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How Bob Dylan Helped me Understand the Dream 9

28 Jul

Dream 9

“Something is happening and you don’t know what it is, do you, Mr. Jones?

It wasn’t until Tuesday night at a Bob Dylan concert that I saw the limits of my own vision. I had avoided taking a position on the efforts of the Dream 9.  As a lawyer, you hate to see people take actions that can jeopardize themselves.  As as someone who only vaguely knows, but cares deeply about, Lulu, Marco and Lizbeth, I was worried for them.  Worried that emotion, anger, frustration would lead to a lifetime of regret.  That may yet come to pass.

Moreover, it seemed to me that the reaction from DHS would be utterly predictable.  The requests for humanitarian parole would be denied.  They would be subjected to expedited removal and returned to Mexico within a few hours.  What good was done there?  Ah, but the Dream 9 had a trick up their sleeve.  They asked for asylum.  By asking for asylum, the Dream 9 would be detained by the CBP until they could have a hearing on whether they had a credible fear of persecution.  I have no idea whether they have meritorious claims for asylum, but I do know that an honest application, even if a losing application, is not a frivolous application.  The Dream 9 were then transferred to Eloy Detention Center in Arizona.  Eloy is one of the bigger detention centers in the U.S. where immigrants in removal proceedings are housed.  It is a contract facility by the Corrections Corporation of America, a company that believes so little in America that it makes extraordinary profits by detaining people under contract with the government.  Moreover, CCA lobbies hard for draconian and vindictive immigration laws that increase the use of detention in civil, and not criminal proceedings.  Lest a market opportunity be lost, CCA also loves laws like California’s three strikes law, which mandates lengthy jail time upon conviction of certain third offenses, no matter how minor.  In Eloy, the Dream 9 began to meet with other detainees to get their stories out, to shine a light in the darkest of places operated by the government and its privateers.  CCA reacted by placing them into solitary confinement, a practice increasingly viewed as torture, and limiting their access to telephones.  Of course, this is civil detention.  No crime has been committed here.  These are people who are trying to return home and trying to seek the U.S. government’s protection from a fear of harm in Mexico.

CCA fingerman

Whether the Dream 9 intended to or not, they have exposed the profound ugliness of the immigration detention complex.  Young adults who have lived their entire lives in the U.S. have sought to return home, claimed a fear of persecution in their home country and are being held in solitary confinement and deprived of communication with the outside world.  They are being held by a system that treats all immigrants like criminals and is fed by an unholy trinity of corporate greed, government subservience and Congressional posturing.  These are the laws.  They are unjust, immoral and corrupt.  The Dream 9 are  heroic for their willingness to endure these deprivations and for risking so much to expose this system.

“I was so much older then, I’m younger than that now.”

Some have said that the Dream 9 got what was coming to them.  That they knew that this would happen and, therefore, what is happening to them is just desserts.  This is the poking the tiger theory of political action.  However, I think that analogy is wrong.  More appropriate are the people who say that women who dress in provocative ways invited their sexual assaults.  This theory states that there is evil in the world and we are best not to court it.  This theory wrongly fails to focus on the acts of the one committing the wrong and focuses on the one set upon.  It is the rapist that deserves our scorn.  It is the detention industrial complex which deserves our recrimination. Very little has been gained in the world by not confronting evil.  It is only when evil is confronted head on that it wilts in front of the power of justice and right.

It has also been said that the Dream 9 are jeopardizing immigration reform.  As a supporter of the passage of S.744, I am very concerned about the fate of the bill.  While I am in favor of the bill, I am disappointed that it does little to address those problems that the Dream 9 have sought to expose.  The unholy alliance between private prison contractors and Congress, the revolving door between DHS and the privateers, and the use of detention in a civil system remain unchecked, and possibly even enhanced.  It is a flawed bill, but, on balance, worth supporting.  The Dream 9 are reminding us of the failures of our efforts to show the basic inhumanity of the detention system.  If the bill passes, many will think that immigration is “done.”  As long as the gulag archipelago exists, our systems required comprehensive reform and the Dream 9 remind us of that.

