Archive | February, 2014

Strong Presidents are Great Presidents

17 Feb

Stop deports

On this President’s Day, we wish to add a historical perspective to the robust exercise of executive authority.  The President routinely tells audiences that he does not have the power to act unilaterally on immigration reform.  Frustration and anger have mounted as the toll from deportations rises, and the lost opportunities due to the lack of immigration reform are compiled.  The President’s claim of impotency is in direct conflict with how the right wing of the GOP (is there another wing?) sees the President.  Recently, the House Judiciary Committee held a charade of  hearing on the President’s duty to see that the laws be faithfully executed.  The theory: the President has abdicated his constitutional duty to faithfully execute the law by granting deferred action to childhood arrivals.  Apparently, the theory goes that the President has a duty to remove all deportable individuals and by granting deferred action to a sub-group of the deportable individuals, the President has failed to do his duty.  So, who is right?  Is the President a dictator who ignores the laws?  Or is he an executive with a limited vision of his authority, doomed to mediocrity?  That answer remains to be seen, in our opinion.  It will depend on whether the President follows the example of those presidents who have monuments on the National Mall and across the capital or those who are reviled, ignored and forgotten.  For a president as historic as Obama, we hope that he embraces a more robust view of Presidential power.

The earliest President who truly revolutionized the role of the Chief Executive was Andrew Jackson.  When Jackson took office, he viewed himself as the only national andrew jackson kingembodiment of the people’s will.  He scandalized the country by making arguments to the people in support of his policy decisions.  In addition, he broke tradition by vetoing pieces of legislation that he disagreed with.  Previously, Presidents would only veto legislation that they thought unconstitutional.  Jackson was the first President to veto legislation for the plain reason that he was opposed to it.  In addition, when South Carolina asserted that it could nullify a federal law that it did not like, Jackson stood for the not-yet-clear proposition that federal law was supreme and a state could not pick and choose which federal laws it wished to follow.  Jackson’s position on nullification provided historical precedent when another President was faced with rebellious southerners.

Before taking office, Abraham Lincoln was confronted with the “secession” of South Carolina and several other states.  Lincoln refused to accept that a state could secede and decided that his principal obligation was to preserve the Union.  Abraham_Lincoln_head_on_shoulders_needlepointWhen Lincoln called up 75,000 troops in the wake of the Southern attack on Fort Sumter, several other states, including Virginia, seceded. Lincoln arrested secessionist deputies in Maryland and advocated for a strenuous war against the rebellious states.  Lincoln exerted his powers as Commander-in-Chief to free the slaves in “territories in rebellion against U.S. authority” in the Emancipation Proclamation.  Just to be clear: Lincoln dissolved certain “property” rights in nearly half the country.

Franklin Roosevelt determined that the circumstances of the Great Depression required an energetic response by the federal government.  However, he found that the Supreme Court proved to be a formidable obstacle.  After the Supreme Court issued a series of opinions striking down New Deal federal legislation on matters previously considered solely the domain of the state as well as progressive state legislation, such as maximum hours and minimum wage laws, Roosevelt came up with the preposterous idea of adding additional justices to the Supreme Court.  After all, where is it written in the Constitution that there need to be 9 justices?  Roosevelt threatened to add additional justices– to pack the court— to get his agenda past the Court.  The crisis was averted when Justice Owen Roberts, a reliable Supreme Court vote against the New Deal agenda, changed his opinion and joined a group of justices supportive fdr2of the President giving Roosevelt a 5-4 win which upheld a Washington state minimum wage law.  Roberts’ switch and the retirement of Justice Willis Van Devanter provided Roosevelt with a solid majority to uphold the New Deal legislation.  The New Deal legislation significantly expanded federal authority over tremendous swaths of economic and commercial activity.

