HAPPY CONSTITUTION DAY!!!

Wahooooo!!! September 17th is Constitution Day and that is a day of never ending irony for those of us who practice immigration law.  Did you know that ICE can illegally stop, search and arrest you as long as what they are doing is not an egregious violation of the constitution?  Yep.  Happy Constitution Day!!

The very point of excluding illegally obtained evidence is to deter law enforcement from using illegal and unconstitiutional tactics.  Well, Sandra Day O’Conner had some deep thoughts on this issue in INS v. LOPEZ-MENDOZA, 468 U.S. 1032 (1984).   In Lopez-Mendoza she wrote, justifying not fully expanding the exclusionary rule to deportation proceedings, the following:

“Every INS agent knows, therefore, that it is highly unlikely that any particular arrestee will end up challenging the lawfulness of his arrest in a formal deportation proceeding.”

Yep, INS agents (now ICE) know that the vast majority of those whose rights they violate won’t complain.  Now, that is solid reasoning.  In her opinion she basically rules that it’s pointless to challenge an unlawful arrest and validates her stance by pointing out that people generally do not challenge unlawful arrests, which makes the unlawfulness apparently not that big of a deal.  I mean, if no one complains then nothing unlawful happened, right?

She then offered this nugget:

“The exclusionary rule provides no remedy for completed wrongs.” Right…other than excluding the illegally obtained evidence, it offers no remedy.

She wasn’t done in the value she placed on our Constitution:

“Other factors also weigh against applying the exclusionary rule in deportation proceedings. The INS currently operates a deliberately simple deportation hearing system, streamlined to permit the quick resolution of very large numbers of deportation actions, and it is against this backdrop that the costs of the exclusionary rule must be assessed.”

Oh…now, we are getting there.  The INS had shit to do and all this talk about the Constitution was slowing stuff down.  It’s funny that our criminal courts, which handle way more cases on a daily basis can figure out how to incorporate that darn Constitution into proceedings, but the immigration courts can’t. She wanted this whole deportation mill to move quickly and simply.  Understood.

She ends with as blatant a lie as one can find in a Supreme Court decision:

“We do not condone any violations of the Fourth Amendment that may have occurred in the arrests of respondents Lopez-Mendoza or Sandoval-Sanchez.”

Well, spoiler alert, nothing was excluded and the Fourth Amendment violations were condoned.  She absolutely condoned the violations and did so because they were not “egregious”.  So, yes, ICE can violate the Fourth Amendment as long as they do not do so egregiously….so Happy Constitution Day!!!  Go celebrate non-egregiously!

Manufacturing the News

For those who listened to last week’s Coast to Coast (all tens of you), you’ll remember that the Fox and Friends crew were nominated for the Golden Cantaloupe for their wild speculation that ISIS was hanging out in Ciudad Juarez waiting to attack the United States. You can listen to that sound here. Our friends over at Fox were citing this Judicial Watch blog post, which cites no real facts or actual sources.

Cut to today when Elisabeth Hasselbeck had on Texas Sheriff Gary Painter. Take a listen:

[youtube https://www.youtube.com/watch?v=g6iik2p6ZrM]

When Ms. Hasselbeck asks what the Sheriff has been hearing, he essentially repeats the reporting Fox has been doing based on the flimsy Judicial Watch blog. For those following along at home, manufacturing news looks a little something like this:

1. Find a person, blog, letter, or article that supports your agenda (in this case, the Judicial Watch blog).

2. Instead of vetting the article, researching independently, or doing any work whatsoever, report the source as fact.

3. Have people on your show to echo back your previous reporting.

Well look at that, it’s news!

Happy Anniversary VAWA!

The Violence Against Women Act will be 20 years old tomorrow, September 13th.  This anniversary comes on the heels of the explosion over the Ray Rice video where we see exactly what we knew had happened all along and that is Ray Rice punching his then fiance and knocking her unconscious.  To many the mere report that Ray Rice had punched and knocked his fiance unconscious was enough to hold him in contempt and feel that he should face a much greater punishment than the two game suspension he had initially received from the NFL, but there were many others that needed to witness the brutality before coming to such a conclusion.