The Dream 9 have shown courage in seeking to expose the dark underbelly of immigration reform- what is actually done, what has been left out.  They fit within a great American tradition of civil disobedience against unjust laws.  The reaction of the power structure has been the same both times- excessive force.  It is not firehoses and German Shepherds today, but solitary confinement and prolonged detention.

I did not understand that this would be the outcome of these efforts, but as Bob sang “I was so much older then, I am younger than that now.”

Arizona loses again, but its citizens win

17 Jun

Today, the Supreme Court ruled 7-2 in Arizona v. Inter Tribal Council of Arizona, Inc. that the state of Arizona cannot separately require an individual to prove he is a citizen in order to register to vote beyond the regulations set forth by the federal government.  This decision stated that Arizona’s additional “proof of citizenship” form was contrary to the National Voter Registration Act, the federal law establishing a specific form for Voter Registration.  The Court held that this form was sufficient evidence of citizenship without additional proof and on that basis struck down the Arizona law requiring a registering voter to prove he is a citizen.

AZ

Although this case was decided under the Elections Clause, where federal law always trumps state law, this is an important decision for those who have had to jump over additional unconstitutional hurdles, simply due to the biases of those who enact and implement Arizona’s laws.  No longer will citizens of Arizona be forced to jump through legal hoops that the Federal Government does not require.  We are hopeful that this reasoning will extend to other states and legislation that has placed additional burdens and barriers on individuals beyond what is required and permitted by the Federal Government.  Although Jeffrey Toobin did not think there were any major Supreme Court decisions today, Benach Ragland believes the enfranchisement of the voters of Arizona is major indeed.

The Supreme Court’s rejection of the theories offered by Arizona officials is another black mark against the litigation strategy the State of Arizona has embarked upon.  In the last year, this is Arizona’s second major defeat at the Supreme Court.  Less than a year ago, the Supreme Court knocked down Arizona’s SB 1070, the “show me your papers” law in Arizona v. United States.   Earlier this month, a federal judge in Phoenix ruled that Maricopa County Sheriff Joe Arpaio had systematically violated the civil rights of the Hispanic citizens of the United States.  While the Sheriff has expressed his intent to appeal, Arizona citizens are questioning the use of state funds to pay for ineffective and hubristic litigation.  How much money has been spent by Jan Brewer and Joe Arpaio to defend indefensible policies?  In  the era of the sequester and failing schools, can Arizona afford Jan Brewer’s and Joe Arpaio’s ego trips to court?

Arpaio

PS- I took this picture myself!  – ACB

An Open Letter to Rep. Spencer Bachus

21 Mar

Dear Congressman Bachus,

Thank you very much for speaking out about the overuse of detention by Immigration & Customs Enforcement (ICE) in civil proceedings to determine the removability of individuals in the U.S.  By stating and asking “it looks to me like there is an overuse of detention by this administration.  If these people are not safety risks . . . why are we detaining them?,” you have joined the growing chorus of Americans who wonder why the government, during a time of fiscal crisis, spends so much money locking people up during immigration proceedings when they present no danger to society.  You are welcome in our club and we are glad to have you.

