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Immigration



All Reason.com articles with the "Immigration" tag.



Published: Sat, 27 May 2017 00:00:00 -0400

Last Build Date: Sat, 27 May 2017 02:26:50 -0400

 



4th Circuit Exaggerates the Ambiguous Evidence Against Trump's Travel Ban

Fri, 26 May 2017 10:15:00 -0400

Yesterday the U.S. Court of Appeals for the 4th Circuit upheld a preliminary injunction against President Trump's revised travel ban, concluding that the facially neutral executive order probably amounts to an unconstitutional "establishment of religion" because it was motivated primarily by anti-Muslim sentiment. The order "in text speaks with vague words of national security," says the majority opinion by Chief Judge Roger Gregory, "but in context drips with religious intolerance, animus, and discrimination." That context is much more ambiguous than Gregory suggests. Ten judges, all appointed by Democrats, agreed that the injunction should stand. The three dissenting judges, all Republican appointees, argue that the majority improperly went beyond the text of the order, which suspends travel to the United States by citizens of six Muslim-majority countries, to consider statements made by Trump and his associates during and after his presidential campaign. "The danger of the majority's new rule is that it will enable any court to justify its decision to strike down any executive action with which it disagrees," says the dissent by Judge Paul Niemeyer. "It need only find one statement that contradicts the stated reasons for a subsequent executive action and thereby pronounce that reasons for the executive action are a pretext." I find myself disagreeing with both sides in this case, which was brought by six U.S. citizens and lawful permanent residents with relatives in the targeted countries and three organizations that serve Muslims who want to visit or live in the United States. Niemeyer exaggerates the danger of considering a president's public statements about his own policies, while Gregory exaggerates the strength of the evidence provided by those statements. The president has broad authority to decide which foreign nationals may enter the country. The Supreme Court has said an executive-branch decision to exclude a would-be visitor or immigrant should be upheld as long as it is based on "a facially legitimate and bona fide reason." The 4th Circuit reads "facially" as modifying "legitimate" but not "bona fide." Although Trump's travel ban is facially legitimate, the majority says, it is not bona fide, because there's "ample evidence" that Trump acted in "bad faith," that the national security rationale is a cover for religious discrimination. The dissenters read "facially" as modifying "bona fide" as well as "legitimate," meaning the courts have no business considering the evidence that the majority finds persuasive. Either way, it seems unlikely that the plaintiffs will prevail when this case gets to the Supreme Court. Even if the justices agree to look beyond the text of the order, the evidence cited by the 4th Circuit is not enough to establish either that the reason for Trump's order is not bona fide or that the travel ban unconstitutionally discriminates against Muslims (two propositions that amount to essentially the same thing in the appeals court's analysis). As a presidential candidate, Trump openly and repeatedly recommended "a total and complete shutdown of Muslims entering the United States," suggesting that "Islam hates us" and "we can't allow people coming into the country who have this hatred." According to the plaintiffs challenging the travel ban, Trump never really abandoned the idea of using religion to screen travelers. Instead he recast his ban based on religion as a ban based on national origin, at first vaguely referring to countries "compromised by terrorism" and eventually focusing on six (Iran, Libya, Somalia, Sudan, Syria, and Yemen). The executive order says these countries are particularly problematic because they sponsor terrorism or provide havens for terrorists and lack adquate vetting procedures for travelers. But the plaintiffs argue that as far as Trump is concerned, the most salient characteristic of these countries is that their populations are overwhelmingly Muslim. That story is consistent with the public statements cited by the 4th Circuit. But so is another story: Trump reco[...]



Cory Doctorow on Cyber Warfare, Lawbreaking, and His New Novel 'Walkaway'

