Archive for the 'Immigration' CategoryPage 2 of 13

Social Media Checks Become a Part of Tougher Visa Vetting

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.

What are Some Concerns We Need to be Aware Of?

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’s Our Takeaway from This?

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.

Trump Quickly Backs Off on Offer of Protection to DREAMERs

Since well before he was elected, President Trump has left no questions about his positions on immigration. With this in mind, an announcement out of the Department of Homeland Security last week–stating that “the memorandum that created the Deferred Action for Childhood Arrivals (DACA) program will remain in effect”–came as more than a bit of a shock.

The DACA refers to a 2012 policy directive out of the Obama administration. The directive essentially offered a watered down version of the Development, Relief, and Education for Alien Minors Act, better known as the DREAM Act, to those who would have qualified under the act had it been passed when it was introduced back in 2001. The policy provided a new avenue for those who would have qualified under the DREAM Act to apply for citizenship to instead apply for a stay on deportation and a potential work visa. Those who applied under the policy are called DREAMERs due to the similarities between the DACA and the DREAM Act. As of today, well over 700,000 people have benefitted from the DACA.

However, with the Trump administration taking over all those people had to once again fear that they would be targeted for deportation. To make things worse, there was a strong potential that the very information they had provided to potentially receive aid under the DACA would be used against them in deportation proceedings. Thus, this recent announcement was such cause for celebration that many were left in disbelief considering the approach the Trump administration had taken to immigration so far.

TrumpWhen comes to those who might apply for the benefits of the DACA, uncertainty is almost worse than outright denial. This sort of waffling leaves DREAMERs in a perilous position. Do you apply for the benefits of the DACA, even knowing that the very information you use to apply may be used against you. Or do you simply continue on in the extremely stressful and risky situation of living life as an illegal immigrant.

Let’s take a look at exactly how the DACA–if its protections still exist–works as well as the information that is required to apply for the protections of the DACA

How Does the DACA Work?

In order to receive the benefits of the DACA, the applicant must fulfill a laundry list of requirements:

  • (1) They must be under 36 years old (as of today);
  • (2) they must have been under 16 years old when they came to this country,
  • (3) they must have lived in the U.S. non-stop from June 15, 2007 to today;
  • (4) they must have entered the country illegally or had their legal status expire before June 15, 2012;
  • (5) they can’t have been convicted of a felony, a significant misdemeanor (domestic violence, sexual abuse, burglary, and the like), any three misdemeanors;
  • (6) have graduated from high school, be in school, received a GED, or have been honorably discharged from the U.S. Armed Forces; and
  • (7) not be considered a threat U.S. national security.

This is obviously a pretty hefty list just to qualify but it covers an enormous number of people and offers a huge change in lifestyle for those people in terms of both personal security and securing work. However, proving this list requires somebody to provide an enormous amount of information about themselves as evidence. Proof of identity, where you went to school, where you live, when and how you got here, etc. So complicated is compiling the necessary evidence that it generally requires hiring a lawyer to make sure you got it all. The prospect of going through all the time and expense of making a DACA application, only to have that stack evidence turned against you is not only a stressful proposition for DREAMERs, it also outright undermines any attempt by the government to reach out to people here illegally.

Uncertainty Under the Law Leaves DREAMERs With a Lose-Lose

Mr. Hoffman describes the desire of the Trump administration to treat DREAMERs with “compassion.” They certainly deserve compassion, many DREAMERs did not even know they entered the country illegally. Often they have attended schools in the U.S. all their life and have no ties whatsoever to anything outside this country.

However, flip flopping on the DACA like this is the opposite of compassion. Under Trump’s own executive orders, privacy protections have been stripped away from illegal immigrants. Immigration and Customs Enforcement agents need only ask to receive the information provided under the DACA and use it to arrest and deport would-be DREAMERs.

This leaves these people in a situation where they are damned if they do and damned if they don’t. Why would somebody in such a situation ever trust the government’s offer of amnesty if it can be so easily turned around on them. Would you? Allowing illegal immigrants to transition to legal status allows for taxation, safety, and more. We need these sort of programs to achieve this. However, when they are undercut as thoroughly as they have been by the Trump administration, it’s hard to see them gaining much traction in the future short of an actual act of Congress.

ICE Faces Criticism for “Sensitive Locations Policy”

Out in New Jersey, the Chief Justice of the New Jersey Supreme Court Stuart Rabner has come out hard against the exception in the Immigration and Custom Enforcement (ICE) Sensitive Locations Policy. In a letter asking for an end to the practice, the high ranking judge criticizes ICE’s practice of waiting in courthouses for undocumented immigrants who are victims of a crime, defendants in a case, or simply there to testify in proceedings. He argues that the practice not only denies access to the courts to people who are undocumented by making them fear arrest and deportation, it also torpedoes the legal process by guaranteeing a lack of cooperation in ongoing cases where somebody might get grabbed by ICE on the way out of testifying against a criminal.

