No change, no hope, says Texas judge — but he doesn’t have the final word on immigration

Peace for ImmigrantsOn February 17, Texas federal district court judge Andrew Hanen issued a preliminary injunction to stop immigration changes. That’s an order saying the government may not proceed with expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Legal Permanent Residents (DAPA). The order is one of the very early steps in the lawsuit against the federal government by 26 states. These states want to overturn President Obama’s executive orders on immigration.

DACA: The order does not affect people who already have DACA status. It does affect immigrants older than 30 who could qualify for DACA under the expanded program. They were supposed to be able to apply for protection from deportation and work permits beginning today, February 18. Vox says that is about 290,000 people. Immigrants who are under 30 and qualify for DACA because they came to the United States as children and meet the various other DACA criteria can still apply. The court ruling affects expanded DACA, but not original DACA.

DAPA? DACA? What’s this? 

Original DACA is the program, established by Obama’s executive action in 2012, which gives temporary protection from deportation and work permits to many young people who were brought to this country as children before 2010 and who were 15-31 years old on June 15, 2012. More info hereExpanded DACA, announced by the Obama in November 2014, lifts the age limits for application, though the person still needs to meet the “brought here as a child” definition.

DAPA would give protection from deportation and work permits to parents of U.S. citizens who are present in the U.S. and have lived here continuously since January 1, 2010. More info here.

DAPA: The DAPA program would grant temporary status to undocumented parents of U.S. citizen and green card holders. The judge’s order puts DAPA on hold for now. That means no protection from deportation and work permits for an estimated 3.7 million people — for now.

For more immigration news, check out my Immigration News newsletter, and subscribe to receive it monthly.

What next? The Obama administration will appeal the preliminary injunction and is fighting the underlying lawsuit.

Vox is becoming my favorite news site. Its explanations are accurate and written in easy-to-understand language. So I recommend Dara Lind’s article, A federal judge just put the brakes on Obama’s immigration actions, and also Vox’s card stack explaining Obama’s immigration orders.

Beyond the legal battles, Lind also notes the threat to success posed by all of the court fights and propaganda:

“When the administration created the first deferred-action program in 2012, for young unauthorized immigrants, they discovered the success of the program relied on people signing up — and on the ground, organizers learned that finding eligible immigrants and getting them to apply was the hardest part. Now, community groups are trying to educate a much larger, more diffuse immigrant population about the new deferred-action programs, and persuade them that it’s safe to apply. But news and misinformation about the lawsuit is spreading confusion and fear among the very people these groups are trying to reach.

“Organizers are worried about a ‘chilling effect’: by the time applications do open for deferred action, immigrants will have been intimidated out of applying, because they won’t believe the program is safe or permanent.”

The American Immigration Council also has good coverage of the ongoing battle, reminding readers that the preliminary injunction leaves part of Obama’s November 2014 orders in place. That part is the order establishing immigration enforcement priorities.

“This memo establishes a department-wide set of priorities that focus on the removal of individuals who pose threats to “national security, public safety, and border security.” It went into effect on January 5, 2015. Virtually every person who is eligible for expanded DACA and DAPA will not qualify as an enforcement priority and will be a strong candidate for the favorable exercise of prosecutorial discretion, should they come into contact with immigration enforcement officers.”

For an in-depth look at what DACA and DAPA mean, take a look at Geoffrey Heeren’s article, “The Status of Nonstatus,” in the American University Law Review. From the abstract:

“The Obama Administration’s ‘Deferred Action for Childhood Arrivals’ (DACA) and ‘Deferred Action for Parental Accountability’ (DAPA) programs are the most recent and largest categories of nonstatus, but there are many others: parole, administrative closure, supervision, Deferred Enforced Departure, and Stays of Removal. What these categories have in common is that they are discretionary, unreviewable, weakly described by positive law, and officially temporary, although persons often live for years or even lifetimes in the purgatory of nonstatus. They occupy a paradoxical middle ground between legality and illegality, loosely tethered to this country by humanitarian concern or prosecutorial discretion. Those with nonstatus have fewer rights and remedies than those with immigration status. At the same time, they must register, disclose biographic data, be fingerprinted, and regularly update their address. Yet nonstatus is not just a government surveillance program; it is the only way for many persons to claim some measure of dignity and legitimacy from a society that places a strong stigma on unauthorized migrants.”

