Immigration In the News

Transcription

1 Immigration In the News Lesson Plan Ronald P. Mondello, Esq. Immigration and Criminal Attorney th Street Fair Lawn, N.J (201)

2 In the News Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States On November 9, 2018, the Departments of Homeland Security (DHS) and Justice (DOJ) published a fast-track rule (83 Fed. Reg ) that, in combination with a proclamation signed by President Trump the same day, prohibits from seeking asylum individuals who enter the United States from Mexico between ports of entry. Together, this rule and proclamation are commonly referred to as the asylum ban. The ban relies in significant part on the president s limited authority to restrict immigration under Sections 212(f) and 215(a) of the Immigration and Nationality Act (INA) The same legal authorities invoked for the Muslim ban, which restricts the entry into the United States of certain noncitizens from designated, mostly Muslim-majority, countries The asylum ban does not affect individuals ability to apply for humanitarian relief in the form of withholding of removal or protection under the Convention Against Torture (CAT) As written, the asylum ban remains effective for 90 days until January 8, 2019 or until the establishment of a so-called safe third country agreement with Mexico, whichever occurs earlier By the 90th day, the Secretaries of Homeland Security and State, along with the Attorney General, must recommend to the president whether to extend the ban. On November 19, the U.S. District Court in San Francisco blocked implementation of the ban by issuing a temporary restraining order effective until December 19 Not every person arriving at the southern border is eligible under U.S. law to receive asylum or other legal protection allowing them to remain But U.S. asylum law (INA Section 208(a)(1)) does guarantee each individual the right to apply for such relief and to obtain a meaningful and thorough review of his or her case

3 In the News Key Takeaways from the Temporary Injunction Halting Implementation of the Asylum Ban The asylum ban would allow only people who cross at legal checkpoints on the southern border to request asylum, while those entering elsewhere would be able to seek different forms of protection that are harder to win and offer fewer benefits. Judge Tigar said the president could not change asylum law by executive fiat. "Whatever the scope of the President's authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden," he wrote. Judge Tigar reasoned that the "failure to comply with entry requirements such as arriving at a designated port of entry should bear little, if any, weight in the asylum process." The judge determined that the changes proclaimed and ordered by the Trump administration would amount to a transformation of long-established asylum procedures, codified both at the international level and by Congress. As the government sought to show that the ban was necessary and lawful, the judge seemed skeptical, observing that border apprehensions are near historic lows and that, regardless, federal law says all people on or arriving to U.S. soil can apply for asylum, no matter their manner of arrival or entry. Judge Tigar voiced concern for the fate of asylum seekers under the changes. The administration's rule, he observed, would force individuals "to choose between violence at the border, violence at home, or giving up a pathway to refugee status." Judge Tigar wrote that the government's argument that the manner of entry can be the lone factor rendering a migrant ineligible for asylum "strains credulity." Judge Tigar reasoned that the "interpretive guide" of the U.N. Refugee Convention lent extra force to congressional requirements. The intent of Congress, Tigar wrote, was "unambiguous." Judge Tigar stated "And if what Defendants intend to say is that the President by proclamation can override Congress's clearly expressed legislative intent, simply because a statute conflicts with the President's policy goals, the Court rejects that argument also."

4 In the News Border Concerns What is now going on at the border? Zero tolerance will not be applied to persons traveling with children. Instead, all coming will be expediently removed. If they claim fear, they will be detained by DHS-CBP until (1) it is determined that if more than one parent/adult is traveling with a family unit, at least one of the adults will be released on their own recognize along with the children. Any remaining parent/adult may still be detained. At DHS-CBP's discretion that remaining adult may be bonded out or ROR'd too. However, since the private detention centers need to fill beds to make money, the likelihood is that the remaining adult will be detained. Even after passing a credible fear interview while in detention, the person will probably remain detained; or (2) If neither parent/adult is eligible for ROR with the kids, then the kids will be processed by the Office of Refugee Resettlement (ORR) for safekeeping or making contact with a potential caregiver (extended family member, etc.). What can I tell my clients about their families at the border? The following site may be helpful: How can I help my clients help their families? If you know of persons traveling with kids, perhaps be accessible, available and willing, so that the ORR can release the kids to your client's care, if the parent/adult is not eligible for bond or ROR. How can I make contact on behalf of my clients who have loved ones at the border? The aforementioned site may be helpful: Is there a way I can expedite the process for them? - Other than the noted website above, I doubt there is much more that can be done.