However, we do think it is important that you understand the role you played in building the gulag archipelago of immigration detention.  The explosion of immigration detention is a direct result of legislation you voted for, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  This law, more than any decision by the Obama administration, has resulted in the overuse of detention for individuals in removal proceedings.  While you are right to question the overuse of detention by the administration, please do not overlook Congress’, and your, responsibility in forcing the detention of tens of thousands of people, the vast majority of whom are not safety risks.  IIRIRA fueled the explosion of detention in several ways.  First, it expanded mandatory detention to cover lots of people convicted of minor offenses.   Mandatory detention has forced ICE (and INS before ICE) to detain people during the course of their removal proceedings.  These individuals had no right to individualized determinations of their risk to society or likelihood to appear for hearings.  By expanding the classes of people subject to mandatory detention, Congress created a base layer of detainees.  It is true that interpretations by this and previous administrations have increased the potential pool of mandatory detainees, but mandatory detention and its wide reach is a creation of Congress.  Second, IIRIRA labelled many minor offenses as “aggravated felonies,” requiring detention during removal proceedings.  For example, an individual convicted of shoplifting a pair of $100 sunglasses might be sentenced to one year imprisonment, with service of the sentence suspended.  In other words, the criminal court would determine that that individual should not serve jail time unless they do something bad during the year of the suspended sentence.  Under IIRIRA’s overinclusive language, such an offense would be an aggravated felony and subject that individual to mandatory detention.  And IIRIRA made it clear that it did not matter when the offense occurred.  It is hard to imagine that this hypothetical defendant is a safety risk, but the law gives ICE and the immigration courts no authority to release that individual.  Third, IIRIRA created 287(g) partnerships with state and local law enforcement to enforce immigration law.  The explosion of detention is also directly related to the numbers of people coming to ICE’s attention because a local police officer pulls an immigrant over for failing to use a turn signal.  IIRIRA is the impetus to Arizona-style laws, one of the worst of which was passed in your own Alabama, Congressman.  Fourth, by creating the ten year bar to return to the U.S., IIRIRA made it close to impossible for many immigrants to regularize their status.  Thus, individuals who would have been able to obtain residence under previous laws, remained in the U.S. in unlawful status.  When encountered by ICE, they have often been detained in the discretionary determinations of ICE.  It is true that here is an area where the administration’s overuse of detention is due to the refusal to exercise favorable discretion, but please note that many of these people would be legal residents if not for the 1996 Act.  In addition, please recognize the role that the fear of Congressional rebuke plays in ICE’s decisions.  Take a look at the outcry from your colleagues when ICE released 2200 detainees last month in anticipation of the sequester.  Moreover, Congressional intent has been a key building block of the judicial decisions that have legalized the massive detention edifice.  Decisions such as the Supreme Court’s Demore v. Kim, which upheld mandatory detention, and Matter of Rojas, where the Board of Immigration Appeals decided that mandatory detention applies to people released from custody years or decades ago, are underpinned by statements that Congress intended to impose an unyielding policy of detention in IIRIRA.

Finally, Congress has provided ICE with enormous sums of money to spend on detention.  As you know, nature abhors a vacuum.  As Congress states that it intends to tighten spending, the unnecessary detention of the thousands of people who present no real danger to society should be looked at skeptically.  ICE will spend the money Congress gives it on detention.  It is up to Congress to say “no.”

Congressman, thank you for taking a stand against the overuse of detention.  We are glad to have you as an ally and hope that you use your position in Congress to advocate for more sensible immigration policies.  Thanks again for speaking out and we hope that the words are matched with action.

Sincerely,

Benach Ragland LLP

 

Someone(s) at ICE Needs to Be Fired

11 Jan

ht_erika_andiola1_mom_130111_wg

Those of us on the East Coast woke up this morning to the news that Maria Arreola and her son Heriberto Arreola were arrested in their home Thursday night by Immigration & Customs enforcement in Phoenix, Arizona.  Another day in immigration, where ICE enters people home’s homes and removes individuals who have done little more than entered into or remained in the country without permission.  Yep, this was a normal case except that Maria is Erika Andiola’s mother and Heriberto is her brother.  And Erika is one of the most, to paraphrase Junot Diaz, activistingest activists of activism on immigrant rights and reform and by the time ICE officials in Washington had their morning coffee, their inboxes were full of email, the phones full of messages and their press representatives scrambling to figure out what happened in Arizona.  Why is it always Arizona?