Millions of immigrants languish in this “nonstatus” purgatory for years on end. It’s long past time for Congress to act responsibly to create a path to legal permanent residence and eventual citizenship.

Federal Court Enjoins Detention of Central American Mothers and Children

Child from HondurasA federal court has enjoined the Department of Homeland Security from detaining Central American mothers and children for the purpose of deterring future immigration. While the order in the case of RILR v. Johnson, released February 20, 2015, was somewhat overshadowed by an order from a different federal judge (whose ruling on February 16 put the administration’s plans for deferred action on hold), the opinion in RILR signals one of the most significant challenges to federal immigration detention policy, which has been largely unfettered by either legal or budgetary constraints.

The order by Judge James Boasberg, U.S. District Judge for the District of Columbia, also granted provisional class certification to Central American mothers and children who have been or will be detained in ICE family detention facilities while seeking asylum. Read more about the case at the ACLU’s Immigrant Rights Project, which is lead counsel for the case. You can hear a great 3-minute discussion of the opinion by Melissa Crow, legal director of the American Immigration Council.

Detention-as-deterrence is an affront to human rights. It violates longstanding standards against arbitrary detention by failing to afford the detained mothers and children an individual custody determination and by depriving liberty as a result of the exercise of the right to seek asylum from persecution. It is contrary to the guidance of the UN High Commissioner for Refugees, which allows for detention of asylum seekers only as a last resort. And it flies in the face of our obligations under international refugee law by deterring refugees from seeking asylum at all.

Judge Boasberg’s opinion bears close reading. One by one, the judge dismantles the stack of assumptions upon which the government has built its precarious justification for imprisoning families who have fled to this country seeking asylum.

At the outset the judge makes clear that the government’s decision to imprison arriving asylum seeker families rests not on any threat to public safety or risk of flight posed by the individual mothers and their children. Instead, U.S. immigration authorities’ decision to detain arriving families “reflects a desire to deter” the flight of others.

That the government is detaining families in order to deter asylum seekers from seeking protection has been of grave concern to The Advocates for Human Rights, as we pointed out in a statement made to the Senate Judiciary Committee earlier this year:

…[T]he Administration’s … decision to continue the detention of families fleeing to the United States in search of asylum is of grave concern. Just days before the announcement of administrative relief for undocumented Americans, the Administration reiterated its commitment to the imprisonment of families seeking asylum by confirming it plans to open the massive Dilley, Texas family detention center before the end of the year. This action not only violates the obligation to protect the family, but raises serious concerns about the rights to freedom from arbitrary detention and due process of law. The Administration’s detention of families, deliberately designed to deter asylum seekers from seeking protection, also violates our obligations under the Convention and Protocol relating to the Status of Refugees.

In his opinion, Judge Boasberg looks the Constitution directly in the face, so to speak, and finds that family detention designed to deter future migration gives the Fifth Amendment’s Due Process Clause a black eye.

Quoting Zadvydas v. Davis, the Supreme Court’s 2001 case that put an end to indefinite detention of immigrants, Judge Boasberg notes that the Court has repeatedly recognized that “[f]reedom from imprisonment – from government custody, detention, or other forms of physical restraint – lies at the heart of the liberty that Clause protects.” He reminds us that “in keeping with this fundamental precept, the Zadvydas Court explained that “government detention violates [the Due Process Clause] unless the detention is ordered in a criminal proceeding with adequate procedural protections, or, in certain special and narrow nonpunitive circumstances, where a special justification, such as harm-threatening mental illness, outweighs the individual’s constitutionally protected interest in avoiding physical restraint.” 533 U.S. at 690.