5 Executive Order of June 20, 2018 Zero Tolerance for illegal entry remains but NOT if you are traveling with children Temporary Detention Policy for Families Entering this Country Illegally Keep families together during the criminal improper entry or immigration proceedings Use existing facilities for housing and care of alien families Construct new facilities if needed All Heads of executive departments shall make available any facilities that are appropriate for such use Prioritization of Immigration Proceedings Involving Alien Families In the News Birthright Citizenship: What it is President Trump suggests that the U.S. should End Birthright Citizenship He is not the first nor the last to suggest changing the Constitution as a way to reform our immigration system Volumes have been written in defense of birthright citizenship, yet it is regularly attacked by anti-immigrant politicians. In 2010, when the Arizona legislators behind SB1070 went after birthright citizenship, Michele Waslin, Ph.D. explained the background and ramifications of changing it: Birthright citizenship, or the principle of jus soli, means that any person born within the territory of the U.S is a citizen, regardless of the citizenship of one s parents. This principle was established well before the U.S. Constitution, and was enshrined in the Fourteenth Amendment. It was necessary to include the citizenship clause in the Fourteenth Amendment because the Supreme Court s Dred Scott decision of 1857 had denied citizenship to the children of slaves. Following the Civil War, the Fourteenth Amendment righted that injustice and became the foundation for civil rights law, equal protection, and due process in the United States. Waslin also explained the ramifications of altering it:

6 Far from affecting only illegal immigrants, birthright citizenship impacts everyone. If simply being born in the U.S. and having a U.S. birth certificate were not proof of citizenship, Americans would have to navigate complex laws to prove their citizenship. Other than a birth certificate, most Americans do not have government documents that establish U.S. citizenship. In 2015, when the House Judiciary Committee held a hearing to attack birthright citizenship, Mark Noferi, Esq. wrote that repeal would not be upheld by the Supreme Court and attacks are based on faulty reasoning: he is not the first nor the last to suggest changing the Constitution as a way to reform our immigration system it is doubtful that legislation to repeal birthright citizenship would be constitutional. The Fourteenth Amendment to the U.S. Constitution states 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. Based on this, the Supreme Court has upheld birthright citizenship for children of foreigners several times holding that the Fourteenth Amendment means what it says, especially in light of its history Moreover, repealing birthright citizenship is unnecessary. There is no evidence that undocumented immigrants come to the U.S. in large numbers just to give birth. Anchor babies, a term the American Heritage Dictionary calls offensive and disparaging, make no sense given that a child cannot sponsor a parent for citizenship for at least 21 years. Marshall Fitz, Esq. also defended it as a core part of our American heritage and reminds those who continue to attack it of its history: Why do these Republican members want to revive the long moribund policies that their party s most revered president (Lincoln) fought so hard to eradicate? Why do they want to create once again a legally sanctioned vulnerable and exploited underclass in this country? In order to advance an extreme anti-immigrant agenda under the dubious theory that changing the 14th Amendment s citizenship rules will deter unauthorized immigration.

7 Fitz adds that the 14th Amendment is not just another immigration policy It defines who we are as a nation and categorically rejects the notion that America is a country club led by elites who get to pick and choose who can become members. Eliminating birthright citizenship would do nothing to solve our immigration issues. In fact, it could have the opposite effect by increasing the size of the undocumented population. The Migration Policy Institute study found that if citizenship were denied to every child with at least one unauthorized parent, the unauthorized population in the U.S. would reach 24 million by Ultimately, this idea does nothing to advance real, immigration reform.

