Reflections from the Guest Editor
This issue of the Contra Costa Lawyer is devoted to immigration, a subject that is challenging at best and polarizing at worst. It invokes debates on a myriad of questions, including what is happening to due process and the rule of law in this country; whether the situation at our southern border is an immigration crisis, a humanitarian crisis or just political theater; whether there should be such things as amnesty or sanctuary any more, and if so who deserves it; and whether business immigration needs to grow in light of American unemployment.
The starting point for such a dialogue calls for a painful, but necessary understanding of the history of American immigration policy starting with the Chinese Exclusion Act. From there, one would set out on a twisting, turning, convoluted journey of examining the economic, political, geographic and racial policies that determined what it meant to be an American over two centuries ago…what it means to be American today…and just who should be allowed to call themselves American in the future…ending up smack in the middle of the ongoing tension of discerning how to keep the lights on in the welcoming torch of the Statue of Liberty while maintaining meaningful economic and national fairness and security.
The Editorial Board could not have picked better timing for this issue, considering all the recent developments that were breaking news right up to the very week of our print deadlines.
- On August 10, 2019 the New York Times reported that the Department of Justice had just filed a petition asking the Federal Labor Relations Authority to consider decertifying the National Union of Immigration Judges.https://www.nytimes.com/2019/08/10/us/immigration-judges-union-justice-department.html” While this is not the first time this union has been challenged—it appears the Clinton administration did the same thing years ago—in 2019 this appears to be attempt to not only limit the power of immigration judges but to silence them, underscoring the timeliness and urgency of Erika Portillo’s article.
- In July 2019, the Trump administration announced a major change in asylum policy that would require migrants seeking asylum to first apply in any country they were passing through before arriving in the United States. This might appear logical at first glance, until one considers that those countries (El Salvador, Honduras, Guatemala, Nicaragua and Mexico in particular) cannot provides a safe haven to their own citizens, let alone others in flight. On July 24, 2019 U.S. District Court Judge Jon Tigar in San Francisco issued a nationwide preliminary injunction on the ground that the new rule was inconsistent with existing asylum laws—just hours after another federal judge on the East Coast refused to block the rule.https://www.npr.org/2019/07/24/744860482/trump-administrations-new-asylum-rule-clears-first-legal-hurdle” Marco Garzon shares his insights on these events.
- In June 2018, then-Attorney General Jeff Sessions dealt a major blow to victims of domestic violence and certain cases of gang violence by ruling that asylum protections generally would not extend to them. https://www.aclu.org/blog/federal-judge-blocks-trumps-policy-gutting-asylum-people-fleeing-domestic-and-gang-violence” A federal judge struck down part of the ruling six months later, but it has had a devastating impact on women and young girls literally fleeing for their lives from male-dominated, machista cultures with well-documented histories of femicide.https://www.wsj.com/articles/it-is-better-not-to-have-a-daughter-here-latin-americas-violence-turns-against-women-11545237843” Erika Portillo writes about this, as well as the need for greater independence for the immigration court system.
- The ACLU-backed lawsuit, Sierra Club v. Trump, tests the doctrine of separation of powers by raising the question of whether the executive branch of the federal government may divert budgets from one department without the approval of the legislative branch. Liat Romick offers her insights into this issue.
- Decades ago, enlistment in the U.S. military was a path to U.S. citizenship. Now it may not even guarantee a green card.hhttps://www.americanimmigrationcouncil.org/tags/military” Spojmie Nasiri writes about the possible end to the “Parole in Place” program for members of the military and their families.
- Juliana Morgan-Trostle, Equal Justice Works Fellow sponsored by Greenberg Traurig, LLP and Mélody Saint-Saëns, Immigration Regional Counsel, discuss some of the issues, concerns and resources available for immigrant communities in Contra Costa County.
- It’s been a year since Contra Costa County Sheriff David Livingston announced the end of the contract with ICE to house undocumented immigrants at the West County Detention Facility.https://richmondstandard.com/richmond/2018/07/10/contra-costa-sheriff-ends-contract-housing-ice-detainees/” Nienke Schouten shares her experiences representing immigration clients in the aftermath of this decision that came as a shock to many.