Each of these Presidents was derided during their terms as being despots, dictators, and wannabe kings.  A faction of the country called them tyrants bent on reshaping the country in some perverse way.  Yet today, each is honored with a place on our National Mall (True, Jackson is not on the mall- but his equestrian statute is right in front of the White House for the President to see every day.)  Each of these Presidents is understood as being an essential part of this country’s progress and their allegedly improper power grabs have been revalidated generation after generation.  This is not to say that they receive universal acclaim; there are plenty of holdouts who are anti-Lincoln for the Civil War and the modern day GOP and its court appointees are determined to undo the legacy of the New Deal.  Yet, when historians rank the best Presidents, all three will make that list.  They are on the list because they responded with energy to the crises facing the country.  In doing so, they expanded the power of the Presidency (without creating tyranny!) and pushed the country forward.

roosevelt-memorial-washington-dc

Contrast Lincoln with his predecessor James Buchanan.  Believing he could do nothing about secession or slavery, Buchanan allowed guerrilla warfare to rage in Kansas and Missouri through much of his term.  Buchanan felt he had no power to stop secession.  In other words, that the President of the United States was powerless to stop the dissolution of the union.  Little wonder that there is no monument to Buchanan and he routinely fills out the bottom slot when historians rank the Presidents.

All this is to say that history reveres Presidents who have a dynamic view of their power.  It has now become clear that Congress has no intention of taking up any meaningful immigration reform. This is despite an acknowledged crisis.  Lincoln-Memorial-4Families are being torn apart, the administration is closing in on 2 million deportations, businesses can not get the workers they need, and national security and public safety are compromised due to the failure of Congress to act on immigration reform.  It is time for the President to be worthy of the slurs hurled at him by the know-nothings in Congress.  It is time for the President to make a bold claim of Presidential authority and place a hold on all bust the most serious removals.  History will reward him if he does.  Lincoln or Buchanan?  The choice is the President’s.Andrew_Jackson_(2873018869)

New Common Sense Rules on Material Support for Terrorism Bars

17 Feb

Syria

We have written on this page before about the absurd over-inclusiveness of the ground of inadmissibility for “material support” for terrorism.  This net barred Nelson Mandela from entering the U.S. without a waiver until 2008 and still bars 3000 refugees from the Iranian regime whose lives are at risk in Camp Liberty in Iraq from being resettled in the U.S. as promised by the U.S. government.  Moreover, hundreds, if not thousands, of others have had their applications for asylum, adjustment of status, or refugee admission placed on hold for allegations that they provided material support for terrorism by engaging in minor activities, such as distributing political leaflets, cooking food or distributing water, which the government has deemed to constitute material support of terrorism.  We are happy to report some good news on this front.  On February 5, 2014, the Departments of State and Homeland Security, issued new rules allowing the government to exempt those whose support is deemed to be “insignificant” or unintentional This decision should free the applications of hundreds of individuals in the U.S. who are awaiting the adjudication of green cards after having already won asylum in the U.S.  In addition, it should open the door to refugees from the war in Syria languishing in unsafe and unsanitary refugee camps.

U.S. law makes an individual inadmissible to the U.S. if they have provided “material support” to a terrorist organization.  The terms material support has been interpreted very broadly.  An illustration of the absurd lengths the bar extended to comes from a U.S. Citizenship & Immigration Service public forum.  A representative of CIS explained the “doing laundry” nature of the bar.  Let’s imagine that one person in a home has ties to a terrorist organization and another person in the household does the laundry for the household.  That person has provided material support for terrorism because she (let’s be real, here) has removed the terrorist’s burden of doing his laundry freeing him to do more terrorist things.  People have been found inadmissible for providing food, water, shelter to terrorists.  Although there is a duress exemption to the bar, the standard is high and the facts are rarely uncovered in an adjudication.