Immigration detention is civil detention, or as the judge puts it, “non-punitive in nature.” As a result, it bears few of the procedural safeguards of the criminal detention system (and many indicia that it violates international standards against arbitrary detention). There is no right to an attorney, no independent review of the decision to detain. At the same time, for those confined within the walls of the hundreds of county jails, ICE detention centers, and private prisons that hold upwards of 34,000 immigrants every day, it is without doubt a deprivation of liberty.

The Advocates submitted a laundry list of human rights violations attendant with U.S. immigration detention policies to the UN’s Human Rights Council, which will review the U.S. human rights record later this year.

Finding the detention of mothers and children to be civil, the judge poses the relevant question: “whether the Government’s justification for detention is sufficiently “special” to outweigh Plaintiffs’ protected liberty interest.” There are times, the judge notes, when the reason for detention has been sufficient justification; for instance preventing flight or protecting the community from individuals found to be especially dangerous.

But in this case, where the government seeks to use its detention authority to deter mass migration, it misses the mark. Relying the Supreme Court’s decision in Kansas v. Crane, 534 U.S. 407 (2002) the judge reminds us that when it comes to civil detention such general deterrence justifications are impermissible.

In a particularly piercing analysis, Judge Boasberg puts paid to the oft-repeated “they don’t have rights” myth relied upon by the government:

In an attempt to evade this rigorous inquiry, [the Government] note[s] that the present class is comprised of noncitizens, whose entry into this country was unlawful. It follows, they say, that “Plaintiffs have extremely limited, if any, due process rights regarding [their] custody determinations.”… The Government is mistaken.

While it is true that “certain constitutional protections are unavailable to aliens outside of our geographic border,” the Supreme Court has made clear that “once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas, 533 U.S. at 693 [further citations omitted]….It is clear, then, that they are entitled to the protection of the Due Process Clause, especially when it comes to their liberty.

The court finally deals with what has too often been a trump card when it comes to limiting the human rights of immigrants: [cue ominous music] national security.

The judge first notes that the government has “essentially conceded that the recent surge in detention during a period of mass migration is not mere happenstance, but instead reflects a desire to deter such migration. Indeed, they state that ICE officials are required to follow the binding precedent contained in Matter of D-J-, 23 I. & N. Dec. 572 (2003)…”

Matter of D-J-, issued by Attorney General John Ashcroft in April 2003, upheld the categorical detention of all Haitians attempting to seek asylum by boat. Relying on the same specious arguments that underpin the Government’s decision to imprison Central American families, the Attorney General found that mass migration was, in and of itself, a national security threat because it “heavily taxed Coast Guard capacity and capabilities.” Matter of D-J-, 23 I. & N. Dec. 572, 578.

At the time the Attorney General issued Matter of D-J-, I despaired of the blind eye turned to individual liberty – not to mention the right to seek and enjoy asylum from persecution. It’s taken over a decade to see a court not shy away from the dread specter of “national security” and instead presses for evidence that the purported national security risk is, in fact, well-founded:

Even assuming that general deterrence could, under certain circumstances, constitute a permissible justification for such detention, the Court finds the Government’s interest here particularly insubstantial. It seeks to deter future mass immigration; but to what end? It claims that such Central American immigration implicates “national security interests,” (citing D-J-) but when pressed to elaborate, the principal thrust of its explanation is economic in nature. It argues, in essence, that such migrations force ICE to “divert resources from other important security concerns” and “relocate” their employees. The Government has not, however, proffered any evidence that this reallocation of resources would leave the agency somehow short-staffed or weakened. Defendants have not conjured up the specter of an influx’s overwhelming the country’s borders or wreaking havoc in southwestern cities. The simple fact that increased immigration takes up government resources cannot necessarily make its deterrence a matter of national security, with all the attendant deference such characterization entails. (Opinion at 35-36).

