Immigration

Tyrants on the Loose: Trump’s Immigration Ban & Deportation Coming to A City Near You

Refugee men and fence

Refugee at Fence (Copyright Protected)

By. Vivian M. Williams, Esq, LL.M

When a federal appeals court looked beyond the four corners of President Trump’s Executive Order on Immigration, which bans immigrants to the United States from 7 predominantly Muslim countries, it strengthened the pillars of a constitutional democracy. The case reminds citizens of the world that governments don’t enjoy unfettered discretion to infringe individual’s rights and liberties through a mere assertion that national security is at stake. It is a moment for the judicial branch in small democracies to take note of the important role the judiciary plays to tame tyrants on the loose.

A mere week into his Presidency, his Attorney-General still not confirmed, the President of the United States made a bold and sweeping exercise of executive power. His travel ban tested the boundaries of executive authority. Implementation of his Order resulted in the exclusion and detention of immigrants from a handful of Muslim countries, who sought entry to the U.S. Federal courts came to the rescue of scores of green card holders, visitors, academics and refugees affected by the ban, putting a halt to its implementation. The government made a frantic attempt to reinstate the travel ban but it was denied by a Federal Appeals court. Instead of reinstating the Order, the Court delivered a stinging rebuke.

NO Unfettered Discretion when Individual Rights are Infringed

The government mistakenly believes its action is not subject to judicial review because it has unfettered discretion to exclude classes of aliens from entry into the United States. The administration relies on textually demonstrable language that seems to give the President untrammeled discretion to exclude categories of immigrants from the United States. However, it is well settled that courts review executive discretion for abuse when it abridges individual rights. The chaos at airports when the ban was rolled out, is evidence of the abridgment of particularized, concrete and judicially cognizable individual rights.

In denying Mr. Trump’s request to be permitted to proceed with his exclusion order, the court noted that the government erroneously takes the position that the President’s decisions about immigration cannot be reviewed, even if individual constitutional rights are contravened. This is a fatal error that the government is not likely to overcome. The Executive Order also has no provision for due process and contains religious tests that run afoul of the Constitution.

Dancing on Black Ice: That Legal Threat Over a Nonjusticiable Constitutional Provision

Bald assertion of National Security Interest not Enough When Individual Rights are trampled

While great deference is usually given to the Executive in cases of national security, mere reference to national security is not enough to shield the government from scrutiny. The court puts it nicely in rebuking the most powerful man in the world. It reminded him that the Constitution of the United States is a law for rulers and people, equally in war and in peace. The Court therefore, rejected the government’s efforts to move forward with the travel ban without providing evidence of a legitimate national security urgency. Reaching back more than 50 years the court invoked a precedent from the U.S. Supreme Court to get the message across to the President of the United States, that the Executive doesn’t have unrestricted freedom of choice simply because a statute deals with foreign affairs.

National defense cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal… It would indeed be ironic if, in the name of national defense, [the court] could sanction the subversion of one of those liberties… which make the defense of the Nation worthwhile.

From time immemorial, the High Court has signaled to overzealous Executives that executive authority should not be viewed as a chisel placed in the hands of the President to chisel away at other fundamental aspects of the Constitution, in a self destructive way. The Constitution is the plank upon which a nation rest so the destruction of it is a threat to the county’s viability. The Court therefore determined that the government cannot merely assert national interest when its actions collide with particularized, concrete and vested individual rights.

Some legal analysts bristle at the idea that the government must come forward with some evidence of imminent danger before implementing a sweeping infringement of individual rights. National Review staff attorney, David French believes the court issued a dangerous ruling.  In an article titled The Ninth Circuit Just Issued a Dangerous Ruling Against Donald Trump’s Immigration Order, he writes:

The President doesn’t have to wait for completed attacks to protect the U.S. from dangerous immigrants. He can see the deteriorating security situation on the ground, evaluate the intentions and capabilities of the enemy, and then act before the enemy can strike.

The ruling against the Trump administration is NOT inconsistent with the concerns raised by French. Courts have consistently held that when executive action collides with fundamental rights, at minimum, the government must establish some rational or reasonable basis for regulation. The court repeatedly asked the government to establish that nexus and it didn’t. A mere bald assertion of national interest or defense is NOT enough. Courts have also insisted that regulation must be narrowly tailored so that the abridgment of individual liberties is no more than what is required to achieve the legitimate goals of the government. As the bulwark of democracy and liberties the court must ensure that one branch of government is not parasitic to the principles and values a country is founded on.

Trump’s Immigration Stance- A Global Threat Coming to City Near You

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JFK Protest of Immigration Ban – Photo Courtesy Dr. Dhanpaul Narine

Immidiately after the attempt to reinstate the travel ban was denied, massive immigration raids were launched in major cities across the United States. Anxiety in immigrant communities is not restricted to Middle Eastern Muslims. Immigrants from everywhere are losing sleep at night and soon societies everywhere will feel the impact of Trump’s aggressive immigration stance when plane loads of deportees start touching down.