Thu, 25 May 2017 09:37:00 -0400

Cory Doctorow, author of Down and Out in the Magic Kingdom, Little Brother, and Makers, is a three-time Prometheus Award winner, an honor bestowed on the best works of libertarian science fiction. In his most recent book, Walkaway, the super rich engineer their own immortality, while everyone else walks away from the post-scarcity utopia to rebuild the dead cities they left behind. Reason Editor in Chief Katherine Mangu-Ward spoke with Doctorow about cyber warfare, Uber-style reputation economics, and that most overused and poorly understood of sci-fi themes: dystopia. Edited by Todd Krainin. Cameras by Mark McDaniel and Krainin. Subscribe to our YouTube channel. Like us on Facebook. Follow us on Twitter. Subscribe to our podcast at iTunes. This is a rush transcript—check all quotes against the audio for accuracy. Katherine Mangu-Ward: Do you think that the underlying conditions of free speech as it is associated with dubious technologies, are they getting better or worse? Cory Doctorow: There is the—there is a pure free speech argument and there's a scientific argument that just says you know it's not science if it's not published. You have to let people who disagree with you—and who dislike you—read your work and find the dumb mistakes you've made and call you an idiot for having made them otherwise you just end up hitting yourself and then you know your h-bomb blows up in your face, right? And atomic knowledge was the first category of knowledge that scientists weren't allowed to freely talk about—as opposed to like trade secrets—but, like, scientific knowledge. That knowing it was a crime. And so it's the kind of original sin of science. But there's a difference between an atomic secret and a framework for keeping that a secret and a secret about a vulnerability in a computer system. And they're often lumped together. I was on a family holiday. We were on like a scuba resort in the Caribbean, in a little island called Roatan in Honduras. And there was this family of D.C.-area spooks. Like multigenerational. And Grandpa what had been like with USAID when the tanks rolled on Hungary and in Budapest. And all of the kids worked for undisclosed three-letter agencies. And so we're like sitting in in the pool one day and talking about cyberweapons and cyberwar. Katherine Mangu-Ward: Like you do. On vacation. Cory Doctorow: On vacation. That's what I do. That's my idea of a good time. So the guy said like, "Well what about cyber weapons? Like why shouldn't we develop cyberweapons? Why shouldn't we a cyberwar?" And I said, "There's a difference between a secret bomb and a secret vulnerability in a computer operating system." Because if I invent the h-bomb, it may be unwise. But keeping the physics of the h-bomb a secret does not make Americans more vulnerable to atomic attack than disclosing it. Maybe it would help them at the margins build slightly better bomb shelters. But it's really—it's not the same thing as me discovering a vulnerability in Windows and saying, "It would be great if I could attack former Soviet bloc countries or countries in Middle East or jihadis or drug runners by keeping this vulnerability a secret and assuming that nobody else discovers that vulnerability and uses it to attack the people I'm charged to protect." That mistake calls into question the whole scientific enterprise. Because we really only know one way to make computers secure and that is to publish what we think we know about why they're secure now and see what dumb mistakes our enemies and friends can locate and help us remediate. And so you end up in this place where these vulnerabilities—that you are blithely assuming won't be independently rediscovered by your adversaries and exploited against you and yours—end up getting exploited against you and yours. And not just by state actors but by petty criminals, too. And this is one thing we're learning after the Vault 7 leaks. It's that a lot of those vulnerabilities were independently rediscovered and weaponized not just by governments and by [...]



A.G. Sessions Admits Feds Can’t Make Sanctuary Cities Help Deport Immigrants

Tue, 23 May 2017 13:15:00 -0400

Rejoice, conservatives: Federalism has been affirmed! The Department of Justice and Department of Homeland Security (DHS) have admitted that they can't force local police to enforce certain federal laws. Perhaps not all who self-identify as conservatives will be cheering this news. Yesterday afternoon, Attorney General Jeff Sessions put out a memo acknowledging that President Donald Trump and his administration generally lack the authority to punish so-called sanctuary cities by denying them federal grants. Quick background: Trump campaigned on the promise that as president he would crack down on sanctuary cities, municipalities where authorities generally don't check whether the people who end up in custody or seek government assistance are in the country legally. The conflict: State, county, and municipal governments are under no obligation to help the feds deport illegal immigrants. Immigration and Customs Enforcement (ICE) officials can send local police and jails "detainer" requests asking them to hold on to a deportable immigrant. But this is a request, not a legal order. Cities have developed their own guidelines determining how to respond: Some cooperate, some require warrants or court orders, and some cooperate only if the immigrant has been charged or convicted of serious crimes. The rules vary. In January, Trump signed an executive order threatening to cut off many federal grants to sanctuary cities on the order of the attorney general or secretary of DHS. There is one part of the federal code that does overrule state and municipal regulations in relationship with immigration enforcement. 8 U.S.C. 1373 forbids local governments from implementing policies or regulations that would inhibit communication between local police and federal agencies about a person's immigration status. That's it. It doesn't require that local police even check an immigrant's citizenship status in the first place. But if an officer knows that somebody is in the country illegally, a city (or county, or state) can't stop that officer from informing ICE if the officer wants to do so. It turns out most sanctuary cities are in full compliance with federal law. When the Department of Justice started sending threatening letters to enforce the executive order, only eight municipalities and one county received them. (Granted, the list includes such major cities as New York, Chicago, and Miami.) What Sessions was demanding was that these places prove they're in compliance with 8 U.S.C. 1373. In April a federal judge put Trump's executive order on ice for now. The federal government cannot order the police in cities to simply do their bidding and use grant money as a general bludgeon to coerce compliance. Sessions' memo yesterday acknowledges the limits of federal authority here while looking for a way to salvage the executive order. The memo states that the order is merely meant to make sure that cities are in compliance with 8 U.S.C. 1373 (which, again, is just about communication), and it clarifies that the only grants the government would attempt to withhold from noncompliant cities would be those from the Justice Department and DHS, not any other federal agencies. The Sessions memo also states that the vague term "sanctuary jurisdiction" refers just to cities that refuse to comply with 8 U.S.C. 1373. That means that according to the Department of Justice, Los Angeles—which generally doesn't check to see whether its citizens are in the country legally or illegally—is not a sanctuary city. Remember ICE's March report listing crimes committed by illegal immigrants in various sanctuary cities and counties? Many of those cities and counties no longer qualify as sanctuary jurisdictions under the Justice Department's definition. This doesn't mean Trump or Sessions still won't still refer to these communities as sanctuary cities for political purposes. But based on Sessions' own memos, there are only nine sanctuary jurisdictions in the whole country. That's how things stand at the moment, [...]