The new rules allow DHS to waive inadmissibility if DHS concludes that the individual applicant “has not provided more than an insignificant amount of material support to a terrorist organization.”  To exempt an individual, DHS must find the following that the applicant:

(a) Is seeking a benefit or protection under the INA and has been determined to be otherwise eligible for the benefit or protection;

(b) has undergone and passed all relevant background and security checks;

(c) has fully disclosed, in all relevant applications and/or interviews with U.S. government representatives and agents, the nature and circumstances of any material support provided and any other activity or association, as well as all contact, with a terrorist organization and its members;

(d) has not provided more than an insignificant amount of material support to a terrorist organization

(e) (1) has not provided the material support with any intent of furthering the terrorist or violent activities of the individual or organization; (2) has not provided material support that the alien knew or reasonably should have known could directly be used to engage in terrorist or violent activity; and (3) has not provided material support to any individual who the alien knew or reasonably should have known had committed or planned to commit a terrorist activity;

(f) has not provided material support to terrorist activities that he or she knew or reasonably should have known targeted noncombatant persons, U.S. citizens, or U.S. interests;

(g) has not provided material support that the alien knew or reasonably should have known involved providing weapons, ammunition, explosives, or components thereof, or the transportation or concealment of such items;

(h) has not provided material support in the form of military-type training;

(i) has not engaged in any other terrorist activity;

(j) poses no danger to the safety and security of the United States; and

(k) warrants an exemption from the relevant inadmissibility provision in the totality of the circumstances.

As the standards in the regulation make it clear, DHS must still conduct an extensive background check, determine that the individual does not pose a threat to the safety and security of the U.S. and also determine that the assistance provided to a terrorist organization be de minimis.  The new DHS rule recognizes that many immigrants come from war zones where failure to provide a drink of water or where failure to show solidarity with certain armed groups can be risking one’s life.

DHS also published a rule that is identical to the one above, but instead of insignificant support, the rule exempts those who provided support but did so unknowingly.  DHS exempts those who meet the criteria above and an applicant who:

(d) Has not provided the material support with any intent or desire to assist any terrorist organization or terrorist activity;

(e) Has not provided material support (1) that the alien knew or reasonably should have known could directly be used to engage in terrorist or violent activity or (2) to any individual who the alien knew or reasonably should have known had committed or planned to commit a terrorist activity on behalf of a designated terrorist organization, as described in section 212(a)(3)(B)(vi)(I) or (II) of the INA, 8 U.S.C. 1182(a)(3)(B)(vi)(I) or (II);

This should assist the many people who have provided support to organizations that they believed to be charitable or humanitarian organizations only to find out later that their funds were used for terrorist acts.  Individuals will not be exempted if they should have reasonably known that their funds and  efforts would be supporting terrorism.

Predictably, many have used these common sense rules to accuse the administration of aiding terrorists.  This is pure demagoguery.  The administration has pushed the “war on terror” to new limits with the aggressive use of drones and targeted killings.  Like DACA, the new rules allow the government to separate the priorities from those who present no threat to the security of the U.S.  Yet, the anti-immigrant crowd asserts that the administration is being easy on terrorists and letting them into the U.S.  The fact is that many of these people are here.  They are working and living among us with no instances of terrorist acts.  For several years the DHS has had these cases on hold and people have lived here in administrative limbo.  A U.S. District Court in Virginia just last week rejected the government’s argument that it could keep a case in limbo for over fourteen years based upon an individual’s support for the Mujahedin-e-Khalk, an Iranian resistance group. 

The new rules should put an end to administrative limbo for thousands of individuals who, for fear of their lives, did little more than provide food or water or distribute political leaflets for groups that are today deemed to be “terrorists.”  This is a very welcome development.

Coke’s Beautiful Ad

3 Feb

 

Coca-Cola had a beautiful advertisement during the Super Bowl.  The ad featured America the Beautiful sung in a variety of languages by Americans of all different ethnicities.  It is easy to be jaded and cynical in that this was an attempt to sell one of the more unhealthy products we have created.  However, in the current political climate and the debates raging on immigration, identity, diversity and multiculturalism, the Coke ad showed that one of the most successful companies on the planet has cast its lot with a multicultural and inclusive America.  Of course, it made the decision to produce the ad based upon demographics, market research and a bottom line analysis and not due to adherence to a great moral principle.  But honestly, who cares?  Purity tests are for Stalin.  Coke’s ad represented a vision of America that is not only accurate but also beautiful in its kaleidoscopic inclusivity.

