that transpire, we will be able to take a more educated and progressive step on immigration. Absent action by Congress, however, the piece-meal approach as effected by executives will be the best bet we have to modifying the system to meet our current needs.

[1] The full-text speech is available at http://heavy.com/news/2014/11/president-obama-immigration-reform-speech-full-text/.

[2] DREAM is an acronym for “Development, Relief and Education for Alien Minors.”

[3] U.S. Constitution, Art. II, Section I.


Public Education: A Right Entitled to All

January 19, 2015

By: Brandon Pierce

Today was the day: Kevin’s first day of school.  Ten years old, gifted, and sitting with his pencil in hand—Kevin was ready.  The teacher came before the class and gave the instructions for the first assignment:

Gawd muwrein!  I clike fund ans he book? If topher largetwen to climbegan.  What limse anders plast forh.”

One fact I forgot to mention is that Kevin didn’t speak English.  He didn’t even speak Spanish, or any other well-known language in the United States.  Kevin was from a small Guatemalan village where one of over fifty ancient Mayan languages was spoken.  But there he was, in his first American classroom, receiving his American education.

Kevin is one of the over 68,000 unaccompanied minors that have entered the United States illegally since October 2013.  In November 2014, the U.S. Department of Education issued a fact sheet that outlines the basics about the illegal, unaccompanied minors’ rights.  As detailed in the fact sheet, once these minors have been apprehended in the U.S., they are put in the Department of Health and Human Service’s (HHS) custody.  While in HHS custody, the children are sheltered in government centers where they receive educational services.  Most children, like Kevin, are released into the United States under the custody of a family member or legal guardian (known as a ‘sponsor’).  While in the guardian’s care, these children attend classes in public schools, often times without knowledge of the English language.  But who would allow such a thing?  The United States Supreme Court would!

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America: Home of the Educated

“Denial of an education is the analogue of denial of the right to vote: the former relegates the individual to second-class social status; the latter places him at a permanent political disadvantage.” – Justice Marshall (Plyler v. Doe)

In June 1982, the U.S. Supreme Court Justices held in Plyler v. Doe that no state should constitutionally deny any person a free public education on account of his immigration status.  Put simply, undocumented children have the same right to a public education as U.S. citizens.

This issue arose out of restrictive Texas education laws.  With regard to undocumented children, Texas education laws mandated that the state: (1) withhold funds otherwise meant for educating children who were not “legally admitted” into the United States and (2) deny enrollment to those children in Texas public schools.

What did it mean to be “legally admitted” in the United States?  Pursuant to state policy, a person was legally admitted if he: (1) presented documentation demonstrating he was legally present in the United States, or (2) federal immigration officials confirmed such documentation was in the process of being obtained.  Ultimately, a group of students from Mexico that did not satisfy the “legally admitted” criteria filed a lawsuit to challenge the Texas education laws.  The case eventually made its way to the U.S. Supreme Court.  There, Texas’s education laws were held unconstitutional.

The Court based its rationale on the Fourteenth Amendment to the U.S. Constitution.  More specifically, the Court referenced a provision referred to as the “Equal Protection Clause.”  That clause states, “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”  Therefore, unaccompanied children in the United States are entitled to public education.

New York State of Mind

Give me your tired, your poor, your huddled masses yearning to breathe free…”                          – Emma Lazarus

Let us consider New York City (NYC): the proverbial gateway into America’s land of opportunity.  For the 2014-15 academic school year, NYC public schools have enrolled over 2,000 unaccompanied minors.  Like Kevin, many of these children have never had one English language course.  To combat this dilemma, NYC schools have implemented the English Language Learners (ELLs) program.  ELLs is a bilingual program that promotes the social and academic development of students who have recently arrived to the U.S. without proficient English skills.  Devora Kaye, NYC’s Department of Education spokeswoman, endorses such progressive actions, reaffirming the Court’s decision in Plyler v. Doe.  She asserts the department’s belief that “every child has a right to a great education, and we are committed to providing children who have escaped violence with the academic foundation and access to services that they need to establish a path to long-term achievement.”

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By contrast, not all of New York’s actions have shown a general consensus toward the notion of “education for all.”  New York Civil Liberties Union (NYCLU) reviewed approximately 20 percent of the state’s school districts.  Within those districts, the NYCLU discovered that the majority has assembled arduous barriers for undocumented students, thus, potentially preventing their enrollment.  Consider this: seventy-three New York school districts require birth certificates for enrollment.  (Nineteen of those districts require the “original” birth certificate.)  In response, the NYCLU urged state education officials to formulate a model universal enrollment form and list of permissible evidentiary documents.  This is meant to develop uniformity within the state’s education system.

What Does This Mean for Other Children like Kevin?