These Republican Lawmakers Will Happily Abandon Federalism to Deport More Immigrants

Fri, 19 May 2017 15:05:00 -0400

Texas passed legislation forcing local police to help federal immigration officials detain people for deportation. California is considering legislation that's essentially the opposite. Now some Republicans are introducing federal legislation that overrules the states and dictates how local police officers participate in immigration law enforcement. So, uh, federalism and state's rights? Never mind all that. Rep. Raul Labrador (R-Idaho) has introduced H.R. 2431, the Davis-Oliver Act, co-sponsored by Reps. Bob Goodlatte (R-Virginia), Doug Collins (R-Georgia), Lamar Smith (R-Texas), John Carter (R-Texas), and Ted Poe (R-Texas). The bill has a lot of components to it, including an expansion of what counts as a deportable crime and the inclusion of illegal immigrants in the National Crime Center Database. The bill also essentially attempts to overrule leadership of sanctuary cities or states by granting law enforcement personnel (local police) the same authority to investigate, identify, and detain illegal immigrants as federal immigration officials. The law makes it clear that local police would still lack the authority to deport immigrants on their own. But the law does say: [L]aw enforcement personnel of a State, or of a political subdivision of a State, may investigate, identify, apprehend, arrest, detain, or transfer to Federal custody aliens for the purposes of enforcing the immigration laws of the United States to the same extent as Federal law enforcement personnel. Law enforcement personnel of a State, or of a political subdivision of a State, may also investigate, identify, apprehend, arrest, or detain aliens for the purposes of enforcing the immigration laws of a State or of a political subdivision of State, as long as those immigration laws are permissible under this section. Further in the bill, it mandates that states and cities inform the Department of Homeland Security (DHS) in a "timely fashion" when they've apprehended somebody who is in the country illegally or is deportable. And it provides grants to help law enforcement agencies with implementing these procedures, so long as they put into place a written policy of assisting DHS and Immigration and Customs Enforcement (ICE) in deporting immigrants. In the fight over sanctuary cities (cities that generally don't check on the immigration status of those in custody), there has been quite a lot of confusion over what it means to resist or cooperate with the federal government and ICE on immigration laws. The federal government does not have the authority to force local police officers to assist them or detain deportable immigrants. There is a portion of the U.S. code that forbids states and cities from passing regulations or having policies that prohibit communication between local police and the feds about anybody's immigration status. That's it. It does not require police to assist ICE or even ask about citizenship status. This bill would change and expand the wording of that federal regulation to forbid states and cities from having rules against assisting ICE and DHS in enforcing immigration laws. Under this change the law would be about much more than communication. Cities would be forbidden from telling police they couldn't hold immigrants to hand over to ICE for deportation. It also specifies which federal grants communities could lose if they do not cooperate with the bill. A federal judge has blocked President Donald Trump's executive order threatening grants to sanctuary cities partly because the grants have to have some sort of connection to regulatory processes and the government cannot simply take grant money away in order to coerce certain behaviors. Don't take this to mean the grants referenced are narrowly defined, though. Despite the fact that the bill is all about immigration enforcement, it would potentially threaten any Justice Department or DHS grant that was related to "law enforcement, terrorism, national security, or immigration or naturalization." So [...]



Surprise: Republicans Have a Sensible Plan to Fix Immigration

Mon, 15 May 2017 10:30:00 -0400

President Trump is a man who prefers blunt instruments: He thinks he can solve America's complex immigration issues with a "big, beautiful wall." Meanwhile, two members of his party—Sen. Ron Johnson of Wisconsin and Rep. Ken Buck of Colorado—have come up with a vastly more elegant solution to help the country meet its future labor needs. (Sen. John McCain has signed on as a cosponsor, too.) There are no walls involved—just a plan to let states set up their own guest worker programs. Besides being inherently sound, the great upside of this approach is that it would sidestep the messy politics in Washington that have long made sensible immigration reform well nigh impossible. And we know that it works: It already does in Canada. You wouldn't know this from all the restrictinionist screaming about mass immigration, but the American labor market is very tight, and growing tighter, as the latest jobs numbers show. On the high end, companies need at least twice as many foreign tech workers as Uncle Sam will let them hire. As usual, this year's annual H-1B visa cap for 85,000 high-skilled workers filled up within days of opening. Companies that don't land a visa this year will have to wait a year before they can re-enter the H-1B lottery—by which time the foreign techie they were planning to hire will be working for an Australian or Singaporean company. But high-tech companies are the lucky ones. Matters are far worse on the low-skilled front. Farmers need H-1A visas to hire farmhands. But the requirements for these visas are so onerous and the outcome so uncertain that they are practically unusable. Meanwhile, the demand for seasonal laborers in industries such as construction, landscaping, and hospitality is about four times the annual allotment of visas. The worst part, though, is that by the time federal bureaucrats are done processing the applications, the season is done. Johnson and Kirk want employers to have options beyond the rotten choices Uncle Sam makes available. Their bill, called the State-Sponsored Visa Pilot Program Act of 2017, would give each state a modest 5,000 annual allotment to hire whoever it wants from abroad regardless of skill level, confining the federal government's role to conducting security and health checks. This allotment would be adjusted each year based on economic growth. The foreign workers brought in on these visas would be confined to working in the sponsoring state—or states that form a compact to honor each others' visas — which is a whole lot better for workers than being tethered to the sponsoring employer. States that feel strongly about keeping out foreign workers don't have to participate. And to ensure that these workers don't skip town and illegally take up employment elsewhere, the participating states would require these workers to post a $4,000 bond that would be returned at the end of their term if they stayed put. States that have more than a 3 percent non-compliance rate would lose 50 percent of their visa allotment the following year (and would be required to up their bond amount by $1,000 per visa). Conversely, those that meet the stipulated compliance rate—which won't be hard to do given that only 2 percent of illegal overstays involve guest workers—would be rewarded with a 10 percent increase in their visa quota in subsequent years. These elaborate provisions were included to placate restrictionist states that don't want to be flooded with foreigners. But it's actually overkill, at least if the experience of our neighbor to the north is any indication. Canada implemented a similar Provincial Nominee Program 20 years ago. And even without bonding and other requirements, provinces on average are able to retain 80 percent of the sponsored workers. This is particularly remarkable given that the PNP program hands foreigners' permanent residency—the equivalent of America's green card—and not temporary work visas as the Johnson bill is proposing. T[...]