Lots of words have been written about the backlash against Coke for airing the add.  We will not waste our time on these modern-day know-nothings.  They are destined for the dustbin of history and we hope that by failing to give them more attention, we will only accelerate that process.

What the Coke ad did for me was remind me of a talk I have given to second graders at Lafayette Elementary School in DC twice in the past three years and I will certainly do it again when my youngest reaches that grade.  The second graders study immigration and I get to spend a morning with the seven year olds and talk about immigration with them.  It is always fascinating and hilarious.  But what is so amazing is how seven year olds simply get it.  They understand why people immigrate.  Even if they do not understand the complexities, they understand that people have come to America because they dream of a better life.  The concept is entirely natural to them.

Mr. Kings class

I always start my discussion with the second graders by explaining that America is an idea.  Unlike, for example, being French, a person is not an American because her mother, her mother’s mother, her great grandmother and so on were all born here.  A person is American because she and her family believed in the ideals of the American experiment, ideals we have not always held up, fought wars to establish and keep struggling to realize.  I explain to them that their parents or grandparents or great-grandparents came to this country so that one day they could attend Lafayette Elementary, so that they would be raised believing that they can do anything.  So railsplitter_i52428_450px obama-childthat their lot in life would not be pre-determined by the circumstances of their births.  This may seem like high-falutin’ stuff for second graders, but they understand that America is not a land of kings and czars, but a land where an unschooled frontier lawyer could become the greatest president this country has ever seen and that a mixed race son of an immigrant could be the first black President.

After discussing that for a while, we turn the talk to tacos.  The kids always understand that the food they love comes from somewhere else and they are always grateful for the presence of these cuisines that they have come to love.  Growing up, I thought all food was Italian (it was Long Island), but these kids are surrounded by Ethiopian, Chinese, Japanese, Lebanese, Central American and African cuisine.  They are bearers of remarkably diverse culinary passports.

So, the Coke ad reminded me of these kids who understand and value immigration and think that their world is a more interesting and better place for having a broad spectrum of ethnicities at their feet.  They are growing up in an age of incredible richness and texture, a richness that was captured beautifully by the Coke ad.

Another 4th Circuit Social Group Victory! When is mental illness not like hating broccoli?

2 Feb

appeal-granted

Last week, we wrote about the Fourth Circuit’s decision in Martinez v. Holder, in which the 4th Circuit held that “former gang members” can qualify as a particular social group for the purpose of establishing eligibility for asylum.  Martinez is one of the two cases we wrote about in October in the hope that the 4th Circuit would bring some clarity and reason to the jurisprudence on the meaning of “particular social group” as a basis for asylum eligibility.  We now focus on the victory for immigrants in Temu v. Holder, in which the 4th Circuit decided that “people with bipolar disorder who exhibit erratic behavior” satisfies the requirements for designation as a particular social group and can establish eligibility for asylum.

Mr. Temu is a Tanzanian national whose mental illness caused him to enter the traffic on the streets of Dar Es Salaam to direct traffic because he believed that he had the power to prevent accidents with his hands.  This behavior caught the attention of Tanzanian authorities who deposited him in a hospital, where he was subjected to beatings by the nurses.  Tanzanian custom sees mental illness as demonic inhabitation and treatment is in the form of beatings.  During these beatings, Mr. Temu was told “this is how we treat people like you.”  They referred to him by the name of “mwenda wazimu,” a Tanzanian term for those with visible severe mental illness which literally means “demon possessed.”