Analysts are certain that more unaccompanied children are coming, but what is unclear is how they will be welcomed.  This dilemma must be met with an unwavering commitment to U.S. values and standards.  Equality and justice have long been the staple of America’s uniqueness.  If we deny those considerations to all mankind, then we have given up our uniqueness in the world.  In sports language, we have forfeited.  In war language, we have surrendered.  In scientific language, we have become neutral.  In short, we have compromised our national value.  Let us reclaim our true selves through equality and justice because education is a right entitled to all!


A Group of Law Students’ First Asylum Case

January 16, 2015

By: Andres Salazar, Elham Rabiei, Maria Minis, and Tareva Marshall, Immigration Clinic Members

As law students, we all hear the same lecture from our professors: “Law school is not like the legal practice.”  One way to better understand the demands of legal practice is to participate in a legal clinic.  A legal clinic is an organization in a law school that specializes in a specific area of law and provides clients legal help on a pro bono basis.  A law school often has multiple legal clinics to provide pro bono representation in a variety of areas.  Law students apply to work in a legal clinic associated with their school, and work as the primary representatives of the clinic’s clients under the supervision of a professor.  We participated in the Charlotte School of Law Immigration Clinic.

During the Clinic, we were privileged to represent a family from Honduras who was applying for asylum in the United States.  Asylum is a case where the immigrant is asking the United States via the Immigration Court or the United States Customs and Immigration Service (“USCIS”) to allow him or her to stay in the country for humanitarian reasons.  The humanitarian reason is almost always that the immigrant is not safe in his or her home country because of some form of persecution.  Also, there must be no other safer alternative for the immigrant but to reside in the United States.

In our clients’ cases, they faced a threat of persecution, violence, and possibly death, because of their familial relationship to a witness who testified against a well-known gang member in Honduras.  This family member’s testimony was important in the case against the gang member, who was responsible for the deaths of three of our client’s relatives while they were in Honduras.  Our clients fled the country due to the fear that the gang would retaliate against the entire family for the one member’s testimony.

The family was referred to the Immigration Clinic by an immigrant’s rights group in North Carolina.  We split the case into two separate trials which were tried by two different Immigration Clinic student teams in front of the Charlotte Immigration Court.  The cases were split due to the different processing times of all the family member’s cases in the Immigration Court System, so that the entire family could obtain adequate representation by our clinic.  Ms. Elham Rabiei and Ms. Maria Minis tried the first case in April of 2014, while Mr. Andres Salazar and Ms. Tareva Marshall tried the second case in September of 2014.  We won both trials, and our clients were granted asylum.  Our clients’ trials were successful because of our hard work and because of the guidance from our supervising professor, Professor Fernando Nuñez.

About Asylum

When one hears the word “asylum” in the immigration context, it usually means political asylum, where an immigrant is persecuted by his or her own government due to the immigrant’s political beliefs.  However, there are other grounds for asylum, including persecution based on religion, race, nationality, or membership in a particular social group.  The legal definitions of persecution due to political beliefs, religion, race, and nationality are fairly set in law, so either the immigrant clearly meets the criteria or not.  The last category, membership in a particular social group, is constantly being re-defined by circuit courts and the Board of Immigration Appeals (“BIA”).  A particular social group can be almost anything.  It can be psychiatric patients in a mental hospital, people who identify as LGBTQ, family members of a witness who defies a gang member by testifying against the gang, and so forth.  The key point to the definition of a particular social group is that the membership has a defining trait that cannot, or should not, be changed.  If an immigrant chooses to use membership in a particular social group as the basis for his or her asylum claim, then the immigrant must demonstrate that he or she meets the definition of a member of a particular social group by providing credible testimony, documentary evidence, or both.

Relevance of Asylum Law

Asylum law is vital because it provides humanitarian relief for immigrants who are persecuted in their home countries.  For some immigrants, including the Immigration Clinic’s clients, the decision of a judge granting asylum is a matter of life or death.  United States immigration laws give the immigrant an opportunity to apply for, and prove, that asylum is necessary in his or her case.  It also reaffirms that our nation is a nation of immigrants, and that we as a country are still proud of our heritage by continuing the tradition of accepting immigrants in need.

In 2013 alone, the Executive Office for Immigration Review, which oversees the immigration courts, reported that 36,674 applications for asylum were filed in immigration courts around the country.[1]  Of these, 9,933 applications for asylum were granted, while 8,823 applications were denied, 1,439 were abandoned by the applicants, 6,400 were withdrawn, and 11,391 did not receive a decision for other reasons.[2]  These numbers do not include the many asylum applications that are filed before and decided by USCIS.  As evidenced by the statistics, even considering a broad definition of asylum, it is difficult to obtain.