Mr. Trump is adamant that he will scrape the bottom of the immigrant barrel and return the trouble makers to their native land. Many of the so-called trouble makers are products of America with little or no ties to the country they will be returning to. Governments that are sitting back thinking Mr. Trump’s immigration stance is a Middle Eastern problem, should brace themselves for the exportation of America’s problems to their shores.

Forwarding thinking regimes should get busy crafting legal and diplomatic strategies to slow the pace at which America will dump its rotten apples upon their shores. Those that are in the habit of accepting deportees without resistance need to begin reassessing that policy and build a resistance movement against Mr. Trump’s aggressive deportation stance.

Rising levels of deportation did not start with President Trump. His predecessor was once dubbed the Deporter-in-Chief. This is a problem that has been lurking for some time and now the global threat is coming to a City near you. Regions such as the Caribbean Community that are bursting at the seams with social problems, should use the occasion to renew push for greater social assistance from the United States.

The world didn’t suddenly get to the point where citizens’ revolt became the order of the day. At the turn of the century dissatisfaction among citizens in every region, reached a staggering level. In 2002, the Pew Research Center found citizens’ dissatisfaction with the state of their country in regions such Europe, Latin America, North America, and Asia, consistently jotted above the 80 percent mark.

Trump’s defeat of his establishment opponent, Hilary Clinton, to become the Leader of the free world is heralded as a paradigm shift in global politics. His controversial Executive Order was resisted by a global movement that saw massive protest in the far corners of the world. The taming of his executive excesses by the judicial branch should echo through democracies across the globe. Constitutional democracies near and far, should look within their national boundaries to tame tyrants on loose and brace for impact of The Donald.

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Deferred Action for Illegal Immigrants a Dream or Nightmare?

Vivian M Williams outside a New York Courthouse

Vivian M Williams outside a New York Courthouse

On November 20, 2014 President Barrack Obama took a bold step, hoping  to bring relief to millions of undocumented immigrants in the United States. Using Executive Orders, Mr. Obama implemented what is called the Deferred Action for Parental Accountability (DAPA). The measure touted as a dream for illegal immigrants now looks more like a nightmare.

Deferred Action means there would be a hold on deportation of certain categories of undocumented immigrants for a limited time, luring them out of the shadows into the mainstream. The action is described as an exercise of prosecutorial discretion but in reality it seems moored to humanitarian discretion. Deferred Action for Parental Accountability is intended to keep families to together and avoid the dread and despair caused by uprooting and separating families through deportation.

Deportation is the enforcement of U.S. immigration laws with a harsh and inhumane component for which the United States has long sought to find a balance, air-brushing with a touch of humanity. A New York Times article calling for immigration detention centers to be scrapped, notes that  the system breeds cruelty, and squanders taxpayer money.

Deferred Action for Parental Accountability Remains in Limbo

Despite the fanfare and great promise you have been hearing about, Obama’s Executive Action is in limbo and may never deliver the dream illegal immigrants are expecting. In February 2015 a Texas judge issued an injunction that brought a halt to the program, calling it an executive overreach, and on May 26, 2015 the United States Court of Appeals for the Fifth Circuit decided to keep the injunction in place.  The New York Times reports that the Fifth Circuit judges believe Mr. Obama’s lawyers would ultimately lose in their efforts to defend the president’s actions. This is NOT the end of the matter but it is an indication that Deferred Action for Parental Accountability may never become a reality under Obama’s presidency.

You should bear in mind that the Appeals Court decision is NOT final. A final ruling will come after oral arguments on the merits, scheduled for early July 2015. This will pave the way for a final ruling on the merits in the summer of 2015. As the New York Times points out, a ruling this summer is not likely to be the end of the matter. A Supreme Court challenge is almost certain. A Supreme Court decision is NOT likely before June of 2016. Deferred Action for Parental Accountability would therefore, remain under a cloud of uncertainty for at least another year.

There is also uncertainty about the fate of deferred Action for Parental Accountability after the 2016 presidential election. Republican presidential candidates promise to reverse the executive action while the leading contender for the Democrats, Hilary Clinton, promises to uphold it. Scrapping Deferred Action for Parental Accountability after implementation could result in a nightmare scenario for applicants.

Five Reasons Why Deferred Action Could be a Nightmare

No Guarantee Program Would be Renewed: Deferred Action creates uncertainties for undocumented immigrant since it is NOT a permanent fix. There is no guarantee the program will be renewed or what will happen after it expires.

Fear May Deter Documented Immigrants: Uncertainty may deter undocumented immigrants who have melted into the cracks of the United States from coming forward for temporary relief.