Rightly, when it comes to depriving persons of their fundamental right to liberty, the judge demands more of the Government: “when its chosen vehicle [to deter mass migration] demands significant deprivation of liberty, it cannot be justified by mere lip service.”

By: Michele Garnett McKenzie, The Advocates’ director of Advocacy 

“I Know Why a Caged Bird Sings”

The quilt created by Gail Irish, and inspired by resilience and strength of others.
Created by Gail Irish, the quilt’s inspiration was the resilience and strength of others.

Each year, the quilt club I belong to sets a theme for the quilts we create for our annual exhibit at Glad Creations, Inc., a Minneapolis quilt shop. “Stripes” was the subject for our Winter 2014 projects.

At about that time, Cece McDonald, a transgender African-American woman who used deadly force to protect herself during a brutal transphobic and racist assault in Minneapolis, was released from prison after serving 19 months of a 41-month sentence. When she took a plea to avoid potential murder convictions and possibly 80 years in prison, she was freed. Through her story, I learned about the disproportionate numbers of transgender people of color in prison, not to mention the prison population’s disproportionate numbers in general of people of color.

Then, when the world lost Maya Angelou, I was reminded once again how her poem “I Know Why a Caged Bird Sings” uses the image of a caged bird as a metaphor to tell the story of Angelou’s struggle to escape oppression of racism and sexism.

In my volunteer work at The Advocates for Human Rights, I meet refugees seeking asylum in the United States because they fear persecution and death if they return to their home countries. Many of them spent time in prisons under deplorable conditions in their countries of origin.

In my work teaching English to adult immigrants and refugees, students have told me stories about unlawful detention, torture, isolation, long separation from loved ones, and many other hardships.

What stands out for me through all of this is the resilience and strength that allow these individuals to fight for survival and dignity.

With my students, the refugees with whom I work, McDonald, and Angelou as inspirations, I imagined bars on windows for the quilt theme of “stripes.” I chose a traditional pattern called Attic Windows, and used a striped fabric for the windows. While all of the windows have bars, the sun is shining brightly.

Some of us are in cages of our own making. Others are in cages that result from the many inequities in our society. My hope is for greater compassion and a greater understanding of the issues and realities that put people behind bars, and more humane treatment of those who remain there.

By: Gail Irish, a volunteer with The Advocates for Human Rights

The Answer to Preventing Atrocities: Human Rights Education

Zeod Ra'ad Al Hussein, UN High Commissioner for Human Rights
Zeid Ra’ad Al Hussein, UN High Commissioner for Human Rights

If you ever wonder what you can do about human rights violations taking place in your community or around the world, I challenge you – on this World Day of Social Justice – to read the powerful message of Zeid Ra’ad Al Hussein, the UN High Commissioner for Human Rights, spoken recently at Washington, D.C.’s Holocaust Memorial Museum:

“…I wake up every morning and, along with brilliant staff – some of the world’s best human rights lawyers and activists – I scan the news and am revolted by what I read. I am sure you all feel the same. Everyday, we are outraged by one piece of news after another! In fact, we must fast be reaching a state of permanent disgust.

“…[Y]ears of tyranny, inequalities, fear and bad governance are what contribute to the expansion of extremist ideas and violence. Few of these crises have erupted without warning. They have built up over years – and sometimes decades – of human rights grievances: deficient or corrupt governance and judicial institutions; discrimination and exclusion; drastic inequalities; exploitation and the denial of economic and social rights; and repression of civil society and public freedoms. Specific kinds of human rights violations, including sexual violence, speech that incites violence, and patterns of discrimination against minorities, can provide early warning of the escalation of crisis into atrocity.

“With so much movement across our screens and newspapers, we believe we are now somehow cart-wheeling into a future more uncertain and unpredictable than ever before. We are also bombarded by so many individual pieces of news, and commentary, our thoughts become equally scattered and devoid of any clear understanding of what it all means…

“And so it would be easy for us to give way to a sense of complete hopelessness. But we cannot succumb to that way of thinking. Surely we now know, from bitter experience, that human rights are the only meaningful rampart against barbarity.

