Law Criminalizing ‘Encouragement or Inducement’ of Immigrants to Live in the US Unlawfully Is Upheld in SCOTUS Case

 

Written by Kelly Chauvin, Summer 2023 Legal Intern for the American Immigration Council

Last month, the U.S. Supreme Court held that a section of immigration law that forbids “encourag[ing] or induc[ing]” a non-citizen to enter or reside in the United States did not violate the U.S. Constitution’s protection of free speech guaranteed in the First Amendment. The Court’s decision, however, places certain limits on the statute’s application.

The case of U.S. v. Hansen involved the prosecution of a fraudster whom the government charged with violating the “encouragement and inducement” statute after he scammed immigrants by promising them a path to U.S. citizenship through adult adoptions. Unfortunately for the victims, this path does not exist.

In fighting the charges, the defendant argued the “encourage or induce” subsection was unconstitutional because in its effort to regulate unprotected speech—like criminal conduct—the law risked infringing on protected speech.

More information https://www.inmigracionyvisas.com/a5789-in-the-US-Is-Upheld-in-SCOTUS-Case.html

Immigration Agencies’ Intrusive Searches Of Cell Phones, Laptops Are Ruled Unconstitutional

By Emma Winger

A federal court ruled this week that sweeping policies permitting U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) to search personal cell phones, laptops, and other electronic devices without reasonable suspicion are unconstitutional.

The policies that the court rejected authorized CBP and ICE officers to search the contents of electronic devices of people arriving at U.S. borders, including U.S. airports, without reasonable suspicion that those devices might have evidence of illegal activity and without a court order. Immigration officers could randomly search the cell phones and laptops of anyone arriving in the United States, including U.S. citizens and lawful permanent residents.

In Alasaad v. McAleenan, ten U.S. citizens and one lawful permanent resident challenged these policies, arguing, in part, that they violate the Fourth Amendment to the U.S. Constitution. On Tuesday, the court agreed.

More information...

 

https://www.inmigracionyvisas.com/a4626-search-the-cell-phones-and-laptops-of-anyone-arriving.html

 

Source: www.immigrationimpact.com 

Which Immigration Cases Will The Supreme Court Rule On This Session?

By Katie Rane www.immigrationimpact.com

The Supreme Court began a new session this October, and in the coming months, the justices will hear several high-profile immigration cases.

These cases involve the attempted termination of the Deferred Action for Childhood Arrivals (DACA) initiative, the highly-criticized killing of a young boy in Mexico by a Border Patrol agent, and the criminal prosecution of immigrant workers.


The Termination of the DACA Initiative

On November 12, the Supreme Court will consider the Trump administration’s decision to end DACA, an Obama-era initiative that offers legal protection to some immigrants who arrived in the United States as children. Previous decisions from lower courts have temporarily stopped the termination.

The plaintiffs in this case (Department of Homeland Security v. Regents of the University of California) claim that the attempted rescission of DACA violates the Administrative Procedure Act (APA). The APA outlines specific procedures that must be followed in implementing large-scale policy changes to prohibit executive decisions that are “arbitrary and capricious.”

The end of DACA would upend the lives of hundreds of thousands of people in the United States and would increase the number of unauthorized immigrants in the United States by nearly 700,000. This could have disastrous effects for DACA recipients, their families, and the country at large.


Young Boy in Mexico Killed by Border Patrol Agent

The Supreme Court will also hear a case on November 12 based on the story of a 15-year-old boy who was shot in Mexico by a Border Patrol agent in the United States. The case is Hernandez v Mesa.

Sergio Hernandez, a Mexican citizen, was playing with a friend in the canal between Juarez, Mexico and El Paso, Texas when Border Patrol agent Jesus Mesa fired shots from the U.S. side. One bullet hit Hernandez, who was on the Mexican side of the border, killing him.

The Court will determine if Hernandez’s family can sue the Border Patrol agent for damages.

In order to recognize the family’s claim for damages, the Court must determine that the agent violated the U.S. Constitution by using excessive, deadly force against Hernandez. In making this determination, the Court will consider whether Agent Mesa is protected under “qualified immunity,” a legal doctrine that protects federal officers from prosecution when they act within the scope of their employment.

Cases involving excessive force and abuse rarely result in serious disciplinary action by the agency. A Bivens remedy in this case would create real consequences for immigration officials who violate noncitizens’ rights.