Scrutiny Could Extend to Family Members: Scrutiny of an applicant may result in scrutiny of the rest of the applicant’s family. The Huffington Post points out that   “Parental accountability” could turn into “family accountability.”

Fear of Deportation if Program terminated: There has been NO indication of whether those who are bold enough to step forward under the pending Deferred Action scheme would be granted some form of amnesty if the program is terminated.

No End Game: As attractive as it sounds, Deferred Action does NOT offer an end-game. It is a breath of hope and a moment of pause in the despair of people whose lives are in limbo but in the end it leaves in limbo those who are in limbo.

To ultimately succeed and make a meaningful contribution to the immigration landscape in the United States Deferred Action for Parental Accountability must walk a step further and shine a light at the end of the tunnel.


Vivian M. Williams is a New York State and Federal attorney. For consultation on immigration related matters call 212-561-5312 or email info@vivianwilliamspc.con

U.S. Extends Humanitarian Assistance for Nationals of African Countries Striken by Ebola

Citizens of West African countries that are severely affected by the Ebola outbreak could take advantage of significant immigration relief measures instituted by the U.S. Citizenship and Immigration Services (USCIS) in August, 2014. The Humanitarian measures would allow persons from Ebola ravished West African countries who are currently in the United States to obtain a change or extension of their non-immigrant status even if the authorized admission status has expired. Usually, non-immigrants seeking change or extension of status are required to file their application prior to the expiration of the status for which a change or extension is sought.

The new humanitarian measure means that citizens from Ebola ravished West African nations who have over stayed their time in the U.S. and currently subject to deportation could request extensions or change of status so that they could legally remain in the United States.

U.S. citizens who have filed petitions seeking immigration benefits for Nationals of Guinea, Liberia and Sierra Leone may also request expedited processing of their petitions. Fee waivers for immigration applications may also be requested.

Nationals from the Ebola stricken nations may also seeks expedited adjudication of employment authorization applications. Students from these countries who are in the U.S. on F-1 student visas may also request expedited adjudication of requests for off-campus employment.

National from countries severely affected by Ebola who are in the U.S. are advised to consult competent immigration counsel for an assessment of how the humanitarian measures apply to their individual circumstances.

Domestic Violence is Now Grounds for Asylum in US

The Board of Immigration Appeals, the highest immigration court in the U.S. has has ruled that victims of severe domestic violence in their home countries may be eligible for asylum in the United States.

In reviewing the case of a battered woman from Guatemala the court held that Depending on the facts and evidence in an individual case, “married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal under sections 208(a) and 241(b)(3) of the Immigration and Nationality Act,8 U.S.C. §§ 1158(a) and 1231(b)(3) (2012).

While the decision marks a significant break through, the court’s ruling is NOT surprising since U.S. immigration law has been moving steadily in the direction of recognizing circumstances of spousal and domestic abuse as grounds for asylum claims. The Board of Immigration Appeals has now crystallized the law on this issue with its determination that battered women who are trapped in situations of abuse could be considered victims of persecution.

In a sense, the decision brings a measure of clarity to a contentious legal issue for which there has been great uncertainty and scepticism for close to two decades reaching back to 1995, when federal officials first tried to set guidelines for the immigration courts on whether domestic abuse victims could be considered for asylum. One of the murky issues has been whether domestic violence victims are members of a particular social group for purposes of asylum adjudication.

To establish a claim for asylum in the United States an alien needs to prove a “well-founded fear of persecution” based on race, nationality, religion, political opinion or “membership in a particular social group.” It has now been established that domestic violence victims may be a member of a particular social group.

The case involved the mother of the three minor,Aminta Cifuentes who is a native of Guatemala. Ms. Cifuentes married at age 17, and suffered repugnant abuse by her husband. This abuse included weekly beatings after the respondent had their first child. On one occasion, the respondent’s husband broke her nose. Another time, he threw paint thinner on her, which burned her breast. He raped her.

The court also found that Ms. Cifuentes contacted the police several times but was told that they would not interfere in a marital relationship. On one occasion, the police came to her home after her husband hit her on the head, but he was not arrested. Subsequently, he threatened the respondent with death if she called the police again. The respondent repeatedly tried to leave the relationship by staying with her father, but her husband found her and threatened to kill her if she did not return to him. Once she went to Guatemala City for about 3 months, but he followed her and convinced her to come home with promises that he would discontinue the abuse. The abuse continued when she returned.

Ms. Cifuentes fled from Guatemala in 2005 and subsequently applied for asylum and withholding of removal but her application was initially denied by the immigration court that heard her case. She appealed and ultimately prevailed on appeal.

While the Board of Immigration Appeals’ decision speaks specifically about women from Guatemala it is expected that similar claims could be raised by domestic violence victims from other countries. Victims would however, need to prove that they are trapped in the abusive situation and the government of their native country is unwilling or unable to take meaningful steps to remedy the situation.