No Joke: Republicans Have An Excellent Plan to Fix Immigration

Tue, 09 May 2017 12:16:00 -0400

Associating great ideas with Republicans on Capitol Hill might seem like an oxymoron these days. But they have actually produced one. Last (image) week Wisconsin's Sen. Ron Johnson introduced a bill in the Senate Judiciary Committee to give states more authority in recruiting foreign workers. Dubbed the State-Based Guest Worker bill, it would hand each state a 5,000 quota (less in a companion bill sponsored by Rep. Ken Buck (R-Colorado) to sponsor foreigners that best meet their local labor needs. This is a less radical version of Canada's highly successful Provincial Nominee Program that allows provinces to actually sponsor permanent residents, not just temporary guest workers. Even so, it's a giant step in the right direction if for no other reason than that it moves America's immigration conversation away from building walls and creating deportation task forces in the Age of Trump, I noted in my column at The Week.

It'll also sidestep Washington's messy politics that have stymied reform and let states make their own bets about immigrants: Spurn them because they fear a drain on public resources or welcome them because they spur the economy.

Also, I discussed this proposal, which Sen. John McCain also jumped in to co-sponsor at the last minute, at Fox Business' Kennedy Nation:(image) :




The Rockville Rape Case Is a Cautionary Tale for Anti-Immigrant Zealots and Victims’ Advocates

Fri, 05 May 2017 15:06:00 -0400

The state of Maryland is no longer pursuing sexual assault charges against two teenagers who were accused of dragging a 14-year-old girl into the bathroom of Rockville High School and raping her. The accused students, 18-year-old Henry Sanchez Milian and 17-year-old Jose Montano, are reportedly immigrants who entered the U.S. illegally. That made them people of great interest for foes of illegal immigration: Right-leaning pundits cited the pair as evidence that our schools were threatened by armies of illegal immigrant rapists. #RockvilleRape was a popular topic on Fox News, where one guest said "they're raping and killing our people, and that's why Trump won." Breitbart continuously played up the gruesome details, noting that "the suspects allegedly forced a girl to perform oral sex on them in a bathroom stall while they raped and sodomized her, despite her crying out in pain, begging them to stop, police said." Now the case against the two teens has collapsed. According to The Washington Post: Montgomery County State's Attorney John McCarthy said at a press conference that "the original charges cannot be sustained and prosecution is untenable" because of "substantial inconsistencies" from witnesses. McCarthy, who was joined by the county's top leaders, said the decision to dismiss the charges followed an extensive investigation that included additional interviews and a review of medical records, school security videos, and phone and computer records. "As prosecutors we always go where the evidence takes us...regardless of public opinion or political pressures," McCarthy said, without taking questions from reporters. This is a fairly stunning outcome, given the tone of previous reporting on the subject, which suggested the evidence was overwhelming. But sexual assault disputes are often more complicated than they first appear, which is why I cautioned that the teenagers shouldn't be deported without substantial due process. The notion that immigrants commit more violence than other groups is false, and it would have remained false, even if these two teenagers had been guilty. But given that they are not guilty—as far as investigators can tell—right-wing pundits should be eating crow. Of course, they will need to save a plate for the believe-all-victims crowd, whose narrative is also undermined by the outcome in this case. We are frequently told by victims' advocacy groups that no one ever lies about being raped, and when accusations are made, we should automatically trust the accuser. In truth, we don't have very reliable numbers for how many reported rapes are false. The available data suggests that they are uncommon, not that they never happen. The Rockville rape case—which should now be known as the Rockville rape retraction, I suppose—is a reminder of why due process and the presumption of innocence are such important things. They are checks against presuming the worst about people who confirm our biases, whether those biases work against immigrants or just men accused of rape in general. Two other notes. Just because the evidence suggests the sex was consensual does not mean it was appropriate. These were not college students in a dormitory; they were high school students in a public restroom. The school has every right to punish everyone involved. Further, the behavior may be criminal even if it was technically consensual, given the ages of the people involved. The age of consent in Maryland is 16, however, people between the ages of 14 and 16 can legally consent to sex as long as the other party is not more than four years older. Since the state is dropping the sexual assault charges, it appears to be the case that both boys fall within that window. The teens are still being charged with possession of child pornography because they had inappropriate pictures of the 14-year-old girl on their cell phones. She apparently sent the photos to Monta[...]