The Prosecution of Immigrant Workers The immigrant worker case (Kansas v. Garcia) deals with three individuals accused of identity theft—a state crime—based on information they provided in federal employment documents. On October 16, the Supreme Court will address whether federal documents can support state criminal charges and whether federal immigration law prevents states from criminally charging noncitizens for identity theft.

This case highlights a recurring pattern in the prosecution of unauthorized immigrant workers: it is the workers, not the employers, being brought to court.

For example, in the Mississippi ICE raids this summer, a federal investigator testified that there was probable cause to believe that employers hired unauthorized workers “for the purpose of commercial advantage or private financial gain.” Yet none of the employers have been prosecuted.

Each of these cases will have far-reaching policy implications affecting immigrants throughout the United States. Hopefully, the Court will take this opportunity to increase the due process rights of individuals impacted by immigration enforcement in the United States.

Source: www.immigrationimpact.com

https://www.inmigracionyvisas.com/a4550-Immigration-Cases-Will-the-Supreme-Court-Rule.html

DOJ Moves To Further Politicize Immigration Court System

By Katie Shepherd www.immigrationimpact.com 

The Trump administration implemented more drastic changes to the U.S. immigration court system. A new rule gives the director of the Executive Office for Immigration Review (EOIR)—a Trump political appointee—the power to adjudicate cases and appeals. 

Described as a “wolf in sheep’s clothing,” the rule turns the immigration court system into a law enforcement agency and undermines any semblance of judicial independence within the immigration court system. 

The new interim final rule was published by the Department of Justice (DOJ) just days after it was announced by the administration. It allows the director of EOIR to decide cases that “cannot be completed in a timely fashion”–within 90 days for detained cases and 180 days for non-detained cases. The move raises grave concerns about having a political appointee adjudicate immigration cases—essentially allowing the director to shape case law. The director reports to Attorney General William Barr and may now feel beholden to his political whims. 

Currently, only immigration judges, the Board of Immigration Appeals, and the attorney general are permitted to adjudicate cases. The immigration court system is currently housed within the DOJ, the same executive branch agency responsible for prosecuting immigrants in federal court. This is an inherent conflict of interest. 

This summer, the National Association of Immigration Judges (NAIJ), American Immigration Lawyers Association (AILA), and others sent a letter to Congress, calling for an independent immigration court system. 

The new rule has met immediate criticism. NAIJ issued a stinging statement in response, calling the announcement: “An unprecedented attempt at agency overreach to dismantle the Immigration Court,” alleging that the “DOJ’s action ends any transparency and assurance of independent decision making over individual cases.” 

The rule also formalizes the creation of the Office of Policy, which is housed within EOIR and has been in operation since 2017. Many of the more problematic policies issued by EOIR over the past year—including initiatives to speed up deportations and weaken due process protections—have originated from this Office of Policy. The office has remained largely unresponsive to stakeholders seeking clarification or basic information about new policies. 

Monday’s new rule is hardly the first time the Trump administration has taken aim at the immigration court system. 

Earlier this month, the Trump administration moved to decertify the immigration judge’s union, the 40-year-old collective bargaining representative of U.S. immigration judges. 

The House Judiciary Committee issued a strong statement in response: “The Trump Administration has taken unprecedented steps to strip immigration judges of judicial independence by limiting their ability to manage their dockets and make informed discretionary decisions.” 

The committee pledged to hold hearings in the coming months to explore the current state of the immigration court system and the possibility of legislation to create an independent immigration court. 

The new rule has concerning implications for the future of the immigration court system and erosion of due process for the thousands of immigrants whose lives are now in the hands of the EOIR director. 

 

Source: www.immigrationimpact.com 

https://www.inmigracionyvisas.com/a4438-DOJ-Further-Politicize-Immigration-Court-System.html

Census Bureau Asked 250,000 Households About Their Citizenship Status

By Walter Ewing 

Despite losing at the Supreme Court, the Trump administration still managed to ask nearly a quarter of a million U.S. households about the citizenship status of their household members. 

That’s because the administration had already started mailing out its 2019 Census Test—a nationwide test used to inform the upcoming 2020 Census—two weeks before the Supreme Court made its ruling. In reaching its decision, the Supreme Court effectively barred the inclusion of a citizenship question in the 2020 Census. Such a question can appear on the Census, but the Court said the government failed to offer a suitable justification for adding it now. 