Unfortunately this is a common reaction or non-reaction to domestic violence.  When we hear about it in the abstract we are disapproving and shake our head in disgust, but we go on with our business.  When we are forced to confront it in a much more personal manner, perhaps through a relative, friend or in my case, clients, it becomes much more disturbing.  People who have dealt with domestic violence survivors know all too well that the reaction by Janay Palmer, she married him shortly after the incident, is all too common.  Survivors often stay with their abusers despite the physical punishment and humiliation they are forced to endure.

I have had many clients who were survivors of domestic abuse tell me that had to stay with their husbands or boyfriends because they relied upon them for their and their children’s economic support. They felt trapped and believed that if they left they could not provide for themselves or their children. They would also express guilt and culpability for the abuse, much like we heard from Janay when she apologized for her part in the incident that night in Atlantic City.

All survivors of abuse face so many hard obstacles to overcome, but undocumented immigrants face many more. It is why VAWA is so important and such a wonderful piece of legislation.  It has freed so many immigrant women (and men) from the clutches of domestic violence.  I love being able to tell clients who are survivors to let me worry about their immigration status and everything will be ok and that all they need to concentrate on is being safe and growing stronger.

All of this also coincides with a great victory by Attorney Roy Petty (listen to our 3rd podcast) from Arkansas at the BIA where they officially recognized abused married women from Guatemala who cannot receive protection from their spouse as a particular social group and eligible for asylum under our laws.  Immigration attorneys have been winning these type of battered women cases for some time now, but the official recognition is wonderful.

There is a lot wrong about our immigration system, but the movements it has made in protection survivors of domestic violence is not one of them.  So, tomorrow I will raise a glass to VAWA and to all the survivors out there.

Coast to Coast, Episode 4

Loyal Listeners, we’re happy to bring you Episode IV of Coast to Coast.

This week we’re extremely proud to have Jorge Baron from the Northwest Immigrant Rights Project on the show. He’ll be discussing the ongoing lawsuit to provide mandatory legal representation to minors in removal proceedings. It’s a fascinating case, and one worthy of your attention.

We’ll also be discussing our Golden Cantaloupe nominees. Spoiler alert: all of this week’s sound comes from Fox News. Big surprise.

You can find this week’s episode right HERE. You can also subscribe on iTunes. So do it.

BOOM GOES THE DYNAMITE!!

Gotta hand it to Obama.  He’s one helluva predictor.  At the beginning of the summer he said this about taking executive action on immigration:

We know the opponents of reform are going to do everything they can to prevent that,” he said. “They’ll try to stoke fear and create division. They’ll try to play politics with an issue that the vast majority of Americans want addressed. And if they succeed, we will lose this chance to finally fix an immigration system that is badly broken.

Obama was warning us against opponents of reform stoking fear, creating division and playing politics with immigration reform.  He was right.  Now long after this we had a “crisis” on our southern border with refugees from Central America and those opponents sought to stoke fears.  One opponent of immigration reform stated:

“Our message absolutely is don’t send your children unaccompanied, on trains or through a bunch of smugglers. We don’t even know how many of these kids don’t make it, and may have been waylaid into sex trafficking or killed because they fell off a train. Do not send your children to the borders. If they do make it, they’ll get sent back. More importantly, they may not make it.”

http://www.latimes.com/nation/la-na-obama-immigrants-20140628-story.html

That’s scary stuff.  My fears got stoked big time.  Then, just as Obama predicted, an opponent of immigration reform sought to create divisions by saying this:

“What we have in mind is treating unaccompanied minor children from the three Central American countries as being from contiguous countries, i.e., Mexico. We offer a child the ability to accept a voluntary return, and a lot of them actually do accept a voluntary return.” http://www.nationaljournal.com/congress/obama-s-plan-to-deal-with-unaccompanied-minors-is-aggravating-immigration-advocates-20140711

Well, division created as the article points out with this statement,  “The American Immigration Lawyers Association vehemently disagrees.” 

