Community Voices: “The Good Fight”

I was honored to be on Episode 2 of The Good Fight with Ben Wickler, a progressive show about people changing the world.

Friend of this blog, Professor Allegra McLeod at Georgetown Law, had her research on immigrant and criminal convictions covered extensively in an article by The Atlantic on Why Are Immigrants Being Deported for Minor Crimes?

Allegra McLeod, an associate Professor of Law at Georgetown, examined cases like Sylvain’s in a position paper last year for the American Criminal Law Review. She writes that between 1990 and 2010, immigration offenses became the most common federally prosecuted crimes in the U.S. After 1996, when the new laws took affect, approximately one million immigrants were been deported as a result of criminal convictions. Moreover, McLeod estimates that 20 percent of those removed were longtime legal residents, and the majority of their crimes were minor, non-violent offenses.


What’s more, McLeod writes, “a criminal conviction is not necessarily a reliable indicator of undesirability or dangerousness.” For that reason, the heightened attention on immigrants like Sylvain and Khoy would not seem to be in the public’s best interest. McLeod cites Harvard sociologist Robert J. Sampson, who found that increases in immigration normally are “associated with reduced crime rates,” and that “the diversion of resources to criminally prosecuting undocumented immigrants may be particularly misguided from a public safety standpoint.”

The Atlantic delves into why the U.S. is deporting long-time legal permanent residents:

Sylvain is one of thousands of immigrants who have been charged with “aggravated felonies” by the U.S. Immigrations and Customs Enforcement (ICE). The term, first introduced in the 1988 Anti-Drug Abuse Act, applies specifically to immigrants and asylum-seekers: If they’re convicted of any of the crimes in this category, they can be deported and prohibited from reentering the U.S. for 20 years. In 1988, the list of aggravated felonies was limited to serious crimes such as murder and drug trafficking. But Congress expanded the definition over the years, most extensively in 1996.

The two 1996 laws—the Antiterrorism and Effective Death Penalty Act (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA—came in the wake of the 1993 World Trade Center bombing, when Congress felt pressured to streamline new immigration reform. The measures made more than 20 new crimes into aggravated felonies, including counterfeit, perjury, and obstruction of justice. They also reduced threshold requirements from five years to one, meaning that any immigrant issued a one-year prison sentence could be instantly deportable.

Immigrant rights organizers continued to partake in shutdown ICE actions by trying to stop deportation buses even as Congress tip-toed around the question of immigration reform. In Illinois, undocumented organizers and supporters formed human chains to stop their third deportation bus. In Atlanta, more than a dozen persons locked themselves to the gates of the downtown Atlanta ICE office to protest deportations. After partaking in the action, Caitlin Breedlove, Co-director of Southerners on New Ground (SONG), wrote an excellent piece on Queer, Immigrants, All of Us: Not 1 More.

This is not a surprise for most of us but a recently released GAO report on sexual abuse in detention found that Immigration and Customs Enforcement (ICE) under-reported sexual abuse and assault in detention. A staggering 20 percent of detainees who reported sexual assault or abuse are transgender, showcasing the need for direct services for this population.

The Nation carried an excellent article on the ever-expanding U.S.-surveillance and border regime:

In many cases, the US is also training border forces in the use of sophisticated surveillance systems, drones, and the construction of fences and barriers of various kinds, largely in attempts to clamp down on the movement of people between poorer and richer countries. More than 15,000 foreign participants in more than 100 countries have taken part in CBP training sessions since October 2002. It is little wonder, then, that an L-3 Communications sales rep would shrug off the constraints of a shrinking domestic national security budget.

Meanwhile, US borders are functionally being stretched in all sorts of complex ways, even across the waters. As Michael Schmidt wrote in the New York Times in 2012, for example, “An ocean away from the United States, travelers flying out of the international airport here on the west coast of Ireland are confronting one of the newest lines of defense in the war on terrorism: the United States border.” There, at Shannon International Airport, Department of Homeland Security officials set up the equivalent of a prescreening border checkpoint for air travelers.

Whether it is in your airports or, as in Haiti’s case, in the international waters around your country, the US border is on its way to scrutinize you, to make sure that you are not a threat to the “homeland.” If you don’t meet Washington’s criteria for whatever reason, you will be stopped, forcibly if necessary, from entering the United States, or even in many cases from traveling anywhere at all.


With this in mind, the experimental border control technologies being tested along the US-Mexican boundary line and the border-industrial complex that has grown up around it are heading abroad in a major way. If Congress finally passes a new multi-billion dollar border-policing package, its effects will be felt not only along US borders, but also at the edges of its empire.

The frontier isn’t coming down anytime soon. The USCIS released a policy memo re-stating that it would continue to deny priority date retention to age-outs until the Child Status Protection Act (CSPA) issue is resolved by the Supreme Court. It also added that any applications filed for adjustment of status from now on, seeking retention of priority date, would be rejected as improperly filed, and not even held in abeyance. This memo is suspiciously well-timed for the litigation at the Supreme Court, and a post-ad hoc justification for not giving full meaning to the CSPA.