“…Since we cannot afford sinking into a state of paralysing shock, our task becomes the need to strengthen our ethics, our clarity and openness of thought, and our moral courage.

“To do this I can only suggest that we must turn to a new and deeper form of education. Education that goes beyond reading, writing and arithmetic to include skills and values that can equip people to act with responsibility and care. (Emphasis added.)

“…Before every child on this planet turns 9, I believe he or she should acquire a foundational understanding of human rights, and that these concepts should grow in depth and scope as he or she develops. The underlying values of the curriculum would be virtually identical in every school, deriving from the Universal – and universally accepted – Declaration of Human Rights. In this way, from Catholic parochial schools to the most secular public institutions, and indeed Islamic madrassahs, children could learn – even in kindergarten – and experience the fundamental human rights values of equality, justice and respect.

“My children, and yours, and children everywhere, need to learn what bigotry and chauvinism are, and the terrible wrongs they can produce. They need to learn that blind obedience can be exploited by authority figures for wicked ends. They should also learn that they are not exceptional because of where they were born, how they look, what passport they carry, or the social class, caste or creed of their parents; they should learn that no-one is intrinsically superior to her or his fellow human beings.

“Every child should be able to grasp that the wonderful diversity of individuals and cultures is a source of tremendous enrichment. They should learn to recognise their own biases, and correct them. Children can learn to redirect their own aggressive impulses and use non-violent means to resolve disputes. They can learn to be inspired by the courage of the pacifiers and by those who assist, not those who destroy. They can be guided by human rights education to make informed choices in life, to approach situations with critical and independent thought, and to empathise with other points of view.

“Children are fully able to grasp the implications of human rights. And they are able, too, to understand the power that human rights principles bestow on them. Every child can help to shape her or his universe: this is the lesson of that physically tiny and yet symbolically immensely powerful young woman, Malala, who has enriched the moral heritage of humanity.

“We do not have to accept the world as it is; indeed, we must not. We do not have to give in to the dark allure of hatred and violence: indeed, it is vital that we find the energy to resist it. These lessons are surely as fundamental to life on Earth as advanced calculus.”[1]

Parents, teachers, administrators, students, curriculum specialists, policymakers, and anyone reading this who appreciates the power of education as a means of preventing human rights violations, you can make a difference. The root causes of abuses ranging from discrimination to interpersonal violence to mass atrocities can and must be addressed through human rights education.

Here is what you can do:

  • Learn more about human rights education by going to org/uploads/hre_edition.pdf.
  • Contact your community school and ask how they are giving students at every grade level the knowledge, skills, and values of human rights. Offer free curricular resources available at org/for_educators.
  • Read the UN Declaration on Human Rights Education and Training and share it with your local school, through social media, and in conversation.
  • Become part of a national movement by joining Human Rights Educators USA by going to net. (If outside in the U.S., look for a similar group in your area.)

What we teach our children today has radical implications for the future of our communities and world. Human rights education is the obligation of governments and the moral imperative of individuals. We either equip children with the knowledge, skills, and values to uphold human rights – or we don’t. And we live with the repercussions either way.

By: Sarah Herder, The Advocates for Human Rights’ director of Education.

[1] Office of the High Commissioner for Human Rights. Feb. 5, 2015. “Can Atrocities Be Prevented? Living in the Shadow of the Holocaust, UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein at the Holocaust Memorial Museum.” http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15548&LangID=E#sthash.QRxCwKej.dpuf.