Now, Obama was two for two here.  Fear was stoked and division created, but could he go three for three…a hat trick or a turkey, depending on your sport of choice.  Welp, here it is:

“The truth of the matter is that the politics did shift midsummer because of that problem. I want to spend some time, even as we’re getting all our ducks in a row for the executive action … to make sure that the public understands why we’re doing this.”

http://www.foxnews.com/politics/2014/09/08/obama-blames-border-crisis-for-immigration-inaction-after-blasting-gop-for/

BOOM GOES THE DYNAMITE!!

He nailed it.  Fears stoked.  Divisions created and politics being played.  Now, of course the first and third quotes are from Obama and the second one is from DHS Secretary Jeh Johnson, but does it really matter.  Obama predicted opponents of immigration reform would stoke fears, create divisions and play politics and he was right.

Coast to Coast, Episode 3

Hey folks, be sure to check out this week’s episode of Coast to Coast by clicking here. Do us a solid and subscribe on iTunes, leave a (glowing) review, and tell your friends. 

This week’s show is really special. You’ll get to hear from immigration attorney extraordinaire Roy Petty from Rogers, Arkansas. He’s here to talk about his recent success in Matter of ARCG. Read the case, listen to the podcast. Enjoy life. 

We’re also giving out this week’s Golden Cantaloupe. Should Republican’s who support immigration reform be “shot, hung, and thrown in a river,” or should we lay awake at night worried about Guatemalan ninja kids crossing the border to “join their groups” in the United States? YOU DECIDE! 

Ring the Bell, Back to School…

Standing in line in Staples (not a corporate plug yet…but we are open to them…call us) buying a few last minute things for my daughter’s first day of third grade I could not help but notice a bunch of Mexicanny looking families in the store.  (so, bunch of latinos in the store, not sure if Mexican or from Central America or somewhere else…I use Mexicanny because it sounds kind of funny.  Just so we’re straight, I love Mexicans. They are strong people.  They are good people.  One of them is a Bush. https://www.youtube.com/watch?v=Ixi9_cciy8w#t=33  skip to the 1:30 mark) Standing in front of my was a Mexicanny looking father and his daughter, probably going into Kindergarten or first grade, waiting to pay for some school supplies.

She looked so excited to be starting school and thumbed through her folders to make sure she had the ones she wanted.  He looked so happy and his daughter was just thrilled to be at the store with him and to be going to school the next day.  I started to wonder about his immigration status, because this is a disease us immigration attorneys have which we can’t control.  I wonder if he is documented or living in fear of being pulled over for some trumped up charge and deported.  I look at the other families and wonder the same thing.  I wonder if their children would be excited to be going back to school in Mexico or if they would be going  to school at all.  I saw a family with a daughter who seemed to be in her early teens.  This is the time that most of my clients had dropped out of school either due to lack of funds to pay for school uniforms, books and the other associated costs or just because they knew that there was no future with or without school.  They would begin working to provide for their family or take their journey to the United States.

I wondered how that little girl in front of me would feel if her daddy had been deported over the summer.  Would she still be excited about school? Who would have taken her to the store? Would her mother have had the money to buy her the nice pencil case her daddy was buying her.  Us immigration attorneys often get caught up in watching the news for word on possible immigration reform or some type of action by Obama.  We naturally think of the business that we could derive from such actions, but I believe the vast majority of us want immigration reform so that little girl would never have to know the pain of her daddy being deported.  So, those other kids could enjoy going to school and know that if they study and do well in school they will have an opportunity to succeed.

The school bell has rung and the kids have gone back with hopes, dreams and aspirations to do remarkable things.  I only hope that this country can help fulfill those hopes, makes those dreams come alive and reap the benefit of these children’s achievements.