Texas Lawmakers Vote to Force Local Police Help the Feds Detain and Deport Immigrants

Thu, 04 May 2017 11:45:00 -0400

President Donald Trump, Attorney General Jeff Sessions, and the Department of Justice can't force police officers in Texas to assist them in rounding up and deporting immigrants no matter how loudly they make such demands. But lawmakers in Texas can, and that's exactly what has happened. Wednesday evening the Texas Senate approved SB 4, legislation that pretty much eliminates the concept of "sanctuary cities" within the state by authorizing officials to check the immigration status of anybody they detain (with exceptions for those who are in custody solely because they're witnesses or reporting a crime). The bill had already passed the state's House. Much more importantly that just the immigration checks, SB 4 orders local police and authorities, under threat of civil and criminal penalty (and possible removal from office) to assist federal immigration officials by complying with "detainer" orders when Immigration and Customs Enforcement (ICE) asks them to keep a deportable immigrant in custody until they come and pick him or her up. Cooperation with immigration authorities has been a source of both contention and confusion in this fight. Those who rage against illegal immigration present sanctuary cities—where authorities typically do not check the residency status of people they encounter or detain—as defying the federal government. But in reality, federal law doesn't (and really technically cannot) require state or local officials to assist ICE in efforts to detain and deport people. The "detainer" orders sent to police or prison officials when ICE is attempting to collect somebody for deportation are just requests. Many cities comply. Some don't. Some require warrants or some sort of court order that the targeted individual has committed a crime first. What actually is a violation of federal immigration law is any regulation or ordinance that prohibits local authorities from communicating with ICE or the Justice Department about a person's immigration or citizenship status. Apparently some sanctuary cities have ordinances that forbid this communication. When Sessions and the Justice Department sent out threatening letters warning they would cut federal grants to sanctuary cities, it actually only affected a small number of them (eight cities and one county). Why? These were the only cities with policies that might have actually interfered with communication between the feds and local authorities. It had nothing to do with cooperating with requests from the feds for assistance in deporting people. And in fact, none of the cities targeted by the Department of Justice are in Texas. Not even Austin, where police leaders have openly said they would not comply with detainer orders, has been targeted. This is all despite the fact that Travis County, where Austin is found, was featured heavily in the Justice Department's first report that attempted to shame communities who were not cooperating with the feds. So it's important to understand that what Texas lawmakers have done with SB 4 is to go above and beyond what federal law requires and orders cities and police, with the threat of civil and criminal penalties, to treat detainer requests from ICE as actual orders. Houston's police chief, along with the executive director of the Texas Police Chiefs Association (so note that we aren't talking about just the hippies over there in Austin) warned in a commentary for the Houston Chronicle that this law is political pandering that will actually harm public safety and not help at all: SB 4 requires local law enforcement to take a more active role in immigration enforcement; this will tear down what we've worked so hard to build up. Officers will start inquiring about the immigration status of every person they come in contact with, or worse, only inquire about the immigration status of individuals based on their appearance. This will lea[...]



Don't Blame Trump for Obama's Position on Losing Citizenship Over Fibs

Tue, 02 May 2017 09:59:00 -0400

Yale philosophy professor Jason Stanley is rightly alarmed by the federal government's position that naturalized Americans can lose their citizenship based on trivial misstatements to the Department of Homeland Security. But Stanley wrongly portrays that position, which was staked out by the Obama administration, as a product of Donald Trump's special hostility to immigrants. The mistake illustrates the sadly familiar tendency to frame what should be critiques of government power as complaints about particular parties or politicians. Writing in The New York Times, Stanley exaggerates the differences between Trump's immigration policies and those of his predecessor, who was no slouch when it came to "exiling" people (as Stanley describes it). Still, Stanley correctly notes that Trump's immigration enforcement guidelines have expanded the category of "criminals" given priority for deportation to include pretty much anyone living in the United States without the government's permission. Where Stanley goes wrong is by tying that shift to a case the Supreme Court heard last Wednesday: The administration's hard line on the standard for criminalization has gone so far as to alarm several members of the Supreme Court, as demonstrated during an argument before the Court last week (Maslenjak v. United States), in which a Justice Department lawyer argued that, as The Times reported, "the government may revoke the citizenship of Americans who made even trivial misstatements in their naturalization proceedings," including not disclosing a criminal offense of any kind, even if there was no arrest. To test the severity of that position, Chief Justice John G. Roberts, Jr., confessed to a crime—driving 60 miles an hour in a 55-mile-an-hour zone many years ago without being caught. He then asked if a person who had not disclosed such an incident in his citizenship application could have his citizenship revoked. The lawyer answered, yes. There was "indignation and incredulity" expressed by the members of the Court. Justice Anthony M. Kennedy told the lawyer, "Your argument is demeaning the priceless value of citizenship." Roberts put it simply. If the administration has its way, he said, "the government will have the opportunity to denaturalize anyone they want." The issue in Maslenjak, as I explained last week, is whether you can "procure" citizenship "contrary to law," an offense that triggers automatic denaturalization as well as up to 25 years in prison, by making a false statement that has no bearing on your application. According to the U.S. Court of Appeals for the 6th Circuit, you can. The Obama administration, in a November 23 brief urging the Supreme Court to let that decision stand by decining to hear an appeal, said the 6th Circuit got it right. The offense of "knowingly procuring naturalization contrary to law," said Acting Solicitor General Ian Heath Gershengorn, "does not require proof of materiality." That means even an irrelevant fib—such as lying about your weight, as the government's lawyer suggested during oral argument—can cost someone her citizenship. It is hardly surprising that the Obama administration took that position, since the Justice Department made the same argument at trial and before the 6th Circuit. Federal prosecutors tend to prefer legal interpretations that make their job easier, no matter who happens to be sitting in the White House, and government officials, regardless of party, are inclined to read the law in a way that enhances their own authority. Those tendencies are a strong argument for clearer statutes and for erring on the side of giving the government less power to upend people's lives. They are not an argument against Donald Trump per se. Don't we have enough of those?[...]