However, asylum is still sought by many immigrants in spite of the difficulty because it provides them a protective status as an asylee within the United States.  This protective status ensures that once the immigrant obtains asylum, the immigrant will not be deported to his or her native country so long as the danger to the immigrant’s life exists in his or her native country.  It also allows for the immigrant to obtain a work permit so that the immigrant may start to rebuild his or her life here in the United States.  After residing as an asylee for a certain period of time, the immigrant may apply for lawful permanent residence—otherwise known as a green card—to reside in the United States indefinitely.

An asylum case is different than typical litigation in that the case moves relatively quickly.  One reason for this is that the asylum applicant must file for asylum within one year of arriving in the United States, as compared to other types of cases like personal injury cases, where the Statute of Limitations provides a three year deadline from the date of an accident to file suit.  Because of how Border Patrol and later the Immigration Court System processed the cases, each individual family member was in a slightly different stage of processing, which motivated our decision to split the cases up.  For example, we grouped a young couple and their son together since they had already completed the initial processing stage in January of 2014, while we grouped another woman, her adult son, her niece, and the niece’s two children together because some of them were still being processed by the Immigration Court System and Border Patrol at that same time. This gave the two teams slightly different timelines for preparing for trial.  The first team filed for asylum in January of 2014, and tried the case in April of 2014, with written closing statements submitted in May of 2014.  The second team filed for asylum in the beginning of April of 2014, and tried the case in September of 2014.

This fast-paced timeline demonstrates how an asylum case can be a very challenging experience, especially as a law student with class obligations outside of the clinic.  As with all litigation, we had to meet with our clients on a regular basis not only to prepare their case, but to also prepare them so that they would be ready to answer questions in the courtroom setting.  This preparation included numerous visits, sometimes multiple times in a week, to the clients over spring break, over summer vacation, and during the academic semester.  The first team had about three months to prepare its clients for court, write a forty page brief, and organize about four hundred pages of supporting evidentiary documents.  These evidentiary documents included details about the clients’ persecution as well as the country conditions of Honduras and declarations from witnesses detailing the persecution our clients suffered.  The second team had about five months to prepare its clients’ case, but there was an additional challenge: the government attorney facing them at trial was much better prepared due to all of the evidence provided in the first trial.  Both trials were challenging because of the time constraints, and we all were stressed due to managing the cases along with our full-time course load.

Rewards of Practice

In spite of the challenges and stress, the trials were one of the most rewarding experiences of our lives.  From developing a case theory to figuring out how to file proofs of service, these valuable legal skills taught us the mechanics of the Charlotte Immigration Court.  The clinic also taught us invaluable communication skills, including how to connect with, and interview, the client to find all the relevant facts of the case.

Additionally, the experience allowed us to forge friendships within the Immigration Clinic that will continue long after we graduate and enter the legal workforce.  We worked on the same family’s case, so we worked together closely for the entire semester.  We learned a lot about effective teamwork, and we became each other’s moral support when we felt overwhelmed by the pressure of the case and school.

The most important experience that we got out of working on this case was the knowledge that we were helping another human being.  This case got us out of the law school bubble and into what real life is like for lawyers and clients.  Hearing the stories that our clients told us, especially regarding their case, made an entire semester’s worth of immigration law much more meaningful to us.

In law school, you read the facts of a case that will be relevant to the class.  In the end, those facts are still just facts on paper.  There is no personal connection to the case, so it is difficult to relate to the parties who are arguing their case.  In the clinic, when you are working with real clients, those facts are no longer facts on paper, but words coming out of a real person’s mouth about their very real problem.  Suddenly, it becomes personal to you.  You are your client’s voice, and you must navigate the law to achieve the best result for your client.  Due to this personal connection to the case, now you can imagine how the law could help or harm your client, and how the fine details of a governing case that seemed so irrelevant in class could be the key to winning or losing. There is truly no substitute for working in a clinic—not only is it an opportunity to practice as a student attorney working on real cases, but it also helps those who need it the most.

We would highly recommend participating in a clinic while attending law school.  While it will require hard work, and some struggling to balance clinic work with homework, the rewards of learning to practice like a lawyer and help people at the same time will be more than worth it.

[1] http://www.justice.gov/eoir/efoia/FY2009-FY2013AsylumStatisticsbyNationality.pdf.

[2] Id.


Charlotte School of Law to Host Immigration Discussion

March 5, 2012

The Charlotte School of Law is proud to present Attorney Juan P. Osuna, Director of the Executive Office for Immigration Review and the chief administrator of the immigration court system. Attorney Osuna will discuss the structure and responsibilities of the trial and appellate immigration tribunals. He will also address the emerging constitutional challenges from recent legislative attempts at immigration reform. Attorney Osuna will be joined by an esteemed panel of legal practitioners, elected officials, and immigration specialists.

The discussion will take place on March 8, 2012 from 5:00 – 8:00 PM in the Community Learning Center. Take a look at the official flyer. Come by to support the school, earn PEP II credit, and learn more about this important and controversial issue.


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