Asserting Forced Marriage as Grounds For Asylum

Significant ground is being gained in recognizing forced marriages as grounds for asylum in the United States. There is some grey area in the law on forced marriages but steady progress is being made towards accepting forced marriages as a harm that makes the victims eligible for asylum in the United States. While there is case law that makes it very clear that forced marriages may be grounds for asylum, some federal courts and immigration judges in the U.S. have denied the relief. There is however, evidence that the law is progressing towards wider acceptance of domestic abuses as providing grounds for asylum. Despite the challenges, a person who is a victim of a forced marriage should NOT hesitate to raise this as a grounds for asylum if the need arises.

Forced marriages is receiving consideration as grounds for asylum because as the UN Commission on Human Rights points out, it “can involve threatening behavior, abduction, imprisonment, physical violence, rape, and in some cases, murder”. It can be argued or should be expected that a forced marriage would result in other involuntary conduct such that a forced marriage may result in a life time of forced sex or rape and forced pregnancy.

It is commendable that U.S. law has started moving steadily in the direction of recognizing forced marriages as grounds for asylum. Among the U.S. jurisdictions that have determined that forced marriages may be grounds for asylum are the Second Circuit, Sixth Circuit, and Seventh Circuit appeals courts. The Second Circuit Court of Appeals held that a woman who had been sold into forced marriage is eligible for asylum in the case of Gao v. Gonzalez. The Gao case was cited with approval by the Sixth Circuit in Qu v Holder.

There are other federal jurisdictions in the United States that haven’t quite recognized forced marriage as grounds for asylum. The Third Circuit for instance has been reluctant to take a definitive position on the issue while the Fourth Circuit affirmed a denial of forced marriage as grounds for asylum. A number of immigration judges are also denying relief in such cases.

The resistance to grant forced marriage victims asylum is in large measures based on the argument that forced marriage victims are NOT a cognizable group because it is not particularized or socially visible.In Goa v Gonzales, however, the Second Circuit held that forced marriage constitutes a particular social group which is part of the requirement for asylum. There is therefore, some disparity among courts in the U.S. as to whether forced marriages constitute a particular social class.

Courts in the United States and Federal agencies are however, increasingly leaning towards recognizing forced marriages as a particular social class for purposes of an asylum application. The United States Citizenship and Immigration Service (USCIS) is one of the agencies that recognizes forced marriage as a form of persecution for purposes of asylum. In a 2011 lesson plan used to train asylum officers, USCIS noted “Forced marriage constitutes a human rights violation and may constitute persecution where the applicant experiences it as a serious harm. Way back in 1995 the Office of International Operations issued a memorandum directed to asylum officers in which it listed “forced marriage” as a harm that may make an alien eligible for asylum. The US Department of State also considers forced marriage as a violation of basic human rights.

In light of the developments in this area of the law, victims of forced marriage should NOT shy away from raising it to assert a claim for asylum.

Vivian Williams, P.C. is a New York based law firm that engages in extensive immigration research and litigation. The firm has a vibrant immigration division

New York Considering Citizenship for Undocumented

Lawmakers in New York are seeking to create a path to citizenship for undocumented immigrants living in New York. If granted the new proposal which was introduced in Albany on June 16, would allow documented immigrants who are NOT US citizens and undocumented immigrants living in New York to vote and run for office in New York among other benefits. The proposal requires anyone seeking the benefit to provide proof of identity and New York residency for at least three years during which period state taxes must be paid.

The proposed legislation which is called the New York Is Home Act would provide benefits such as Medicaid coverage, professional license, tuition assistance, driver’s licenses, and state grants to persons who are granted New York citizenship even if that person is NOT qualified for Federal citizenship or U.S. residency.

Any immigration benefit conferred by a state would however, be preempted by federal law to the extent their is a conflict. Even if the long-shot measure is passed any undocumented person who obtains legal New York State residence would still be excluded from federal immigration benefits that he or she is NOT qualified for. For instance, an undocumented person who obtains legal residence in a state would still be governed by federal law which prohibits aliens from working in the United States without a work permit.

Obtaining legal residence in a state is however, expected to significantly bolster the chances of adjustment of status for some categories of persons who are illegally present in the United States. The federal government may also have a harder time deporting an undocumented immigrant who carries New York citizenship. It is expected that an undocumented immigrant who has been granted state citizenship and does NOT have a significant criminal record would have a greater standing and would be a lower priority for deportation enforcement.

Already, several other states are extending immigration benefits to undocumented immigrants in a piecemeal manner. 10 states, already are making driver’s license available to undocumented immigrants and at least 18 states have extended in-state college tuition rates to undocumented high-school graduates.