Sleight of Hand

The immigrant community has been hopeful that President Obama would roll out some sort of executive legalization for about, oh, 7 years now. Meanwhile the Obama administration has been promising bold and progressive measures if Congress doesn’t get its act together on immigration (spoiler alert: they won’t). This seems like a match made in heaven: millions of people who need help, and a man with the power, authority, and the will (allegedly) to do so. 

And so we read articles like this one, and this one, and don’t forget this one over here. Plus these, and those, and some other ones. Did I mention this one, and that? There are articles from 3 hours ago and hours from 1 month ago that tell the exact same story: Obama is super duper serious about doing something on immigration. 

What is he going to do? Well, some say it will be awesome. Others say it will be really awesome. And he’s really serious about it this time. For real. 

Meanwhile, what is the administration actually doing on immigration? Well, there was that time last month when they asked for 2 billion dollars to help expedite the deportation of refugee-seeking children at the border. They’ve opened a make-shift detention center in the middle of nowhere so they can detain women and children while their cases are being expeditiously denied. Due process? Not for these folks. 

So while our immigration system continues to fracture families, detain the innocent, and ship children back to their death, we’ve all been distracted to some degree by the oldest trick in the book, a sleight of hand. 

Innocent Children or Trained Warriors? It Seems So Unclear.

Tamara Scott, an RNC committee woman from Iowa brought up a point that no one has been able to refute and that is that some or many of these children that are presenting themselves on our southern border may, in fact, be trained warriors sent to the United States in order to meet up with some groups in order to overthrow the government of the United States.  Listen here:

http://www.rightwingwatch.org/content/gop-committeewoman-warns-child-migrants-highly-trained-warriors-who-will-rise-against-us-ame

She makes this point, which, again, no one has been able to refute, “But we know back in our revolution, we had 12-year-olds fighting in our revolution. And for many of these kids, depending on where they’re coming from, they could be coming from other countries and be highly trained as warriors who will meet up with their group here and actually rise up against us as Americans.”

No one has yet proven that these seemingly innocent children are not in fact highly trained warriors coming here to destroy us and since we have not been able to disprove that they are not highly trained warriors on a mission to destroy us, it is probably a super safe idea that we just expel them from the US.  Her theory is totally plausible.  I submit to you Princess Mononoke.  A young warrior princess that looks like this:

images

 

She’s only about 12 or something and she’s already a trained warrior and eats really bloody things and seems unfazed by that giant wolf behind her. How can it be proven that the children at the border are not just like her?  Answer me that.

There’s Something Called Due Process….I Swear….

Often times we bring up the Constitution and due process when speaking about removal defense in immigration law.  So many of those times they are simply a punch line to a joke or the set up for a punch line.  Due process is an easy concept.  It is found in the Constitution if anyone is interested they can google it and find it there.  The basic concept is that everyone is given a fair shot.  One side is not given an advantage over the other side.  In a criminal context the prosecutor is not allowed to hide evidence from the defense and the police are not allowed to plant evidence on a suspect.  Sure, it can get more complicated from there and what is fair and what is unfair are grounds for contentious debates in our courts, but the basic concept that everyone should be given a fair shot and that neither side should be given an advantage over the other are two basic concepts that one would be hard pressed to find someone to take issue with…..until you get to immigration, especially in removal defense.

There is a concept of due process in removal hearings (those hearings where an immigration judge decides if someone should be allowed to stay here in the US or they should be deported to their country) but it’s…well…it’s kind of weird.  People who are facing removal are allowed the right to counsel at their own expense.  Which means the government will not provide one for them if they cannot afford to hire their own attorney.  This right to an attorney in removal proceedings at no expense to the government is a right that is put in by statute and could presumably be taken away by statute.  This set up  leaves the impoverished and vulnerable alone and unrepresented in a complex system of laws with the consequences to them being of the utmost gravity.

Another stalwart of due process is foreign to removal proceedings and that is the concept of hear say evidence.  Hear say evidence is best described as a third party making a statement where that person is not available to be questioned on it.  Ok…that might be the crappiest definition ever given, but that’s the basic concept.  In a criminal trial a police report would never be submitted into evidence and reports by the police would never be submitted unless the police officer was there to be questioned on it.  In removal hearings uncorroborated police reports are often introduced as a fact document and many immigration judges take the information written on them as absolute truth.  If you ever want to have fun in immigration court, object to them as hearsay, inherently unreliable and violative of your client’s due process rights.  See if the judge and the government attorney can keep from laughing.  If they do you know they will be laughing at you when you leave.

This brings us to another point and that is the coziness many judges have with the government attorneys.  More often than not they used to be one of them and many make no effort to even disguise their biases toward their positions.  They will often conference about cases without the other side present, which is called ex parte communications.  This is such a frequent practice that one almost takes it as normal. The recent influx of refugees on our southern border has seen judges under orders to speed up the cases for these refugees.  In which other court system in the US would one side be able to dictate the conduct of their judges in such a manner.  Even the judges have noticed and began to speak up.

http://www.nbcnews.com/news/latino/judges-union-immigration-courts-alternate-legal-universe-n190216

Judge Slavin from Miami is one of my favorite judges and she is quoted in the story above.  She is fair, compassionate and an actual believe in due process for those who appear before her.  She is in the minority and that is sad.

