Texas Immigration Lawyer Blog

Immigrants' Loss--America's Loss

I've received many calls and emails this week. Immigrants and their supporters are anxious about what Donald Trump's presidency will mean for them. Here are a few thoughts (but no answers):

DACA

Individuals with Deferred Action for Childhood Arrivals (DACA) are worried that their lives are going to be torn apart. DACA has been an inspiration to me as I have seen young people use their education and talents to work in their chosen professions and to improve their lives and communities. It will be a great loss for these U.S. educated individuals with strong ties here to once again be unable to work or drive legally. 

President-Elect Trump has said that he intends to immediately cancel "unconstitutional executive action[s]" including DACA. It is unknown whether he will allow those with DACA to continue working until their authorizations expire or will immediately cancel all employment authorizations and deferred action. 

The loss of DACA will hurt us all. 

Removals

Individuals who are in the U.S. unlawfully are subject to removal (deportation). The Obama administration has already removed or deported more people than any other president. They have concentrated efforts on those with significant criminal convictions. Mr. Trump says he will "begin removing the more than 2 million criminal illegal immigrants from the country." The Obama administration already has the Immigration Courts backlogged for years with removal cases. The Trump administration will need to pour considerable money into the Immigration Courts to move faster than his predecessor. 

I am concerned that he will expand the definition of "criminal alien" to include minor traffic offenses, including driving without a license. This will lead to racial profiling and fear of police in our communities. 

Anti-Immigrant Advisors 

Kris Kobach, Kansas Secretary of State and author of numerous egregious and unconstitutional immigration laws (think racial profiling in Arizona), has announced that he will be on Mr. Trump's transition team to advise him on immigration issues. It is deeply troubling (but not surprising) that Mr. Kobach will be influencing immigration policy in the Trump administration. 

As I said, no answers ...

 

Sore Loser, Jan Brewer, Continues Anti-Immigrant Crusade

Immigration Policy Center

Despite losing both the legal and public relations battles in the fight over SB 1070, Arizona’s Governor Jan Brewer was anxious to put Arizona back in the spotlight this week. Although she can’t prevent people from from requesting or receiving deferred action, she issued an executive order that attempts to prevent Arizona recipients of Deferred Action for Childhood Arrivals (DACA) from obtaining driver’s licenses in her state. The order, which also banned access to public benefits (something DACA recipients are ineligible for, anyway) has been characterized as mean-spirited and belligerent, but it is also just wrong on the facts.

Brewer claimed to have Arizona’s best interests at heart when she announced her decision to block beneficiaries of deferred action from getting a driver’s license or receiving public benefits. Otherwise, she claimed, the onslaught of new applicants for benefits and licenses would have “significant and lasting impacts on the Arizona budget, its health care system and additional public benefits that Arizona taxpayers fund.”

As with her defense of SB 1070, this hyperbole fuels a political position unsupported by facts. The burden Brewer fears doesn’t add up: Putting aside the fact that people with deferred action are not eligible for public benefits (like welfare or food stamps); Gov. Brewer is targeting 80,000 potential deferred action beneficiaries in a state with 6.5 million people. That’s 1.2% of the population. More importantly, these are 80,000 young people. They are not going to suddenly overwhelm the school system because many of them are already in it. And those who are out of high school might be persuaded by the Obama initiative to attend college, meaning that colleges would collect tuition they wouldn’t otherwise receive. Moreover, the deferred action beneficiaries belong to an age group (30 and under) that places few demands on the healthcare system, meaning that emergency rooms are not going to suddenly be overwhelmed by a flood of sick people clutching Employment Authorization Documents given to them by the Obama administration.

With respect to driver’s licenses, the ACLU of Arizona quickly noted that Brewer’s executive order may actually violate existing law and policy in the state. According to the legal provision cited in her executive order, applicants for drivers licenses need only establish that their “presence” in the United States is authorized. While recipients of deferred action may lack valid immigration status, the Arizona ACLU notes that these young people will have authorized presence under the immigration laws. What’s more, the list of acceptable documents on the website of Arizona’s Motor Vehicle Department includes Employment Authorization Documents and Social Security cards—both of which are available to recipients of deferred action. Thus, in the name of protesting federal immigration policy, Gov. Brewer may have contradicted the law of her own state.

While it has been widely acknowledged that issues like access to drivers licenses and instate tuition are likely to be different on a state by state basis, there is something both petulant and short-sighted in Brewer’s effort to make life even more difficult for young people eligible for deferred action. At a time when many in Arizona may have felt that they could start to put the worst of SB 1070 behind them, the governor has once again shown how relying on misguided facts lead not only to bad policy but bad publicity.

 

Supreme Court: preemption of "paper please" portion of Arizona law premature

This morning the U.S. Supreme Court released it's opinion in Arizona v. U.S. 

The Court held that 3 of the 4 challenged provisions of Arizona SB 1070 were preempted by federal law, but that the controversial §2(B) (commonly referred to as the "papers please" portion of the law) cannot be enjoined "before the state courts had an opportunity to construe it and without some showing that enforcement of the provision in fact conflicts with federal immigration law and its objectives."