Texas Bill Adds Actual Teeth to Immigration Enforcement Demands in Sanctuary Cities

Thu, 27 Apr 2017 14:15:00 -0400

President Donald Trump's efforts to force so-called "sanctuary cities" to comply with federal immigration laws ran aground earlier in the week when a federal district court judge found his executive order threatening city funding likely unconstitutional and blocked it. The courts often take a dim view at the federal government attempting to dragoon states and cities into enforcing federal laws on their behalf. But in Texas, where many Republican lawmakers are more than willing to help deport people who are in the country illegally, there is a bill in play that would actually force law enforcement to do more to assist the feds, including cooperating with detainer requests from immigration officials. In the wee hours of the morning, the Texas House voted, pretty much along party lines, to pass SB 4. The bill would allow the state of Texas to withhold money from cities that decline to enforce federal immigration laws and even provide for the state to charge police officials with misdemeanor misconduct if they refuse to enforce immigration law. There are also potential civil penalties against cities for each violation reaching up to more than $25,000 if the violations persist. But it's worth asking here, "What do we mean by 'enforcing immigration law?'" because here is where the bill really matters. While the Trump administration frequently wants to present sanctuary cities as defying federal law when they refuse to detain illegal immigrants so that federal authorities can round them up for deportation, there is no requirement under federal law to assist (and it would likely be unconstitutional should such a law be crafted). The "detainer" orders from Immigration and Customs Enforcement (ICE) are just requests. In reality, most "sanctuary cities" in the United States are not violating any federal laws at all. When the Department of Justice sent out letters threatening funding for non-compliant communities, they targeted only eight cities and one county. And even that was only because these cities were believed to be out of compliance with a federal regulation that prohibits them from stopping police from communicating with ICE or any federal agency about the immigration or citizenship status of a person. The federal regulation is about keeping lines of communication open. It doesn't require cities or local governments to actually do anything about illegal immigration. In Texas, that all changes under SB 4. This bill specifically requires for law enforcement officials within Texas to comply with detainer orders from federal immigration officials. Failing to do so is what counts as the misdemeanor misconduct. So SB 4 should be seen as a very significant piece of legislation. State lawmakers are passing a bill requiring that local law enforcement officials actively participate in the deportation process by holding suspected deportable immigrants on the demand of the federal government (note that the law doesn't apply if the detained person has proof of U.S. citizenship). The law will also permit police to check the immigration status of not just anybody they arrest but anybody they detain, and critics of the law warned that this will significantly discourage immigrants who are crime victims or witnesses from cooperating with or turning to the police. Read the law for yourself here. Because the version the House passed is significantly different from what the Senate initially crafted, SB 4 has to go back to the Senate for another vote and the two chambers need to hammer out some sort of compromise.[...]



Can You Lose Your Citizenship by Lying About Your Weight?

Thu, 27 Apr 2017 10:31:00 -0400

If you want to become a citizen of the United States, you have to answer a lot of questions, some of which are very broad and many of which seek potentially embarrassing information. In a case the Supreme Court heard yesterday, the U.S. government takes the position that a false answer to any of those questions, no matter how trivial or irrelevant the subject, is enough to strip you of your citizenship years after you were naturalized. That argument encountered a lot of resistance from the Court and prompted a startling confession from Chief Justice John Roberts. "Some time ago," Roberts told Assistant to the Solicitor General Robert Parker, "outside the statute of limitations, I drove 60 miles an hour in a 55-mile-an-hour zone....I was not arrested." Had Roberts done that as a green-card holder seeking citizenship, he would have been obligated to check the "yes" box next to Question 22 in Part 12 of his application for naturalization: "Have you EVER committed, assisted in committing, or attempted to commit a crime or offense for which you were NOT arrested?" According to the government, checking the "no" box could have life-altering consequences. "You say that if I answer that question no," Roberts said, "20 years after I was naturalized as a citizen, you can knock on my door and say, 'Guess what, you're not an American citizen after all.'" Parker confirmed that was indeed what he was saying. "Oh, come on," the chief justice replied. At the center of the case, Maslenjak v. United States, is the meaning of 18 USC 1425, which makes it a felony to "procure" citizenship "contrary to law." In addition to a prison term of up to 25 years, a conviction under that statute triggers automatic loss of citizenship. Divna Maslenjak, an ethnic Serb from Bosnia who became a citizen in 2007, was convicted of violating 18 USC 1425 because she lied about her husband's military service while seeking refugee status in 1998 and did not acknowledge the lie when she applied for citizenship. It is a matter of dispute whether that lie, which violated another law making it a crime for a naturalization applicant to knowingly make a false statement under oath, actually helped Maslenjak become a citizen. But during her trial the prosecution argued that it did not matter. The judge agreed, telling jurors they could convict Maslenjak of illegally procuring citizenship "even if you find that a false statement did not influence the decision to approve the defendant's naturalization." Last year the U.S. Court of Appeals for the 6th Circuit approved that interpretation of the law, parting company with four other federal appeals courts. Yesterday Parker urged the Supreme Court to uphold the 6th Circuit's decision. "What Congress was concerned here with is not what people lied about," he said. "Rather, it was the fact that they lied." Several justices seemed skeptical. "How can an immaterial statement procure naturalization?" asked Ruth Bader Ginsburg. Elena Kagan said it "seems quite natural" to require some causal connection between the false statement and obtaining citizenship. Samuel Alito suggested it was rather odd to say that someone "procured X contrary to law, but the thing that she did had no potential to help her get that thing." Several justices also were dismayed by the sweeping implications of the government's position. Stephen Breyer said it is "rather surprising that the government of the United States thinks that Congress is interpreting this statute and wanted it interpreted in a way that would throw into doubt the citizenship of vast percentages of all naturalized citizens." Noting that the questions posed to would-be citizens "are unbelievably broad," Breyer added his own hypothetical to Roberts' speeding example: "I walked into the immigration hearing with a pocketkni[...]