8 In the News Trump v. Hawaii 8 Countries initially on the list: Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, Somalia Range of Restrictions depending on the country North Korea and Syria suspends ALL nationals. Iran ok for nonimmigrant student and exchange-visitor visas (significant b/c majority of visa in last 3 years were nonimmigrant from this region especially Iran which is now exempted). Chad, Libya and Yemen no immigrant visa, no nonimmigrant business or tourist visas. Chad had sufficiently improved its practices and the President lifted ALL restrictions on its nationals Somalia no immigrant visas and more scrutiny of nonimmigrant visas. Venezuela only certain government officials and their family members can come on nonimmigrant business or tourist visa. Proclamation exempts green card holders and FN who have been granted asylum Also provides for case-by-case waivers Undue hardship Entry is in the national interest Would not pose a threat to public safety FN seeks to reside with a close family member Obtain urgent medical care Pursue significant business obligations The Proclamation is facially neutral towards religion. Standard of Review is Rational Basis. We will only strike down if the laws at issue lack any purpose other than a bare desire to harm a politically unpopular group.

9 The text says nothing about religion. 5 out of the 7 nations included have Muslim-majority populations. Yet that fact alone does not support an inference of religious hostility, given that the policy covers just 8% of the world s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks. Iraq is exempted from the Proclamation and it is one of the largest predominantly Muslim countries in the region. Exempted because of the close cooperative relationship between the U.S. and Iraqi Governments and the country s key role in combating terrorism in the region. Sudan and Chad, also Muslim-majority countries have been removed from the list of covered countries. Libya is being considered for removal given their steps to improve its practices. Plaintiffs State of Hawaii (operates the University of Hawaii system which recruits students and facility from the designated countries), 3 individuals who have family from Iran, Syria, and Yemen; the Muslim Association of Hawaii. DHS identified 16 countries as having deficient information-sharing practices and presenting national security concerns. Plaintiffs claim the President s Proclamation violates the Establishment Clause of the First Amendment because it was motivated not by concerns pertaining to national security but by animus toward Islam. 8 USC 1182(f) entrusts to the President the decisions whether and when to suspend entry whenever he finds that the entry of aliens would be detrimental to the national interest. President found that it was in the national interest to restrict entry of aliens who could not be vetted with adequate information both to protect national security and public safety, and to induce improvement by their home countries. The Proclamation crafted country-specific restrictions that would be most likely to encourage cooperation given each country s distinct circumstances while securing the Nation until such time as improvements occur.

10 One of the key objectives of the Proclamation is to encourage foreign governments to improve their practices, thus facilitating the Government s vetting process overall.

11 In the News AG Issues Directive Curtailing Police Participation in Federal Civil Immigration Enforcement

12 In the News Immigration Trust Directive New Jersey s law enforcement officers: Cannot stop, question, arrest, search, or detain any individual based solely on actual or suspected immigration status; Cannot ask the immigration status of any individual, unless doing so is necessary to the ongoing investigation of a serious offense and relevant to the offense under investigation; Cannot participate in civil immigration enforcement operations conducted by ICE; Cannot provide ICE with access to state or local law enforcement resources, including equipment, office space, databases, or property, unless those resources are readily available to the public; Cannot allow ICE to interview an individual arrested on a criminal charge unless that person is advised of his or her right to a lawyer.

13 V. Considerations for Prosecutors

14 A. Initial court appearances. At a defendant s initial court appearance before a judge, the prosecutor shall confirm that the defendant has been advised on the record that: 1. Potential charges and convictions may carry immigration consequences, see Padilla v. Kentucky, 559 U.S. 356 (2010) D. Charging, resolving, and sentencing cases. As in all cases, the prosecutor should be mindful of potential collateral consequences and consider such consequences in attempting to reach a just resolution of the case. Nothing in this Directive shall be construed to require any particular charge or sentence, to limit prosecutorial discretion in reaching a just resolution of the case, or to prevent the prosecutor from making any argument at sentencing. We know from experience that individuals are far less likely to report a crime to the local police if they fear that the responding officer will turn them over to federal immigration authorities, stated Grewal. That fear makes it more difficult for officers to solve crimes and bring suspects to justice. These new rules are designed to draw a clear distinction between local police and federal civil immigration authorities, ensuring that victims and witnesses feel safe reporting crimes to New Jersey s law enforcement officers. No law-abiding resident of this great state should live in fear that a routine traffic stop by local police will result in his or her deportation from this country.