For those of us who watched the Hunger Games today, here is some food for thought on the revolution that the U.S. refuses to start.

I’m Team Haymitch. I think we are just about appropriately jaded, no?

Small But Important Victories for Asylum Seekers in the United States

So maybe I am preaching to the choir. Yet I cannot ignore the fact that two DREAMers (this term refers to undocumented students in the United States awaiting passage of the federal DREAM Act) made their grievances known about the U.S. asylum-granting system in the space of two days, albeit over separate cases.

Quaker posts here about how the Department of Homeland Security opposed asylum in the case of three Brentwood children who had been beaten, exploited and sexually abused by family members in their native Honduras. DHS and its nativist lapdogs like Mark Krikorian, executive director of the Center for [Nativist] Immigration Studies (from now on, we will endearingly refer to it as the CNIS), were set adamantly against this because up until now, asylum was only granted to applicants who showed past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group or political opinion.

“It’s unfortunately part of a trend where asylum is expanding to areas it was never meant for.”

Of course, Krikorian is going to be upset. For someone who believes that granting two people in love the right to stay together is ‘extremism’ you cannot expect anything less ignorant from the CNIS.

So, according to Homeland Security, these three children did not fall into the category of people fleeing persecution due to their membership in a “particular social group.” Accolades are in order for Judge Gabriel Videla for breaking from past trends and ruling that as “members of the family who were physically abandoned by their parents,” the children did constitute a social group. However, a long list of asylum seekers based on inter-family violence await certain rejection since this decision does not set any sort of precedent.

‘Damn Mexicans’ writes about Attorney General Mukasey blasting an Immigration Judge for denying asylum to a woman because “her genitalia already had been mutilated [so] she had no basis to fear future persecution if returned to her home country.” From the LA Times, Sept 23:

“To begin with, the board based its analysis on a false premise: that female genital mutilation is a ‘one-time’ act that cannot be repeated on the same women,” Mukasey wrote. “As several courts have recognized, female genital mutilation is indeed capable of repletion.”

He cited a case where an asylum applicant’s vaginal opening was sewn shut five times after being opened to allow for sexual intercourse and childbirth.

“The board was wrong to focus on whether the future harm to life or freedom that [the applicant] feared would take the ‘identical’ form,” he added.

But Mukasey’s order does not automatically grant U.S. residency to the woman. Instead, the appeals board must now reconsider its earlier ruling.

I would say I am shocked, appalled, infuriated by the drawbacks in our system but alas, knowing that some U.S. Immigration Judges make their decisions based on wikipedia searches, this sort of (il)logic does not surprise me. And it should surprise no one. Also, see this post here about how the United States is in violation of International Law due to its treatment of asylum seekers as criminals.

Such inconsistencies plague the current system of determining asylum that the decision to grant asylum has less to do with the facts of the case and more to do with which Immigration Judge ends up hearing your case.
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Legally Here, Only to be Deported

Harder to Become a Citizen

That is the story 89,683 legal permanent residents of the United States last year, who were denied naturalization and are now facing deportation proceedings.

The CIS is turning down more cases of naturalization than ever before since the 1996 law that increased scrutiny of citizenship applications. In some cases, the Board of Immigration Appeals (BIA) has had to step in and overturn CIS decisions. One notable case is the Matter of Lovo in 2005 where the BIA overturned several CIS decisions against family petitions that included a post-operative trans-sexual and her/his partner. And despite internal memos, transgender and overtly feminine or masculine applicants for citizenship continue to face harassment and inappropriate scrutiny from immigration officials.

Why is it so difficult to naturalize after gaining legal permanent residency? Well, the reason could be as small as forgetting to update your home address and be charged with a felony for ignoring a notice sent by immigration officials. And this “aggravated felony” (yes, unopened and returned mail to the CIS) precludes someone from gaining U.S. citizenship. And before you know it, you are being deported for not updating your home address.  Or you could fail to show up at the INS for being fingerprinted since you are a quadriplegic as in the case of Marin Turcinovic who is now fighting deportation. More cases of former legal residents now fighting deportation can be read at the New York Times here.

Why would someone want to apply for citizenship, given the 12-33% heightened risk of rejection? Without American citizenship, one cannot vote or travel with an American passport. Also, family reunification is expedited with citizenship. Also, citizens cannot be deported for small crimes and misdemeanors and retire with social security benefits, and other tax benefits unlike legal permanent residents.

Yet, given the risks and difficulties of doing everything legally and still ‘getting screwed,’ it is no wonder that many choose to enter and remain illegally in the United States. But the beneficiaries of the DREAM Act did not choose to enter the country illegally and all that the legislation does is give children and young adults the chance to meet some criteria for conditional residency. When the time comes for citizenship applications, some of us would have great difficulties becoming citizens and may just be ordered for removal unless the system of senseless heightened scrutiny is fixed.