Federal Judge Blocks Trump Administration from Enforcing Executive Order on Sanctuary Cities

Tue, 25 Apr 2017 17:20:00 -0400

(image) Today Judge William Orrick of the U.S. District Court for the Northern District of California issued a nationwide preliminary injunction that blocks the Trump administration from enforcing President Donald Trump's executive order denying federal funds to so-called sanctuary cities. "The confusion caused by [the executive order's] facially unconstitutional directives and its coercive effects weigh heavily against leaving it in place," Judge Orrick wrote. "The balance of harms weighs in favor of an injunction."

Today's ruling came in the matter of County of Santa Clara v. Trump and in the related matter of City and County of San Francisco v. Trump, a pair of constitutional challenges filed against the president's executive order. In brief, Santa Clara and San Francisco argue that the Trump administration's threat to withhold federal funding from sanctuary cities violates multiple constitutional provisions, including the separation of powers, the Spending Clause, and the 10th Amendment. They asked for the order to be put on hold while their legal challenges proceed in federal court.

"To succeed in their motions," Judge Orrick wrote today, "the Counties must show that they are likely to face immediate irreparable harm absent an injunction, that they are likely to succeed on the merits, and that the balance of harms and public interest weighs in their favor. The Counties have met this burden." The Trump administration is now blocked from enforcing the executive order anywhere in the country while the constitutional challenges move forward.

The Trump administration may not want to hear it, but sanctuary cities are protected by both the Constitution and by Supreme Court precedent. As Justice Antonin Scalia observed in his 2007 majority opinion in Printz v. United States, "the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." Furthermore, as the Supreme Court held in National Federation of Independent Business v. Sebelius (2012), the threat to withhold existing federal funds from a state in order to coerce that state into doing the bidding of the federal government is an unconstitutional act of "economic dragooning." Finally, it should be noted that the federal spending power is located in Article I of the Constitution, among the enumerated powers of Congress; it is not located among the enumerated powers of the president in Article II.

Judge Orrick's opinion in County of Santa Clara v. Trump is available here.




Justice Dept.’s Threatening Letter to Sanctuary Cities Is Less Than It Seems, and That’s Good

Fri, 21 Apr 2017 15:15:00 -0400

The Department of Justice has sent threatening letters to eight American cities and one county warning them that they face having their federal grants withheld because of their behavior as "sanctuary cities"—but it's not exactly how it might appear. President Donald Trump famously campaigned on a promise to eject illegal immigrants and to go after the cities that were protecting them. This has in turn prompted a massive effort by pro-immigration forces in major cities to resist the federal government's deportation efforts. So let's be very clear what's going on, because both sides have good political reason to overemphasize what's happening in order to appeal to their voting bases: These letters are not demanding that police and municipal governments assist Immigration and Customs Enforcement (ICE) in rounding up illegal immigrants subject to deportation orders. The federal government cannot force cities to help them enforce immigration laws. It's important to understand that, just as they can't force cities to enforce the federal ban on marijuana possession or consumption. In both cases, federal officials can (and frequently do) go into these cities and enforce these laws themselves. Through the use of detainer requests, ICE can ask police, prisons, and jails to hold immigrants they believe are subject to deportation orders, but these are requests. There is, however, a federal immigration regulation that this small group of cities may be violating. Federal regulations forbid any state or local government from prohibiting its employees from communicating with the feds about any person's immigration status. So, for example, if a local police officer arrests somebody he knows is an immigrant in the United States illegally, he cannot be prohibited from passing that information along to ICE. The targets of these letters are cities—New Orleans, Miami, Chicago (and Cook County), Philadelphia, Las Vegas, Milwaukee, New York City, Sacramento (California)—that have policies or ordinances that prohibit this communication. An inspector general's report written back when Barack Obama was president determined these cities may be out of compliance with the law. The Justice Department is ordering them to make sure they are following this one code if they want to keep getting grants. The regulation also doesn't require the local governments even keep track of the residency status of people living within their boundaries. "Sanctuary cities" get their identities partly because officials simply refuse to determine whether the people who live there are legal residents of the United States during interactions or arrests. So even those rules won't change. But in the event local law enforcement officers actually do know the immigration status of a citizen, the city or county can't stop him from communicating that information to the feds. The Justice Department put out a short press release announcing the demand that the affected cities and county prove their compliance with the law. There's a bit of "editorializing" in the press release: Additionally, many of these jurisdictions are also crumbling under the weight of illegal immigration and violent crime. The number of murders in Chicago has skyrocketed, rising more than 50 percent from the 2015 levels. New York City continues to see gang murder after gang murder, the predictable consequence of the city's "soft on crime" stance. And just several weeks ago in California's Bay Area, after a raid captured 11 MS-13 members on charges including murder, extortion and drug trafficking, city officials seemed more concerned with reassuring illegal immigrants that the raid was unrelated to immigration than with warning other MS-13 members that they were next. The punchline [...]