So, why is there such a blatant lack of due process you ask.  It’s simple.  Physical detention in a prison and forced removal from your wife and children is not criminal punishment.  It’s a civil process and not punishment at all.  They are not in prison or jail, they are in detention.  They are not being criminally punished they are being civilly punished?  Yea…I don’t know.  The tide may be turning here as more and more courts are recognizing more and more due process rights for immigrants in removal proceedings, but it is a drawn out fight each time.  Why such a simple concept that is the bedrock of our judicial system has to be such a hard thing to achieve is beyond me.  Perhaps someone can explain it to me.

 

My Cantaloupe Obsession

I have to admit an obsession and that obsession is making fun of Steve King and his now famous cantaloupe quote.  For all of you who are puzzled about what I am talking about, please take a minute: 

http://takingnote.blogs.nytimes.com/2013/07/24/no-comment-necessary-drug-mules/

There are kids that were brought into this country by their parents unknowing they were breaking the law. And they will say to me and others who defend the rule of law, ‘We have to do something about the 11 million. Some of them are valedictorians.’ Well, my answer to that is…it’s true in some cases, but they aren’t all valedictorians. They weren’t all brought in by their parents. For every one who’s a valedictorian, there’s another 100 out there who weigh 130 pounds and they’ve got calves the size of cantaloupes because they’re hauling 75 pounds of marijuana across the desert. Those people would be legalized with the same act.

Is the an absolutely perfect stupid quote.  It really has everything.  It has someone who holds an important office stating it in a very serious tone.  Congressman King is not speaking off of the cuff, he is saying this absolutely absurd thing in a calm, composed and rehearsed manner.  This is something he deeply believes, which makes it all the more precious.

In addition to a sincere thought by someone in power (not some whacked out Hollywood star of Sarah Palin), it also contains blatant falsehoods and absurdities.  He doesn’t offer up any support for his 100-1 ratio of valedictorians to drug smugglers, but why would he?  It’s an absurd statement only because there is no way he could come up with such a ratio other than to simply invent it.  Further, he is seeming to either say that these kids are continuously hauling 75 pounds of marijuana across the desert (note: 75 pounds is really heavy) and presumably not getting caught by the Border Patrol because of their super sized calves or they did, at some point haul 75 pounds of marijuana across the desert and that is such tremendous exercise that ones calves are permanently transformed into cantaloupe sized masses of muscles forever.  Either one of those thoughts is absurdly stupid and worthy of continued praise.

The coup de grace, so to speak, is the use of a funny word and that word is cantaloupe.  Cantaloupe is just a funny sounding word and tops off the absurdity and stupidity of his remarks.  There have been a lot of stupid and ignorant remarks made surrounding the immigration debate and there is much more to come, but Steve King’s cantaloupe calves remarks are the clear winner at this point in time.  If anyone else knows of some quote or statement that is more insulting and absurd, let me know.   

CHAPTER 25

To say the The Grapes of Wrath by John Steinbeck inspired me to be an immigration lawyer may be a little too simplistic. It seems that my life has been guiding me to this profession since I was a teenager.

 When I was 15 years old I spent a summer picking strawberries on a nearby farm by my house in suburban Syracuse, NY. My friends and I would get up before five and ride our bikes to the farmer’s house and he would drive us the rest of the way to the farm. There we would work from about 6 am until 1 pm picking strawberries and having random strawberry wars with the Mexican pickers on the other side of the field. I assumed they were Mexican, but I honestly don’t know where they were from. We didn’t have much interaction with them, other than a periodic outbreak of strawberry throwing, but they seemed like decent dudes.

 I probably only did the job for a few weeks. We made about $50 a day and were so happy with that money. I remember going home and taking a shower and the water hitting the small of my back and me jumping from the pain of the water hitting my sunburn. It did not occur to me than the pain those migrants had to endure from working those fields until dark, day after day for that short season and then having to move onto another crop. My mother was at home to make me lunch and dinner and I was able to see my father every night when he came home from work. I felt like a grown up because I was doing hard labor and never thought of those workers having to go to a ramshackled hut at the end of the day where their moms and dads were not. Where their wives and children were not. This was not in my consciousness at that point in time, but the experience of working a hot and dry field, with my hands, hunched over with my face close to the dirt, smelling the sweet strawberries mixed with the slightly pungent smell of the earth was embedded into my mind and my soul.

It would not be later in my life that I would put these sensations together with the sensations these men must have been feeling. Their feelings of loneliness, despair and perhaps a hit of anger and resentment at the suburban white kids coming to pick at some of the ripest and best strawberries in the field, stealing them of an opportunity to get them and make more money to send home in order for their children to be able to buy their school uniforms or to fix their family’s roof.