Yet the question had already been included in some versions of the 2019 Census Test. The Census Bureau wanted to gauge how it would impact the response rates of the near-250,000 households that received it. If fewer people responded to the test that included the question than tests that did not, the bureau could change their strategy. The bureau could hire more census takers to conduct in-person interviews to compensate for fewer people filling out and mailing in the 2020 Census form. 

This became a moot point on June 27 when the Court ruled against the Trump administration. The Court said the government’s justification for including a citizenship question—to enforce the Voting Rights Act—was “contrived.” 

Rather, the question was a “pretext” for a politically-motivated attempt to scare immigrant households into not answering the Census. As a result, communities with large immigrant populations would lose political representation during the next round of congressional redistricting. They would also suffer from cuts to public funds for roads, schools, hospitals, and health care that are dependent on population size. 

But by the time this ruling came down, the Census Bureau had already started mailing out its 2019 Test—complete with citizenship question. Although the Test went to relatively few people compared to those who will receive the 2020 Census, it is unclear how the inclusion of the citizenship question will affect respondents.

Will it sow fear and confusion in immigrant communities ahead of the 2020 Census? Just as importantly, what is the Census Bureau going to do with the responses it receives from those households that completed and returned the Test? 

Source: www.immigrationimpact.com 

https://www.inmigracionyvisas.com/a4335-Census-Bureau-Asked-About-Their-Citizenship-Status.html

What Happens To Dreamers Now That The Supreme Court Is Hearing The DACA Case?

By Brenda Solorzano

After months of speculation, the Supreme Court agreed to review three cases challenging the Trump administration’s decision to end Deferred Action for Childhood Arrivals (DACA). The Court is expected to issue its decision by June 2020, coming in the midst of the presidential race. In the meantime, current DACA recipients remain eligible to submit their renewal applications. 

Even if the Supreme Court rules against the Trump administration, a long-term solution for Dreamers would not be provided. It would only restore the situation to the status quo before the Trump administration ended DACA, leaving many young people with lapsed or no protections. 

The cases reached the Supreme Court after the Department of Justice filed a special request for “certiorari before judgement,” which skips waiting on a federal appeals courts decision and requests to be heard by the Court. In total, four appeals courts have heard arguments on whether President Trump went through the proper procedure before ending DACA. Both the Ninth Circuit and the Fourth Circuit held that Trump’s decision to end DACA was improper. Decisions are still pending in the Second Circuit and D.C. Circuit. 

Currently, U.S. Citizenship and Immigration Services (USCIS) is required to continue accepting and processing DACA renewal applications. Those who are currently granted renewals will continue to receive protection from deportation and work permits, unless the Supreme Court issues a decision otherwise. 

What does the Court’s future decision mean for DACA recipients? For most, continued and distressing uncertainty. 

If the Court rules in the Trump administration’s favor, nearly 700,000 DACA recipients would be left without permits to work legally and will be at risk of deportation. As a result, DACA recipients are left to wonder what their status will be in the future. 

DACA recipients are not the only ones that hope for an opportunity to stay in the country that they call home. In June, the House of Representatives took the opportunity to put forward definitive answers for the future of DACA by passing the American Dream and Promise Act. This bill provides a path to citizenship for DACA recipients, as well as those with Temporary Protected Status and protections under Deferred Enforced Departure. 

The Supreme Court’s decision to take up the DACA cases emphasizes that Dreamers can no longer wait for more court decisions granting temporary relief of deportation. For them, hopes for a permanent solution currently lie in the hands of Congress. As polls show, the vast majority of Americans support Dreamers and want to give them an opportunity to continue to positively impact the country. That is why a long-term solution for Dreamers and others who live in insecurity is way past due.

 

Source: www.immigrationimpact.com  

https://www.inmigracionyvisas.com/a4303-Now-the-Supreme-Court-Is-Hearing-the-DACA-Case.html

Appeals Court Says Asylum Seekers May Now Challenge Their Deportation in Federal Court

Written by Emma Winger

Many asylum seekers who travel to the United States seeking protection often receive something much less—they are arrested by immigration officials and provided no meaningful way to challenge their deportation in federal court. 

Last week, in Thuraissigiam v. U.S. Department of Homeland Security, the Ninth Circuit Court of Appeals became the first federal appeals court to say that depriving these asylum seekers of federal court review violated the U.S. Constitution. This decision adds a key level of protection for a vulnerable population currently under attack by the Trump administration. 