Mr. Temu eventually made his way to the U.S. and sought asylum arguing that he faced persecution on account of his membership in the social group of individuals with bipolar disorder who exhibit erratic behavior.  The Immigration Judge denied Mr. Temu asylum stating that his proposed social group lacked the required elements of immutability, particularity, and social visibility.   Moreover, the IJ held that Mr. Temu was not persecuted on account of this social group.  However, the IJ did find that Mr. Temu merited relief under the Convention Against Torture (CAT) because he had been tortured by his nurses and guard because he was mentally ill.  The Board of Immigration Appeals affirmed the IJ’s ruling.

The 4th circuit rejected the IJ and BIA’s reasoning.  “It is impossible to square the BIA’s conclusions with the undisputed facts of this case.”  Reviewing the fact that Mr. Temu credibly testified that nurses beat him and told4th cir him that they were doing it to him because he was mwenda wazimu, the 4th Circuit stated, “we fail to see how a rational factfinder could simultaneously credit these facts and also conclude that Mr. Temu was not persecuted because of his mental illness and its manifestations.”  The court continued “it is difficult to imagine evidence that is more persuasive and unequivocal than a persecutor directly telling a victim, “this is how we treat people like you.”  The court then exposed the inconsistency by noting that shortly after finding that Mr. Temu was not persecuted because of his mental illness, the IJ granted CAT relief stating that “he was singled out for more frequent beatings because he was mentally ill.”  The court stated that “logical acrobatics” would be required to reconcile the conflicting findings on CAT relief and asylum eligibility.

The court also engaged in an expansive analysis of the BIA’s requirements for classification of a particular social group: (1) immutability; (2) particularity; and (3) social visibility.  Of these requirements, the social visibility standard has been the most problematic.  The court stated unequivocally that “social visibility does not mean ocular visibility.”  In other words, for a group to be socially visible, it is not necessary that all members be identified by sight.  The court quoted a dissent from Judge Alex Kozinski of the 9th Circuit in which he explained that, for example, in the United States “Vietnam veterans, . . . cancer survivors, blind people, Cajuns, practitioners of Falun Gong, and hippies” would likely be identified as social groups whereas “second-born children and haters of broccoli would not.”  Social visibility relates to whether society views them as a group and not whether they are identifiable on sight.  The court found that since Tanzanian society views the “mwenda wazimu” as a group, that is all that the social visibility test requires.  The court also discussed particularity, a requirement that demands that a proposed social group have identifiable boundaries.  The IJ noted that not all bipolar people engage in erratic behavior and not all those who engage in erratic behavior are bipolar.  The 4th Circuit held that the BIA ad IJs must consider the social group formulation as a whole and not broken into component parts.  When taken as a whole, the social group of “bipolar individuals who exhibit erratic behavior” is sufficient to particularize the group.  Finally, the court found that the BIA and IJ were wrong on whether Mr. Temu’s condition was immutable.  The IJ had concluded that since Mr. Temu’s condition could be controlled with medication, it was not immutable.  However, the IJ also made the factual findings that Mr. Temu had been abandoned by his family in Tanzania and that the medicines he required were not widely available in Tanzania.  The court concluded that “Mr. Temu’s membership in his proposed group is not something he has the power to change.”

One judge on the three judge panel dissented and stated that he would defer to the BIA’s findings.

The case has been sent back to the immigration court and it is likely given this ruling that Mr. Temu will receive asylum.  This will help Mr. Temu get the assistance and medication he needs to remain stable and a chance at a life far removed from the beatings and deprivations he endured in his home country due to his mental illness.

This case was brought by some outstanding lawyers, Katie Bukrinsky and Thomas Tynan at McDermott Will & Emery, working pro bono.  It is a case that was identified by the fierce and lovely lawyers from the Capital Area Immigrant Rights Coalition and Stephen Dekovich of CAIR submitted an amicus brief on behalf of the organization, which has labored for years to advance the rights of the mentally ill in immigration proceedings.  Finally, I had the honor to participate in moot court events to prepare these talented advocates for oral argument.  BR sends our heartiest congratulations to all those involved and to Mr. Temu for having the courage and resourcefulness to take this to the circuit after being shut out by the Judge and the BIA.