Regarding the "papers please" section of SB 1070, the Court states that:

There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law. ... This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.

The other 3 sections were held to be preempted. Two of these create state misdemeanor offenses for failing to carry alien registration documents and for unauthorized aliens applying for work or working in Arizona. Section 6 authorizes warrentless arrest of aliens suspected of being removaable.  

 The decision was a 5-3 decision with Justice Kagan not participating. 

University of Texas Law School to Host Panel Discussion on State Anti-Immigrant Laws

A panel discussion entitled “Cutting Edge Issues in Immigration Law: State Anti-Immigrant Statutes and Litigation” will be held at the Law School on Monday, February 13, 2012, from 11:30 am to 1:30 pm in the Sheffield Room.  The Law School’s William Wayne Justice Center for Public Interest Law and the Immigration and Nationality Section of the State Bar of Texas are cosponsoring the event.   

Professor Barbara Hines, co-director of the Law School’s Immigration Clinic, will moderate discussion by two nationally known attorneys who are involved in current challenges to state anti-immigrant statutes, Nina Perales, Director of Litigation at MALDEF, and Sam Brooke, staff attorney with the Southern Poverty Law Center’s Immigrant Justice Project.  

Perales is a leading civil rights litigator and an expert on a range of issues, including immigrants’ rights, voting rights, and redistricting litigation. Among her current cases, she recently successfully argued in the lawsuit challenging Arizona’s anti-immigrant law known as SB 1070. She also leads the litigation that has struck down repeated anti-immigrant laws in Farmers Branch, Texas.  Brooke is litigating state anti-immigrant laws throughout the Southeast, including Alabama’s HB56, Georgia’s HB87, and South Carolina’s SB20.  

The event will include two sessions.  The first session, from 11:30 am - 12:30 pm, will explore the current wave of state anti-immigrant laws.  The second session, from 12:30 - 1:30 pm, will examine legal strategies in several pending cases challenging state anti-immigrant laws.  Audience members may attend one or both sessions.

The State Bar of Texas has accredited this event for 2 hours of continuing legal education.  The event is free and open to students, the law school community, and the public, but space is limited.

Please RSVP to Rachel Sidopulos, [email protected], by February 8 to register and reserve box lunch. 

Contact: Mary Crouter, assistant director of the William Wayne Justice Center for Public Interest Law, UT Law, 512-232-7855, [email protected]

Perry defends in-state tuition for undocumented children

Texas Tribune

When he was attacked for offering in-state tuition to the children of illegal immigrants, Perry started by explaining at length his work to secure the border, then accused opponents of "having no heart" for wanting to keep kids who had ended up in Texas through no fault of their own away from an education. He said in no uncertain terms that he still stood by his decision. He also expressed his support for Arizona's extra-tough immigration laws, despite the fact that he has consistently said they wouldn't work in Texas.

Washburn Law October 2011 Symposium: Breaching Borders: State Encroachment into the Federal Immigration Domain?

Breaching Borders: State Encroachment into the Federal Immigration Domain?
October 20-21, 2011
Sponsored by the Washburn University School of Law Center for Law and Government and the Washburn Law Journal
http://washburnlaw.edu/breachingborders

Washburn Law is pleased to host a symposium exploring the political and legal controversies mounting at the intersection of federal and state immigration law. Three plenary sessions will provide a comparative assessment of state immigration policies, explore immigration and employment, and re-visit the concept of birthright citizenship.

Speakers and panelists include:

- Kris W. Kobach, Secretary of State for Kansas;
- Nora V. Demleitner, Dean and Professor of Law, Hofstra University School of Law;
- Peter H. Schuck, Simeon E. Baldwin Professor Emeritus of Law, Yale Law School;
- Margaret Stock, Adjunct Instructor, University of Alaska Anchorage, Department of Political Science;
- Peter S. Vincent, Principal Legal Advisor, U.S. Immigration and Customs Enforcement (ICE).

A complete schedule of presentations and speaker information is available at
http://washburnlaw.edu/breachingborders

 

Perry Seeks Blessing From Sheriff Joe immigration hardliner

Texas Tribune by Jay Root

Gov. Rick Perry, who once said he was “intrigued and open” to an amnesty program for Mexican workers in the United States illegally, is now courting the support of a famous immigration hardliner: Maricopa County Sheriff Joe Arpaio of Arizona.

Endorsements are often overrated as campaign tools, but an official blessing from the man who calls himself “America’s Toughest Sheriff” could help Perry overcome conservative doubts about his relatively moderate positions on the issue of illegal immigration.

During a half-hour interview with the Tribune, Arpaio made it clear that he remained open to the idea: He said he felt a kinship with Texas in general, and a fondness for Perry in particular. Arpaio said he spoke with Perry on the phone last week, and to his campaign aides before that.

Arpaio said it was clear they wanted his endorsement, but he is keeping his powder dry for now.

* * *

Perry’s insistence that new federal immigration policies shouldn't be discussed until the border is "secure" sparks concern from the law-and-order sheriff. Arpaio is a fierce supporter of using local law enforcement to crack down on illegal immigration, helping to lead the charge for a controversial Arizona law that gives police more authority to arrest illegal immigrants. Perry opposed an Arizona-stye crackdown in Texas and says the federal government should get control of the border first, then consider legal reforms.