Well, it did not take long for the ICE brass to realize something was dreadfully wrong.  After all, the Director of ICE states that ICE has priorities and those priorities were securing the homeland, protecting the national security, keeping our communities secure, and maintain the integrity of the immigration system.   Memos have been written!  Trainings have been held!  Testimony has been given!  ICE is going to focus on the worst of the worst.  ICE is going to engage in smarter law enforcement and target those who threaten our national security and our public safety.  Fifty something women who entered illegally and never left and their teenage son are not considered priorities!

So, what happened in Phoenix?  Was this the action of local ICE agents who were just going about business as usual?  Was this the action of local ICE agents who had an axe to grind against Erika Andiola?  Did they even know that Maria was Erika’s mother?  If they knew, did they clear this with headquarters?  Did they consult the guidance on enforcement priorities before acting?

Evidence seems to point to another circumstance where ICE agents in a district far away from Washington went about their business without regard to the multiple expressions of policy from headquarters.   As readers of this page know, much of the ICE bureaucracy has been in open rebellion against the political leadership since the President took office and his ICE Director assumed controlIn addition, by mid morning, ICE had reversed itself.  An ICE spokeswoman stated: “One of two individuals detained by ICE in Phoenix, AZ has been released. The other individual will be released imminently. Although one individual had been previously removed from the country, an initial review of these cases revealed that certain factors outlined in ICE’s prosecutorial discretion policy appear to be present and merit an exercise of discretion. A fuller review of the cases is currently on-going. ICE exercises prosecutorial discretion on a case-by-case basis, considering the totality of the circumstances in an individual case.”  Maria was on a bus heading to Mexico when she learned of the stay of removal.  Looks like Phoenix ICE was trying to get her out as fast as possible before Washington could react.

I really hope that there was a lot of anger at ICE headquarters when they learned of the actions.  I hope that phones were slammed down and much screaming occurred.  I hope that people within ICE headquarters said “This is it!  This is the last straw.  Heads are going to roll!”  By now, it should be perfectly clear to the ICE political leadership that they are dealing with a rogue agency of bureaucrats who are in open contempt of the policy decisions of their bosses.  Moreover, the ICE bureaucrats do not have the courage to quit their positions and make a political stand.  They sabotage from the inside.  This is known as contempt and insubordination and it can no longer be tolerated.  ICE Director John Morton should demand the resignations of the Phoenix Field Office Director and anyone else who participated in this tragicomedy.  And if he can not do this, the President is the one who should be demanding Morton’s resignation.

This is Personal

30 Nov

One of the burdens I carry is the knowledge that I come from one of the country’s anti-immigrant hotspots.  No, I am not from Arizona, Alabama, Postville, Iowa  or Hazelton, Pennsylvania.  I grew up in Suffolk County on the eastern end of Long Island, New York.  While Suffolk County never passed laws like Arizona’s infamous SB 1070 or Alabama’s even more odious HB 56, Suffolk County gained notoriety for an even more loathsome practice– extreme violence against immigrants.

This phenomenon really got underway in 2004 when Israel Perez and Magdaleno Escamilla, day laborers from Mexico, were lured to a basement in Farmingville, NY with the promise of work where they were beaten and stabbed.  This hate crime occured as local anti-immigrant organizations used more and more inflammatory rhetoric against immigrants and aligned themselves with well-known white supremacists such as Glenn SpencerPBS sponsored a documentary about the violence and its aftermath:

Watch Video | Farmingville: Trailer | POV | PBS.

In 2008, Ecuadorean Marcelo Lucero was stabbed to death on the streets of Patchogue, New York.  Mr. Lucero was walking down the street, when he was attacked by a group of young men who went out to “beat on some Mexicans.”  This episode introduced the world to the practice of “beaner-hopping,” which is an activity where young men would find Hispanic men and beat them in the street.

During much of this time, the County Executive for Suffolk County was a despicable little troll named Steve Levy, who sought national prominence by bashing immigrants at every turn.  Rather than manage the affairs of his county, Levy attacked immigrants, changed parties and sought the Republican nomination for governor.  Levy assumed that he could ride his harsh rhetoric to Albany and never considered whether his words may have contributed to the climate that killed Lucero.   His huge campaign warchest was not enough to buy the nomination for governor and Levy declined to seek another term as executive, handing over $4m in campaign funds to the District Attorney, all but acknowledging serial corruption.