At Siena College my advisor pushed me to go to law school and I thought he was crazy. I needed to save the world first and went to Angola and then Ecuador and finally South Korea to work as an English teacher. Most of my time there was spent working illegally on a tourist visa, looking over my shoulder as I entered and exited apartment complexes to teach my private classes. Here I met my wife who was in Seoul without proper documentation from Peru working in factories and restaurants in order to send money back to her family. Through her I met many undocumented immigrants from mainly Central and South America who were horribly exploited at their jobs in South Korea with seemingly no recourse. They were workers in factories who were being sexually harassed and worse. They were stone workers, moving tons of stone a day not getting paid for months of work. They were scared humans far away from their homes too scared to complain and too scared to go home a failure for not providing as much as they felt they should.

When I returned to the United States with my new wife I explored being a teacher, but quite frankly, I was a horrible teacher. I felt I needed a profession were I could help the very types of people I had met in South Korea that were being so exploited and decided to go to law school. While at law school I worked at Friends of Farmworkers, an organization that advocated for the rights of farmworkers, specifically the mushroom workers in Pennsylvania. This work was inspirational.

I met, on a personal level, those same types of workers I had engaged in strawberry throwing wars with so many summers in the past. I began to know and understand their pain and the hardship they were going through living in working in a foreign land, in often hostile environments. I learned that they would have much rather been working and living in their home countries with their families but felt they had no choice but to migrate here to the US in order to best provide for the ones they so loved and longed for.

This was my life and then I read Chapter 25 of The Grapes of Wrath.

“There is a crime here that goes beyond denunciation. There is a sorrow here that weeping cannot symbolize. There is a failure here that topples all our success. The fertile earth, the straight tree rows, the sturdy trunks, and the ripe fruit. And the children dying of pellagra must die because a profit cannot be taken from an orange. And coroners must fill in the certificates- dies of malnutrition-because the food must rot, must be forced to rot. 

The people come with nets to fish for potatoes in the river, and the guards hold them back; they come in rattling cars to get the dumped oranges, but the kerosene is sprayed. And they stand still and watch the potatoes float by, listen to he screaming pigs being killed in a ditch and covered with quicklime, watch the mountains of oranges slop down to a putrefying ooze; and in the eyes of the people there is failure; and in the eyes of the hungry there is a growing wrath. In the souls of the people the grapes of wrath are filling and growing heavy, growing heavy for the vintage.”

The whole book was somewhat transformational for me, but this chapter sealed my fate and I knew that I must devote my life to working for migrants like the Joads, who were being crushed by a capitalistic machine that did not care about them and did not care about us. I was seeing the failure and the same sorrow in the eyes of those farmworkers as were so evident in the Joads and their fellow migrants.

 When I need inspiration I read this chapter and also a passage from chapter 22:

“And the companies, the banks worked at their own doom and they did not know it. The fields were fruitful, and starving men moved on the roads. The granaries were full and the children of the poor grew up rachitic, and the pustules of pellagra swelled on their sides. The great companies did not know that the line between hunger and anger is a thin line. And money that might have gone to wages went for gas, for guns, for agents and spies, for blacklists, for drilling. On the highways the people moved like ants and searched for work, for food. And the anger began to ferment.”

I often work out of anger and I find my anger, properly channeled has led to positive results for my clients. I often get despondent because I feel somehow I am failing to live up to my rage and my calling. I so often want to flip over the table in the court room and yell that the system is simply watching the potatoes float by and the pigs are being covered with quicklime while good people are left to starve. I often feel guilty after polite and congenial conversations with government attorneys trying to disrupt and deport my clients away from their families. I want to be like Tom Joad and hit them with a bat and scream for the rest of my colleagues to do the same.

In short and in long, that is why I became a migration attorney. My clients are migrants, as are all of us. I am that boy who worked in that strawberry field, trying to make things better for my co-workers and my fellow migrants on this beautiful planet.

Sunday Night Reading

Sundays have always been a time for relaxation and reflection for me. Yes, there’s the looming shadow ofGrapes next week and all the responsibility it will bring, but there’s a stillness and sanctity in the calm before the storm. 

I’ve been challenged by Matthew to read The Grapes of Wrath, and so I’m sitting down to do just that. For Matthew, this was the book that inspired him to practice immigration law, but more importantly to fight for the rights of the downtrodden. So I’m curious, what things, be they books, movies, professors, friends, or just personal experiences, have inspired you the most? Why do you do what you do, whatever that may be? 

Friday, August 22, 2014

In this our very first episode of Coast to Coast (which you can listen to by clicking here or streaming below) we discuss the victimization and “otherization” of immigrant and minority communities, how this phenomenon is playing out in Furgeson, and why Steve King is still a major doofus.

Our Golden Star this week goes to Immigration Lawyer extraordinaire Charles Roth for his outstanding advocacy in Avila-Ramirez v. Holder. Kudos, Mr. Roth!

This week’s Golden Cantaloupe was a toss up between Steve King and Rick Perry. Chime in and let us know who you think should win.

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