He’s not criticizing the practice for no reason. Just in the last couple months ICE agents have arrested several undocumented immigrants in courthouses. Just recently they have arrested a woman  seeking a protection order  to keep her safe from an abusive spouse. Another man was arrested as he left a proceeding, otherwise free to go after a civil case.

ICE agents have responded to Rabner with a resounding no. As written, the Sensitive Locations Policy places no restrictions on arrests made at courthouses. Even if it did, the actual protections of the policy are far from absolute even where they do apply.

ICEICE’s Sensitive Locations Policy

The Sensitive Locations Policy is very much what it sounds like-a policy of ICE limiting enforcement actions at sensitive locations. These locations include schools (either at the school or when a parent is picking up or dropping off a child), medical treatment facilities, places of worship, ceremonies like weddings and funerals, or during public demonstrations such as a march or rally for a cause. You’ll notice courthouses are nowhere on that list.

Courthouses not only don’t make the cut in this policy as written, they are explicitly not included. Even if they were, the policy isn’t a blanket ban on arrests in sensitive locations but rather more of a strong suggestion. First, it only limits enforcement actions. This includes actual apprehensions, arrests, searches, or surveillance. However, it doesn’t include them entering a sensitive location to get records or documents to later use against undocumented immigrants, serving subpoenas or notice of proceedings, and other more administrative actions.

Although it suggests that arrests at sensitive locations be avoided, the policy doesn’t stop ICE from making arrests.  Agents just need permission from a supervisor before proceeding. Even without permission, they can make an arrest-so long as they do so as discreetly as possible-where there are circumstances related to national security, terrorism,  public safety, or destruction of evidence.

The policy is in place to ensure that everybody is free to utilize crucial services without fear of repercussion. Education, health care, worship-all incredibly important. Doesn’t it seem odd that legal services aren’t on that list? Don’t we want everybody to enjoy the protections of the law and help others when they witness crimes? The protection of our laws-both for undocumented immigrants and citizens whose cases they might testify in-are a similarly crucial service to education of health care. However, the sad truth is that even were courthouses included in the policy the protections might still not be enough.

Sensitive Locations Policy Not as Strong a Protection as it Was

To say that the attitude towards immigration has changed after the Obama administration passed the torch to President Trump. Besides Trump’s failed immigration ban orders, he has also issued an executive order which drastically changes the approach of ICE agents.

Under the Obama administration, ICE agents were told to prioritize targeting gang members and violent criminals for deportation. For the most part, they were not going after anybody else. Trump’s order substantially expands those ICE is meant to target. Under Trump the agency is to target, in no particular order, undocumented immigrants who “have been convicted of any criminal offense; have been charged with any criminal offense, where such charge has not been resolved; have committed acts that constitute a chargeable criminal offense; have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; have abused any program related to receipt of public benefits; are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.” If that sounds extremely broad, that’s because it is. Gone are the days of prioritization, every illegal immigrant is equally targeted.

What Trump’s order notably does not do is change the Sensitive Locations Policy, he has given ICE agents much wider leeway in how they act. This has led to much less strict consideration of the policy than in previous years. Just in the last few months ICE agents have raided a pre-school in San Francisco (apparently mistakenly), arrested a California man right after he dropped off his daughter at school and while he drove his other daughter to her classes. In Virginia, two men were arrested as they left the homeless shelter offered by their church.

Judge Rabner has a good point, access to the courts is crucial for our justice system to operate properly. However, as it stands it looks like the protection the Sensitive Location Policy would offer to undocumented immigrants seeking the protection of the law would be middling at best.

Trump Pushes Travel Ban Towards U.S. Supreme Court

The Trump Administration recently filed a petition to the United States Supreme Court requesting it hear its appeal of a decision by the United States Court of Appeals for the Fourth Circuit regarding Trump’s controversial travel ban. The Fourth Circuit Court upheld a lower court’s decision in Maryland which blocked implementation of the travel ban. Another lower court in Hawaii also blocked implementation of the travel ban. Trump signed the travel ban into effect via executive order earlier this year. The Ninth Circuit Court heard oral arguments from the government requesting reversal of the Hawaii court’s decision, but a decision on that appeal has yet to be issued. In addition to the petition to the Supreme Court to review the Fourth Circuit Court’s decision on the merits, the Trump Administration has asked the Supreme Court to grant stays of the lower court rulings in both Maryland and Hawaii. The Supreme Court generally makes a decision on stays quickly, and if it does in this case, the travel ban will be reinstated while the nation, and world, wait to hear its decision regarding the Fourth Circuit.