Suffolk County has a new executive, who signed an executive order earlier this month requiring agencies to translate official documents into several languages.  The county has 1.5 million residents, 20 percent of whom speak languages other than English at home. Interestingly, these are the languages other than English most commonly used in Suffolk: Italian, Mandarin, Spanish, Polish, French Creole and Portuguese.

That Levy would be out of office, Lucero’s killer in jail, and Suffolk residents contributing to the re-election of the President committed to immigration reform shows that, even in the darkest corners, the sun light can come in.  I am very relieved.  Mo Goldman, help is on the way!

Time to go, Sheriff Joe!

2 Oct

Yesterday, I had the opportunity to meet Paul Penzone, a Phoenix police officer for the past 21 years, who is running for Sheriff of Maricopa County, Arizona.  Now, ordinarily, I don’t have a lot of interest in races for Sheriff in a state I have never lived in.  However, this is a special race because Paul Penzone is running against incumbent Maricopa County Sheriff Joe Arpaio, the 80 year old Bull Connor of our time.

There is scarcely enough time to go through all of the outrageous abuses of power attributed to Sheriff Arpaio.  Just last year, the Justice Department released the findings of an investigation into allegations of abuses of power, racial profiling, and jailhouse abuse by Sheriff Arpaio’s department.  The Department concluded that Sheiff Arapio’s department had a “a pattern or practice of violating the United States Constitution.”  Sheriff Arpaio has been known to terrorize the Latino community in Phoenix, Arizona, using posse-style raids into the community to round up suspected undocumented immigrants.  The Justice Department called the racial profiling by the department the worst instance of racial profiling to date.  Arpaio’s program to target immigrants is not about safety but rather about animosity against Latinos.  Arpaio has said, of his anti-illegal immigration efforts, “Ours is an operation where we want to go after illegals, not the crime first…It’s a pure program. You go after them, and you lock them up.”  The Justice Department sued Sheriff Arpaio’s department in May 2012.

The terrorization of the Latino Community by Sheriff Joe has made Phoenix a less safe place than it was when the Latino community felt that they could have contact with the police that would not likely result in their incarceration.  Where people are afraid  that the police will arrest them because of the color of their skin or their accents, they do not report crimes, call in tips or otherwise help the police, resulting in a less safe community.  When this is combined with Arizona’s SB 1070 “papers please” law, the trust between the community and the police has been eviscerated.  This is the status quo in Maricopa County and what is most disturbing about it is that Sheriff Joe’s ideas are catching on.  Several states have enacted SB 1070 style statutes and, although courts, have generally voided most of these laws, the rough justice of Sheriff Joe has inspired copycat efforts by other wannabe sheriffs, who are drawn to Sheriff Joe’s iconic status among the hateful right.  This iconic status, however, comes at the expense of real policing which requires deep bonds of trust between the community served and the police department.

Paul Penzone gets this.  While he would get my attention simply by not being Sheriff Joe, Penzone plainly articulates the costs of Sheriff Joe’s reign of terror and speak passionately about building back trust in the Latino community.  Mr. Penzone ran a program called Testigos Silencios (Silent Witness) which was instrumental in catching two serial killers and provided the Latino community with an opportunity to interact with the police in a constructive way.  It would be a great thing to send Sheriff Joe packing, just as Russell Pearce, the noxious author of SB 1070, was booted from office.  But it is a big bonus for the people of Arizona, particularly the Latino community, to get a Sheriff who rejects the racial profiling, abuses, hysteria and fear-mongering that have characterized the Sheriff Joe era and who views his job as to address crime and to serve his community and not make headlines.