Because of their circumstances, asylum seekers are often unable to meet the legal requirements to enter the United States. If they lack proper documentation, they are forced into an expedited removal process. A single asylum officer decides whether their fear is credible and there is only a cursory review by an immigration judge. In Fiscal Year 2016, 41 percent of all deportations were through this expedited removal process. 

The process is deeply flawed. Immigration officers routinely violate even the minimal protections in place for asylum seekers in expedited removal proceedings. Immigration officers fail to inform migrants that they may seek asylum in the United States, do not inquire about their fear of persecution, provide inadequate interpretation, and fail to correctly record the results of the interview or explain the reasons for denying a claim. When an asylum seeker asks for review by an immigration judge, they often do not have an immigration attorney. 

Vijayakumar Thuraissigiam, an asylum seeker from Sri Lanka, faced this flawed expedited removal process. In his case, the asylum officer and immigration judge failed to follow the required procedures and failed to apply the correct legal standards when they evaluated his fear claim. He tried to challenge it in federal court, but the district court held that it could not consider Mr. Thuraissigiam’s claims under the immigration laws. 

When he appealed that decision, the Ninth Circuit reversed it, concluding that the laws limiting federal court review violated the Suspension Clause. The court explained that the Suspension Clause—part of the original Constitution and therefore pre-dating even the Bill of Rights—was designed to protect access to the courts. This vital protection, available through habeas corpus proceedings, has been accessible to non-citizens as well as citizens in the United States since its founding. 

The court concluded that Mr. Thuraissigiam and other asylum seekers who raise similar procedural challenges to the expedited removal process have the right to challenge their expedited removal process in federal court. 

Though the government could ask for an additional review from a larger group of Ninth Circuit judges or take the case to the Supreme Court, the decision in this case is significant. For now, more asylum seekers may have their day in court, securing a vital protection and giving them an opportunity to challenge a rushed deportation process. 

Fuente: http://immigrationimpact.com/

https://www.inmigracionyvisas.com/a4062-Asylum-Seekers-May-Now-Challenge-Their-Deportation-in-Federal-Court.html

Congress Members and Others Argue Against Turning Back Asylum Seekers

Written by Karolina Walters

The Trump administration’s policy of turning back asylum seekers has been devastating, as vulnerable people are repeatedly denied access to the asylum process at ports of entry (POEs) along the U.S.-Mexico border. 

Now, Members of Congress, states, organizations, and law professors are standing up to the administration by supporting a lawsuit that challenges the government’s inhumane actions. These prominent groups filed amicus briefs that collectively dismantled the government’s arguments seeking to dismiss the lawsuit, Al Otro Lado v. Nielsen. 

In the lawsuit, the organizational plaintiff Al Otro Lado, Inc. and thirteen individual plaintiffs argue that turning back asylum seekers denies them their statutory right to access the asylum process and their constitutional right to due process of law. The practice also violates U.S. obligations under international law. 

The government argues its treatment of asylum seekers is justified, maintaining it has the right to control the flow of persons at the border and that it does not have the “capacity” to process all those seeking access to the asylum process at the southern border. It also argues U.S. law does not apply to asylum seekers who were prevented from accessing the asylum process, even if they were denied access by U.S. officials mere feet from the border. 

The amicus brief filed by 77 members of Congress argued that the government’s policy violates the congressional intent behind the Immigration and Nationality Act (INA). The Act protects access to the asylum process and makes that access mandatory. 

It does not allow the government to deny access to the asylum process, even temporarily, based on the whims of the Executive Branch. 

The brief also provided evidence against the government’s “lack of capacity” arguments. The evidence showed U.S. Customs and Border Protection (CBP) is processing asylum seekers below their own stated capacity and that the administration has not prioritized increasing capacity in budgetary requests. 

Attorneys General from 19 states and the District of Columbia filed a second brief detailing the inhumane and traumatizing conditions faced by asylum seekers turned back from the U.S. border. The Attorneys Generals argue their states and the District welcome more than 73 percent of the asylees entering the United States and will have to divert additional resources to public schools and health systems, among other service providers, to “assist the victims of the unnecessary trauma that defendants’ Turnback Policy causes.” 