The Bogus Claims Behind Trump's H-1B Crackdown: New at Reason

Thu, 20 Apr 2017 08:29:00 -0400

There was a time when Republicans were only against illegal immigration of the Hispanic variety. President Donald Trump's executive order cracking down on H-1Bs today shows that those days are gone. Now it is open season on all immigrants — legal, illegal; low-skilled, high-skilled.(image)

Immigration foes have used stories about Disney and Southern California Edison to argue that companies use the H-1B visa program to replace American workers with cheap labor, not obtain specialized talent that they can't find at home. But National Foundation for American Policy's Stuart Anderson shows that there is more to the Disney and Edison cases than meets the eye. Moreover, these fallacious examples fly in the face of credible studies that debunk restrictionist claims that foreign professionals hurt American wages and jobs. He writes:

The central flaw in arguments alleging a negative impact on native employment due to the presence of foreign scientists and engineers is that they are based on the "lump of labor fallacy" – or the notion that there is a fixed number of jobs in the economy. Hence, the argument goes, if you increase the number of workers, you get lower wages and rising unemployment. But high-skilled tech workers grow the economic pie by boosting productivity, encouraging more investment and increasing entrepreneurship. Overall, they create jobs.




President Trump's Executive Order Targeting Foreign Techies Will Hurt American Companies and Workers

Thu, 20 Apr 2017 00:15:00 -0400

Immigration authorities opened up the annual H-1B visa lottery for American companies that want to hire foreign tech professionals on April 3. And this week they announced that they received 199,000 petitions—or more than double the number allowed. Clearly, current law fails to meet the needs of American employers. But instead of relaxing this program as would befit a president who promised to remove the regulatory handcuffs on American businesses, President Donald Trump has issued a "Buy American, Hire American" executive order that will pass new regulations making it even more difficult to recruit high-skilled foreign workers—never mind the overwhelming evidence that these workers help, not hurt, American jobs and wages. The H-1B cap is reached every year because the annual 65,000 limit—0.04 percent of the U.S. labor force—was set in 1990. Since then, technological advances like the World Wide Web and smartphones have turbocharged the demand for high-skilled technical labor. "Mobile app developers" -- a highly prized job today—didn't even exist 15 years ago. However, when companies recruit for tech talent at U.S. universities, they find Americans, to be sure—but the vast majority consists of international students, who make up an astounding 77 percent of the full-time graduate students in electrical engineering and 71 percent in computer science. An H-1B visa is often the only way for these students or high-skilled foreign nationals educated abroad to work legally in America. That means new restrictions on H-1B visas would likely block the only feasible means for any foreign-born computer specialists, engineers, doctors or scientists to work in the United States. Despite this, several conservative bills in Congress are trying to squash even this meager program. A bill co-sponsored last year by Sen. Ted Cruz (R-TX) and now-Attorney General Jeff Sessions wanted to force employers to pay well above market rates for these tech professionals and also require international students from U.S. universities to work for 10 years outside the United States before they could work in America. Another bill co-sponsored by Sen. Charles Grassley (R-Iowa) would require companies to prove to labor authorities that they tried to recruit an American before hiring a foreign national, which will expose employers to massive legal liability for every such hire. Meanwhile, the Trump administration's pledge to build a wall around excessive regulation has a giant hole in it when it comes to immigration, as his executive order directing federal agencies to implement new rules and policies discouraging the hiring of H-1Bs shows. Part of this will no doubt involve stepped up site visits by Department of Labor investigators to companies with H-1Bs in their employ. "The moves seemed designed to appease President Trump's supporters, who urged him to make good on campaign promises to eviscerate the H-1B program," reported the Washington Times. To discredit the hiring of all high-skilled foreign nationals and set the stage for draconian legislative and regulatory measures, Congressional critics and anti-immigration activists have skillfully publicized stories alleging that companies lay off U.S. workers and replace them with H-1B visa holders. However, in these stories—and the same ones involving Disney or Southern California Edison have received repeated media attention, including recently on 60 Minutes—what is actually happening is that companies are focusing on their primary business line and contracting out functions considered either non-essential, underperforming or technologically out of date. Everyone sympathizes with the U.S. workers at Disney and Southe[...]