Death Penalty: Volunteers Assist Global Partners with UN Advocacy

Death Penalty: Volunteers Assist Global Partners with UN Advocacy

 

Stoning
Illustration of Iran’s method of execution by stoning. A country’s method of execution for capital offenses can be raised in Universal Periodic Review submissions, particularly if it is a cruel and inhuman, practice such as stoning. Photo credit: Amnesty International UK

While the use of death penalty is decreasing worldwide, 22 countries carried out executions and 57 imposed death sentences in 2012.

Execution methods range from lethal injection to the firing squad, but hanging remains the most common method. Some countries, including Iran, continue to use stoning, a practice based on Iranian interpretation of sharia, as an execution method for non-violent crimes such as adultery.

As someone who is from a Muslim country, I was shocked to learn that stoning exists in Iran’s penal code and is carried out in public. I became aware of the severity of the death penalty in Iran and the United States during The Advocates for Human Rights’ January 22 training on death penalty advocacy for the Universal Periodic Review (UPR). Led by Jennifer Prestholdt, Rosalyn Park, and Amy Bergquist, the training addressed civil society’s role in advocating against the death penalty by participating in the UPR process. The training also surveyed a long list of death penalty issues in countries around the world, including:

  • capital punishment for non-violent and other less serious crimes;
  • imposition of the death penalty on child offenders and people with mental disabilities and mental disorders;
  • mandatory imposition of the death penalty for certain crimes;
  • limitations on the right to appeal a conviction in capital cases;
  • use of torture to extract confessions and in the process of imposing the death sentence;
  • death row conditions; and
  • wrongful convictions.

The Universal Periodic Review
The Universal Periodic Review is the UN Human Rights Council’s “peer review” mechanism for monitoring human rights around the world. The UPR is a periodic review of human rights in all UN member states. During the “interactive dialogue” of the UPR, UN member states can make recommendations to the state under review. NGOs and other groups can submit “stakeholder reports” and then later lobby to try to influence those recommendations:

 

UPR 4 year cycle
The training presented best practices for writing stakeholder reports and working with partner organizations in bringing their issues to the United Nations for the UPR. The presenters emphasized the importance of ensuring that information in stakeholder reports is accurate and useful. They also highlighted the importance of proposing powerful, effective recommendations.

The Advocates regularly submits UPR stakeholder reports to address human rights issues. Recently, while assisting with a report on the death penalty for the UPR of Lebanon, I discovered that executions in Lebanon are commonly linked to poverty. The spillovers from the Syrian civil war and the so-called Islamic State make Lebanon politically unstable; the resulting humanitarian crisis may increase the likelihood of Lebanon imposing death sentences for crimes arising out of poverty.

People from around the world joined the training
In advance of the training, the World Coalition Against the Death Penalty notified its members that they could participate remotely through a live weblink and dial-in line. Representatives from an impressive list of NGOs — including Kisarawe Paralegals Organization (Tanzania), MRU Youth Parliament (Sierra Leone), ECPM (France), Lifespark (Switzerland), Lawyers Without Borders (Nigeria), Rescue Alternatives (Liberia), Coalition Mauritanienne contre la peine de mort (Mauritania), ACAT (Liberia), and Droits et Paix (Cameroon) — registered to attend the training remotely.

An alliance of more than 150 NGOs, bar associations, local authorities, and unions, the World Coalition’s works to strengthen the international dimension of the fight against the death penalty. The Advocates serves on the organization’s steering committee, and partners with World Coalition members based in countries that retain the death penalty to collaboratively advocate at the United Nations.

If you missed the training or want to see it again, you may access the video here:

Powerpoint: UN Advocacy UPR Death Penalty FINAL

You can access the handouts from the training by clicking on the following items:

To learn more about advocacy at the United Nations, read Chapter 9 of The Advocates’ groundbreaking publication, Human Rights Tools for a Changing World: A Step-by-step Guide to Human Rights Fact-finding, Documentation, and Advocacy.

By: Guest blogger Asil Abuassba, an intern with The Advocates’ for Human Rights’ International Justice Program. Abuassba, from Palestine, is a senior at St. Olaf College, Northfield, Minnesota.