A group of immigration law professors filed another brief attacking the government’s claims that asylum seekers’ rights are determined solely by a border line drawn on a map. The law professors argue that U.S. officials act under U.S. law when they keep asylum seekers from accessing the asylum process: 

“ [T]heir very ability to exert governmental power on [asylum seekers] shows that those [asylum seekers] had reached the place where U.S. power exists… [Moreover], if U.S. power projects beyond the map line, then so too does the Constitution’s demand that the government not deprive [these individuals] of due process. ” 

Amnesty International filed a brief explaining that under international law, the United States cannot return someone to any place where they may fear for their lives. The brief outlines how the Mexican border region qualifies as such a place for asylum seekers. Five other organizations which advocate for immigrant youth, including Kids in Need of Defense, focused on the particular dangers faced by unaccompanied minors subjected to the policy. 

19 other organizations presented evidence that undermined the government’s justifications for its treatment of asylum seekers. Despite the claim of insufficient capacity to process asylum seekers, the brief included data that in October 2016, CBP processed more than twice as many individuals at POEs than in December 2018. 

“Since October 2016,” the brief states, “every field office at the U.S.-Mexico border has reported significant declines in the processing of undocumented immigrants. ” 

It asserts that the real motivation behind the government’s policy is not a lack of capacity, but rather “blatant animus toward immigrants, particularly those from Latin America, and a desire to deter current and future migrants from seeking asylum in the United States.” 

These six diverse briefs share a common theme: the law and the facts do not justify, or even support, the government’s turn backs of asylum seekers at the U.S.-Mexico border. 

 

 

Source: http://immigrationimpact.com/

http://www.inmigracionyvisas.com/a4034-argue-rejection-against-asylum-seekers.html

DACA Is Still In Effect As It Heads To The Supreme Court

Written by Aaron Reichlin-Melnick

The Ninth Circuit Court of Appeals issued a stinging rebuke to President Trump’s ongoing efforts to end the Deferred Action for Childhood Arrivals (DACA) initiative last week, unanimously upholding a lower court injunction which had blocked the Trump administration from ending the program. 

Just three days before that hearing, the Department of Justice (DOJ) took the unusual step of asking the Supreme Court to bypass the appeals process and hear the DACA case before the Ninth Circuit issued a decision. Now that the Ninth Circuit has ruled, the Supreme Court could take up the case as early as next spring—with DACA remaining in effect until they rule. 

Back in September 2017, the administration announced that it would be ending DACA, the initiative which allows undocumented immigrants brought to the United States as children to receive temporary permission to remain in the country. Multiple lawsuits challenging the termination of DACA soon followed. 

In one of those challenges, a federal court in San Francisco found that the administration’s termination of DACA was “based on a flawed legal premise” and ordered the government to continue processing renewal applications. Courts in New York and the District of Columbia soon followed suit with similar orders, which remain on appeal. 

The Ninth Circuit’s decision concluded the same. Though DOJ had argued the original DACA initiative was illegal and unconstitutional—supposedly giving the agency no legal ability to review or continue the program—the court found differently. The Ninth Circuit determined that it had the authority to review and reject the administration’s conclusions as to whether DACA was legal. 

Noting that many previous presidents (including Eisenhower, Reagan, and H.W. Bush) had provided discretionary immigration benefits to large groups, the Ninth Circuit declared that DACA “was a permissible exercise of executive discretion.” Since the administration had offered essentially no other reason for ending DACA beyond its claim that DACA was illegal, the Ninth Circuit held that the government had improperly ended DACA. 

Importantly, the Ninth Circuit was clear that the administration could have chosen to end DACA as a matter of discretion at any time—but had chosen not to, instead relying on the legal conclusion that it simply had no authority to continue the initiative. It is possible that the administration chose not to use its discretion to end DACA because in doing so it would have been forced to admit it was legal. 

Although judges ruled 3-0 against the government, at least one judge on the Ninth Circuit would have gone even further. In a concurring opinion, Judge Owens declared that the plaintiffs should have been granted an injunction due to the administration’s “unconstitutional racial animus” against DACA holders. Most DACA beneficiaries are Latino, people who have borne the brunt of the president’s attacks on immigrants. 

Now that the Ninth Circuit has ruled, the case is directly on path to the Supreme Court. Until the Supreme Court issues a decision, individuals who have DACA can continue to apply for DACA renewals and the government will continue to process them. If the Supreme Court accepts the case, it is likely that a decision would come at the end of the term in June. Until then, the initiative remains in place.

Última Actualización: Noviembre 19 de 2018
Fuente: www.immigrationimpact.com