TrumpThe Arguments For and Against the Travel Ban

Trump’s travel ban targets individuals from six predominantly Muslim countries, temporarily preventing them from entering the United States for a period of 90 days. According to the Trump Administration, the purpose of the ban is to keep the country safe from terrorism until proper vetting procedures are put into place. In its petition to the Supreme Court, the Administration argues the President has broad power pursuant to the Constitution and Acts of Congress to stop outside individuals from entering the United States when he deems it a necessary security measure, particularly when the countries involved “sponsor or shelter” terrorist activity.

But challengers to the travel ban say it violates the First Amendment, which prohibits the government from interfering with the free exercise of religion. They further argue the travel ban is a clear abuse of the President’s power, resulting from his hostile views toward Muslims as demonstrated during his presidential campaign.

Supporters of Trump and his travel ban may be looking to the President’s Supreme Court nominee Neil Gorsuch for its reinstatement, but it is difficult to say where the newly appointed justice stands on the issue. In his confirmation hearings earlier this year, Associate Justice Gorsuch emphasized the importance of protecting freedom of religion, as guaranteed under the Constitution. During his testimony, he went on to state the Supreme Court has held that due process rights extend to undocumented individuals in the United States, and he would apply the law.

The Issues That Are Now Before the Supreme Court

A key legal question in this case is the constitutionality of Trump’s executive order implementing the travel ban, and whether he has exceeded the scope of his presidential authority by barring entry of aliens into the United States. In addition to its argument that the President has broad authority to suspend or restrict entry when he deems it in the nation’s interest, the Trump Administration asserts in its petition that the Supreme Court has never nullified religion-neutral government action based on mere speculation about an official’s ill-disposed motivations, particularly when such speculation is based on statements made by the official during a political campaign. The Administration requests the Supreme Court grant its petition for review of the Fourth Circuit Court’s decision before its summer recess begins end of June, which would allow both sides to prepare for oral argument when the Supreme Court’s new term begins in the fall. The Supreme Court has asked the challengers to the travel ban to respond to the petition by June 12.

All eyes will be on the Supreme Court as it decides fairly soon what to do with the government’s urgent requests, decisions that will be highly impactful in the months to come. It will take five votes from the Supreme Court justices to stay the two lower court decisions blocking the travel ban, and four votes for the petition for review of the Fourth Circuit Court’s decision to be granted. The Supreme Court’s ruling on the stay requests is expected soon; if granted, it will immediately reinstate the travel ban. This poses a potential problem for challengers to the travel ban, which imposes a 90-day restriction on individuals trying to enter the United States. If the Supreme Court grants review of the Fourth Circuit Court’s decision, and it is expected it will (in light of the constitutional issues at stake regarding the scope of a president’s power), the travel ban would no longer be in effect by the new Supreme Court term in the fall, making the case moot at that point.

It’s Official: Texas Voter ID Law Violates the Voting Rights Act

On Monday April 17th,  a Federal Judge ruled that the voter ID laws enacted in Texas were enacted with not only the intent to discriminate against minorities but with the purpose of discriminating against those minorities.  This is a huge ruling with implications for both the law, S.B. 14, and the state of Texas as a whole.  This ruling has the potential to leave any law related to voting coming out of Texas subject to federal approval in the future.

However, this ruling is far from out of the blue.  The story of S.B 14 has been a back and forth saga through the courts since 2011.  Let’s take a look at the history of this bill, this most recent ruling, and what that ruling means.

Texas Voter IDThe History of S.B. 14

S.B. 14 is a law which substantially limits the acceptable types of voter IDs in Texas, often in particularly odd ways.  For instance, a hunting license is acceptable ID to vote but a student ID would not.  This is just the tip of the iceberg to what represented an enormous amount of limitations on what was acceptable identification to allow somebody to vote.  While there were suggestions to make funds available to educate the public on the details of the new restrictions and assist poorer voters to obtain sufficient identification, these suggestions were shot down at every turn and nothing of the sort made it into the final law.

When this law was initially passed in Texas in 2011, the Voting Rights Act (VRA) gave the Attorney General (AG) the power to review and shut down voting laws coming out states which had historically had discriminatory voting practices–think Jim Crow and the South.  With the effect the limitations would have and the lack of education on these effects in mind, the Attorney General at the time-Eric Holder-exercised this power and shut down the law.  While challenged this in the courts, AG Holder’s decision was upheld.