Penzone is within 6 points of Sheriff Arpaio.  No challenger to Arpaio has ever come within a dozen points of him.  The defeat of Russell Pearce and the caricature of Arizona as an international hate state have energized those good people in Arizona who want to return their state to the civilized world.  Arapio raises millions in the conservative echo chamber through stunts like challenging President Obama’s citizenship.  Penzone is ridiculously underfunded against Arpaio but he has mounted a serious challenge and all those who deplore the climate of fear that Sheriff Joe has created should send a check to Penzone and give him a fighting chance to take down this insidious man.

Oh No, he didn’t! Romney endorses anti-immigrant wingnut Steve King.

10 Sep

 

On Friday, Republican Presidential nominee Mitt Romney endorsed Steve King (R-IA) for another term in Congress.  King, who once compared selecting immigrants to dog breeding, represents the worst of nativist sentiment and  Romney’s solicitation of the know-nothing wing of his party makes a mockery of any analysis that indicates that demographics demand that Romney move off his “self-deportation” stance in the primary toward the more humane and comprehensive approach to immigration reform.

There has been tremendous speculation that Mitt Romney would “tack to the center” on immigration after the primaries.  During the Republican primaries, Romney staked out extreme anti-immigrant positions that made Rick Perry and Newt Gingrich almost seem sane.  In Florida, Romney embraced the “self-deportation” myth, that is, if life is made sufficiently miserable for immigrants they will leave of their own accord.  That approach is being tried in Alabama and Arizona and the result has been to detract from any meager economic recovery these states may have enjoyed.  But, as Romney consolidated his hold on the nomination, he distanced himself from anti-immigrant lawyer Kris Kobach and started hanging out with Marco Rubio, who made noises about how the Republican Party needed to take a different approach on immigration than “all deportation all the time.”  Rubio even started talking about a Republican version of the DREAM Act, but Romney would not comment on it.  When the President announced Deferred Action for Childhood Arrivals (DACA), Rubio dropped the DREAM Act and Romney dropped Rubio.

It now seems that Romney’s flirtation with the immigration mainstream is over and he is going back to the Brewer-Arpaio-Kobach-King axis.  His embrace of Steve King stating that he “wants this man as his partner in Washington DC” says all you need to know about Romney.  As the Spanish saying goes, “Dime con quien andes, y te dire quien eres.”  Tell me who you walk with and I will tell you who you are.  As the Proverbs say “the companion of fools will suffer harm.”

And, make no mistake, King is a fool.  Build the border fence?  Yes, says King.  Over turn the 14th Amendment’s birthright citizenship?  Yes!  English-only?  Yes!  King’s votes have earned him a 100% rating from the know-nothing Federation of Americans for Immigration Reform (FAIR).  But it is his mouth  that has really demonstrated his idiocy.  In addition, to his comparison of immigrants to breeding dogs, King has been good for the following nuggets:

There’s plenty more where that came from.  King is in the tightest race of his career as he is challenged by Christie Vilsack.  Immigrant’s List is a pro-immigrant PAC that works to raise funds against anti-immigrant incumbents and to elect individuals friendly to immigrant rights and has made King a top target for defeat.

Romney’s decision to spend his time with a politician who is on the losing side of history says a lot about where his campaign is these days.  He has chosen to appeal to the most extreme parts of the GOP base.  And while this may buy him some votes in 2012, it is not a good long term strategy.  Romney has set a target of 37% of the Hispanic electorate.  He has a long way to go.  Most polls show him hovering below 30%.    In addition, key states in this election such as Virginia, Florida, North Carolina, Nevada and Colorado have increasing numbers of Hispanic voters.  In addition, demographic trends show that more and more states are going to be competitive due to the increase in Hispanic voters.  The big prize in the Latino-inzation of the electorate is Texas.  While Texas is solidly GOP in this election, future elections are far from clear.  So Romney can pal around with dinosaurs like King and hope to nudge his numbers up in the Tea Party crowd, he is, long-term, helping to dig the grave of the modern GOP.