15 NJ BAIL REFORM: IMPACT ON IMMIGRANTS HOW WILL IT AFFECT FOREIGN NATIONALS? SO FAR IT IS A MESS! Bail Reform s Objective What s the point of bail reform? To keep violent offenders locked up before trial, and to free non-violent offenders who previously couldn t afford to post bail. New Rules NJSA 2A: Shift Resource-based system (money bail $) to Risk-based system Non-Monetary release and conditions Possible Worst case outcome no bail/no release Complaint Warrant vs. Complaint Summons Eligible Defendant for Risk-based Release Defendant who receives a warrant Involves an indictable or a disorderly persons offense Eligible Defendant who violates conditions of bail See R. 3:3-1(e) and (f) Held for 48 hours for pretrial risk assessment

16 Non-Eligible Defendant for Risk-based Release Defendant who receives a summons Defendant is released on summons See R. 3:3-1(c) Risk Assessment Hearing NJSA 2A: Within 48 hours of commitment to Jail Decision based on risk assessment and any information provided by prosecutor or defendant: Likelihood D will be arrested for new crime? Likelihood D will be arrested for new violent crime? Failure to Appear likely? Age, current charge, prior conviction and sentences, prior FTA s Defendant to receive release conditions in writing

17 Forms of Release NJSA 2A:162-16(b) ROR Non-monetary release with conditions 12 possible conditions (including curfew, treatment and electronic monitoring) Monetary Bail Some combination of $ and conditions Pretrial Detention Hearing NJSA 2A: Detention No release at all Only on the State s motion (not court request) If court grants motion, D can appeal to Appellate Division (NJSA 2A:162-18(c)) Right to counsel and cross-examination of witnesses Prosecutor to establish PC for the offense (preponderance standard) Judge to consider many factors (NJSA 2A:162-20) Order of Detention must include written findings of fact and reasons for detention (NJSA 2A:162-21)

18 A complaint warrant shall be issued when a judicial officer finds pursuant to R. 3:3-1(a) that there is probable cause to believe D committed: murder, aggravated manslaughter, manslaughter, aggravated sexual assault, sexual assault, robbery, carjacking, or escape attempted to commit any of the foregoing crimes, or where the defendant has been extradited from another state for the current charge a violation of Chapter 35 of Title 2C that constitutes a first or second degree crime a crime involving the possession or use of a firearm the following first or second degree crimes subject to the No Early Release Act (N.J.S.A. 2C:43-7.2), vehicular homicide (N.J.S.A. 2C:11-5), aggravated assault (N.J.S.A. 2C:12-1(b)), disarming a law enforcement officer (N.J.S.A. 2C:12-11), kidnapping (N.J.S.A. 2C:13-1), aggravated arson (N.J.S.A. 2C:17-1(a)(1)), burglary (N.J.S.A. 2C:18-2), extortion (N.J.S.A. 2C:20-5), booby traps in manufacturing or distribution facilities (N.J.S.A. 2C:35-4.1(b)), strict liability for drug induced deaths (N.J.S.A. 2C:35-9), terrorism (N.J.S.A. 2C:38-2), producing or possessing chemical weapons, biological agents or nuclear or radiological devices (N.J.S.A. 2C:38-3), racketeering (N.J.S.A. 2C:41-2), firearms trafficking (N.J.S.A. 2C:39-9(i)), causing or permitting a child to engage in a prohibited sexual act knowing that the act may be reproduced or reconstructed in any manner, or be part of an exhibition or performance (N.J.S.A. 2C:24-4(b)(3)) or finds that there is probable cause to believe that the defendant attempted to commit any of the foregoing crimes

19 Impact on Foreign Nationals charged???? Prosecutors will be filling motions for pretrial detention on Endangering Welfare of a Minor (sexual and non-sexual) NJSA 2A a(4) [we have seen some relief from immigration mandatory detention now we might be stuck with state mandatory pretrial detention] Any issuance of a warrant automatically results in 48 hours of detention. Lowhanging fruit for ICE? Police Officers who could use a summons purposely are using warrants so FN goes to jail Any domestic violence Any firearms offense Megans Law Failure to Register