However, in 2013, a Supreme court ruling known as Shelby substantially limited the powers of the VRA.  Section 5 of the VRA allowed the federal government to pre-clear any voting laws coming out of states that previously had issues, as discussed above.  In Shelby, the Supreme Court analyzed the constitutionality of the VRA and Section 5 in particular.  They ultimately determined that, while Section 5 itself was constitutional, Section 4 was not.  Section 4 was the part of the VRA that allowed enforcement of Section 5.  Without this section, the pre-clearance requirements of the VRA were rendered essentially toothless.  The reasoning behind the Supreme Court’s decision was that justifications for the VRA’s restrictions-the history of discriminatory voting practices-was not the same concern it was when the VRA was enacted in the 60s.  Whether this is true or not, the Supreme Court decided that the provisions of the VRA needed to be reviewed by Congress if they were to remain in effect.

In the wake of this decision, many states-Texas, Mississippi, North and South Carolina-passed voting laws which had previously been shut down as potentially discriminatory by the federal government.  Among these was S.B. 14.  However, the law was immediately challenged in court.  In 2014, the law was determined to have discriminatory intent and purpose and struck down.  It was then appealed to the 5th Circuit Court of Appeals, which upheld the ruling in part, but asked the lower court to revisit the matter of discriminatory intent.

This brings us to ruling of last week.  However, as opposed to the initial ruling, there was one huge difference–AG Jeff Sessions.  Jeff Sessions has made it clear that the potential for discriminatory voting laws is not a priority under his watch, and told his attorneys at the Department of Justice to drop this case altogether.  Despite this, and a request from the DoJ plaintiffs to drop the case, Judge Ramos-the judge handling this case-looked to the facts already submitted in coming to a resounding yes on the discriminatory intent and purpose behind S.B. 14.

Discriminatory Intent and Discriminatory Purpose

Discriminatory intent is shown where racial discrimination is a-although not necessarily the only-motivation behind a governing body’s decision.  Discriminatory purpose goes a little further than intent, implying that the law was enacted because of the adverse effects on an identifiable group.  A law demonstrating discriminatory purpose or effect is unconstitutional. A discriminatory impact is not enough on its own for a law to be unconstitutional on its face, there needs to be at least a partial discriminatory motive.

Judge Ramos found such an intent and purpose behind S.B. 14.  In determining to this, she looked to a number of things.  She noted not only the disproportionate impact that the carefully chosen ID limitations had on minorities, she also pointed to racist remarks made by legislators during deliberations on the law, the bypassing of usual procedures in passing the law, and the outright refusal to include anything which would help the public understand the laws.  Additionally, any amendment proposed to make the provisions less harsh–easing registration procedures, reducing costs to purchase the IDs necessary to vote, expanding the acceptable types of identification-were all rejected with essentially no consideration.  In fact, the Texas Congress was specifically advised of the disproportionate impact that the law would have and advised on a number of ways to lessen this disproportionate impact on minorities-they rejected all of them.

The stated goal of the bill was to avoid voter fraud.  However, despite the Texas Legislature being shown evidence that in person voting happened in about two out of every twenty million cases in the last decade and provided evidence that mail-in voting was much more commonly vulnerable to fraud, the Legislature didn’t feel the need to include any provisions on mail-in voting and focused exclusively on in-person voting.

With all this in mind, Judge Ramos ruled that she could find no non-discriminatory purpose for how Texas had approached S.B. 14.

What Will This Ultimately Mean

Unfortunately, despite years of rulings saying this law was intended to prevent minority voters from being represented at the polls, there’s a good chance this law will win out in the end.  Jeff Sessions has, as Attorney General, told the attorneys of the DoJ to cease litigating the case completely.  While Judge Ramos followed through with the case, Texas will certainly appeal her decision.  This appeal will probably have no lawyers opposing Texas, unless an outside group steps in to handle the litigation.  If this is the case, the chances of beating this law drop precipitously.  However, should somebody step in to help fight the law this is a case that has a good chance to make its way to the Supreme Court.  As it stands, even with the addition of Justice Gorsuch, the makeup of the court makes it likely that this law would be struck down and Texas would continue to require preclearance from the federal government for any new law effecting voters.

This hasn’t been a particularly good year for Texas when it comes to their voting process being ruled racially discriminatory.  Two separate courts have already ruled, this year alone, that Texas’ district maps are gerrymandered to “pack and dilute” minority votes.  The determination of Shelby limited the VRA on the premise that discriminatory voting practices were a thing of past generations.  However, this ruling and many other rulings this year have shown the opposite.  It is unlikely that congress, in its current state, will pass any legislation giving teeth back to the VRA.  However, as cases like this are appealed to the Supreme Court, they have the potential to create precedent for a future court ruling reevaluating Shelby.  However, it seems unlikely in the near the future.  Only time will tell how momentous this ruling may be, for now Judge Ramos’ ruling will serve to protect voting rights for minorities in Texas.