And in other news:
- In July 2019, the Department of Homeland Security announced a new policy that would allow ICE agents to implement “expedited removal” procedures to deport undocumented immigrants who are unable to prove they have been in the U.S. for at least two years. This increases the risk of wrongful deportations—even of American citizens—and it further erodes due process by giving more power to ICE officers instead of trained, knowledgeable immigration judges.https://www.americanimmigrationcouncil.org/research/primer-expedited-removal”
- Also in July 2019, the Ninth Circuit Court of Appeals ruled in favor of asylum seekers in Padilla v. ICE, holding that those who seek the protection of asylum in the United States are entitled to receive bond hearings while the case is pending, and that the policy of leaving immigrants indefinitely stranded in detention by denying bond hearings is a violation of due process. Padilla also claims that denial of bond hearings violates the Immigration and Nationality Act and the Administrative Procedures Act. (Note: more than one conservative immigration judge has defied the Ninth Circuit’s previous decisions, holding that they still have “no jurisdiction” over certain immigration bond proceedings. https://www.kshb.com/longform/immigration-judges-defy-a-higher-court”)
- Further, in July 2019 Attorney General William Barr, having certified Matter of L-E-A- to himself, issued a new decision that set aside well-settled law by his holding that fear of persecution on the basis of family membership might not qualify an individual for asylum. http://immigrationimpact.com/2019/07/31/barr-asylum-protections-families/#.XVJOKuhKjIU”
- In June 2019, disputes over the question of whether the upcoming census could lawfully include a question about citizenship led to charges of contempt in Congress. https://www.reuters.com/article/us-usa-trump-congress-census/census-citizenship-question-fight-rages-in-u-s-congress-courts-idUSKCN1TQ16P”
- In 2018, as part of the Department of Justice’s “zero tolerance” policy of criminally prosecuting immigrants who entered the U.S. at the southern border, https://www.justice.gov/opa/pr/attorney-general-announces-zero-tolerance-policy-criminal-illegal-entry” the Trump administration enacted harsher detention policies that separated families at the southern border in an attempt to discourage asylum-seekers from Central America, particularly the well-publicized “caravan” from Honduras. https://www.reuters.com/article/us-usa-immigration-caravan/caravan-of-migrants-in-mexico-starts-moving-towards-u-s-idUSKCN1R50XJ” At least six children have died in ICE custody in six months, more than in the previous decade. https://www.newsweek.com/border-family-separation-child-death-democrats-investigate-1434591” By June 2019, ICE released the names of over 10 people who died while in their custody since April 2018. https://www.ice.gov/death-detainee-report”
The national debate over our immigration policies has stretched friendships, professional relationships, and even family relationships to the breaking point–and sometimes even beyond. It would be impossible to cover every aspect of this issue in just one issue of any magazine. Our goal for the September issue is not to create more divisiveness or animosity, but to invite more dialogue in the legal community by sharing objective information about what is happening with immigration policies, due process and other important constitutional protections in a few key areas, so that we understand not just what may be happening to “those people” today but how the decisions we make—or allow—today might come back to affect our own lives, and the lives of our friends and loved ones, in the future.
Contra Costa County is no stranger to the broad spectrum of issues and perspective in this area of law. I’ve met with detained immigrants at West County Detention Facility, and I never failed to shudder a little when I heard those heavy metal doors clang shut behind me. But I’ve also experienced times of pure elation when Contra Costa County’s probate and family courts granted our young clients’ petitions for custody orders, finding that they are eligible to apply for Special Immigrant Juvenile Status because of parental abuse, abandonment or neglect. This county has, literally, saved more lives than any one of us may ever fully realize, and for me it has been an honor and pleasure to practice law here.
I deeply appreciate the Editorial Board of the CCCBA for their support and encouragement, and am indebted to the contributing writers in this issue: Spojmie Nasiri and Marco Garzon, Section board members; Erika Portillo, Liat Romick, Nienke Schouten, Juliana Morgan-Trostle, Equal Justice Works Fellow and Mélody Saint-Saëns of the Immigration Regional Council for taking time (when they have absolutely none to spare) to contribute to this issue. I also want to acknowledge and thank Flavio Carvalho, current president of the Immigration Section, for his leadership since the Section’s inception. All are passionate advocates, and we seek to bring some measure of light to the realities of our immigration policies in these times.