“When you say ‘first,’ that means that they don’t have to raid businesses. They don’t have to lock up illegals on the streets — ‘oh let’s not do that, let’s secure the border first,’" Arpaio said. “The border was never going be completely secure. You have to talk about immigration reform at the same time you’re talking about the border.”

Editorial: It Gets Even Worse

New York Times

If you thought the do-it-yourself anti-immigrant schemes couldn’t get any more repellent, you were wrong. New laws in Georgia, Alabama and South Carolina are following — and in some ways outdoing — Arizona’s attempt to engineer the mass expulsion of the undocumented, no matter the damage to the Constitution, public safety, local economies and immigrant families.

The laws vary in their details but share a common strategy: to make it impossible for people without papers to live without fear.

They give new powers to local police untrained in immigration law. They force businesses to purge work forces and schools to check students’ immigration status. And they greatly increase the danger of unreasonable searches, false arrests, racial profiling and other abuses, not just against immigrants, but anyone who may look like some officer’s idea of an illegal immigrant.

The laws empower local police officers to demand the documents of people they meet, and to detain those they suspect are here illegally. That means they can make warrantless arrests for assumed civil immigration violations, a stunning abuse of power.

The laws also make it illegal to give a ride to the undocumented, so a son could land in jail for driving his mother to the supermarket, or a church volunteer for ferrying families to a soup kitchen. They require businesses to check employees against the error-plagued federal E-Verify database, and to fire those who are flagged as unauthorized. Once the purge takes hold in agriculture, there will be no one left to pick onions, peaches and cotton. The immigrant labor shortage is already being felt in Georgia, where crops are rotting and the governor has called for using jobless ex-convicts in the fields.

Alabama’s law is the most extreme. It forces public school districts to determine the immigration status of students and their parents and report the data to the state. Alabama still can’t bar them from enrolling, since the Supreme Court declared in Plyler v. Doe that all children are entitled to a public education. The state’s law seems designed to challenge that ruling, as it turns school officials into de facto immigration agents and impels frightened parents to keep their children home.

It has long been clear that America is suffering for lack of a well-functioning immigration system that better protects workers and families, promotes lawfulness at the border and in the workplace, and gives hardworking people a path to legality.

Congress’s inaction has let the states run amok with their own destructive ideas. Supporters insist they are only trying to enforce the law. But trying to catch and deport 11 million people is lunacy. The damage to this country — its citizens and its laws — is enormous.

Civil rights organizations are suing or threatening to sue to block these noxious state laws. So far federal courts have enjoined parts of bad local laws in Arizona, Georgia, Utah and Indiana. President Obama’s Department of Justice has sued Arizona but not the other states. It needs to fight harder.

The Anti-Immigration Crusader

New York Times by Jason DeParle

An excellent article about Dr. John Tanton, anti-immigration crusader and founder of Numbers USA,  the Federation for American Immigration Reform (FAIR), and the Center for Immigration Reform. His organizations have helped defeat Comprehensive Immigration Reform proposed by President George W. Bush and  the DREAM Act last year, and to write Arizona SB 1070 and other anti-immigrant legislation.

While the whole movement grew more vehement as illegal immigration increased, Dr. Tanton seemed especially open to provocative allies and ideas. He set off a storm of protests two decades ago with a memorandum filled with dark warnings about the “Latin onslaught.” Word soon followed that FAIR was taking money from the Pioneer Fund, a foundation that promoted theories of the genetic superiority of whites.

Dr. Tanton, who remains on the FAIR board, denied charges of racial bias and donated his papers to the University of Michigan to show that he and colleagues “are not the unsavory types sometimes alleged.” They include hundreds of private letters, some outlining his interest in genetic differences between the races and concerns about the country’s changing ethnic mix.

 

Arizona flinches on immigration

New York Times Editorial

Arizona, the nation’s leader in over-the-top immigration laws, has pulled back. Its Republican-controlled Senate rejected five anti-immigration bills in one day last week. It was a startling rebuke to the Senate president, the architect of the state’s go-it-alone approach to enforcement. Other states weighing similar crackdowns should take note.

The reversal has to do with money, of course. The bills were dead once the state’s business lobby weighed in against them. Sixty chief executives signed a letter to the Legislature saying the harsh immigration measures were having “unintended consequences” — boycotts, lost jobs, canceled contracts, publicity so bad that businesses with Arizona in their names were suffering — even one based in Brooklyn. The chief executive of the Chamber of Commerce and Industry, Glenn Hamer, said the reaction to Arizona’s extremism had already cost the state $15 million to $150 million in lost tourism revenue.

* * *

While it is a relief to see Arizona realizing that bigotry is bad for business, it is not the end of harsh, shortsighted laws. Other legislatures were already striving to follow Arizona’s model. There is still a federal vacuum on immigration reform that allows state mischief to thrive. And it’s important to note that none of the objections by Arizona’s businesses had anything to do with the strong moral arguments against xenophobic anti-immigration bills.