Whittling Away Immigrant Rights

“Injustice anywhere is a threat to justice everywhere.”

Martin Luther King, Jr.’s words ring truer than ever on the heels of Attorney General Michael Mukasey’s latest ruling on January 8, 2009. Mukasey issued a ruling concerning appeals to the deportation of three different immigrants. The immigrants appealed on the basis of attorney error, but Mukasey stated that, “neither the Constitution nor any statutory or regulatory provision entitles an alien to a do-over if his initial removal proceeding is prejudiced by the mistakes of a privately retained lawyer.” (Schwartz, John. New York Times)

A case five years ago, In re Assad, established precedence which prompted the Board of Immigration Appeals to routinely allow immigrant appeals on basis of attorney error. However, the Attorney General’s ruling is now prevailing law, barring an appeal.

While some support this eleventh-hour ruling by the departing Attorney General, others argue that immigrants are often preyed upon by extortionary attorneys or have to settle for less-than-competent counsel. The 9^th Circuit said in one opinion last year that often “vulnerable immigrants are preyed upon by unlicensed notarios and unscrupulous appearance attorneys who extract heavy fees in exchange for false promises and shoddy, ineffective representation.” (Schwartz, John. New York Times) I can personally attest to this, having worked on asylum cases where families in removal proceedings were charged $10,000 and then asked for another $12,000, all with nothing to show for it but lost time inside a drab detention center.

Extreme lawyerly error, as determined by the court, is now the only way immigrants can appeal cases based on the quality of their defense. Mukasey negated the most common method of appeals in immigration cases by explaining, “There is no constitutional right to counsel, and thus no constitutional right to effective assistance of counsel, in civil cases.” (Schwartz, John. New York Times)

By the time Obama gets established in office, hundreds if not thousands of immigrants could potentially have been deported due to Mukasey’s new ruling. Mukasey and other supporters of this ruling argue that this appeal was too often a delay tactic by immigrants attempting to stay their removal proceedings. What is certain is this – immigrants’ Constitutional rights shrunk five sizes last Thursday. And when anyone’s civil liberties are threatened, all our rights are. As another of Dr. King’s statements elucidates, we are “caught up in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly affects all indirectly.” For extralegal immigrants, 12 million and growing, this latest legal decision strips Constitutional rights the rest of America takes for granted. Mukasey’s latest ruling creates a dehumanizing distinction between Americans with rights and those without. Until this ruling is appealed, as we should all hope, we must be vigilant that the most vulnerable Americans aren’t exploited under the auspices of new controlling law.

Throughout the chilling allegory of Orwell’s Animal Farm, the Constitution or Commandments by which the animals live slowly change.  Although they begin their society with the fundamental premise that “All Animals are Equal,” it is soon changed to “All Animals are Equal, but some are More Equal than Others.”  This is the essence of Mukasey’s new ruling, that immigrants, like detainees at Guantanamo Bay, have little to no rights because they are not recognized as citizens of these United States.  What held true in Animal Farm will surely hold out here; if we allow some people to be more equal than others, we are setting up a system which necessarily exploits the most vulnerable. We must take heed not to read into the Declaration of Independence the word “citizen” where it has always said, “All men are created equal.”

Arizona: Land of Snowbirds & Coyotes

At this time of year when many Midwesterners head down to the balmier climes of Arizona (like my own grandparents-in-law), it is important to think about this state which has the harshest immigration laws in the U.S.

While immigration enforcement has traditionally always been under the sole control of the federal government (and, in fact, is likely Constitutionally exclusive to the Federal Branch under the Dormant Commerce Clause of Article 1), Arizona has done its best to “help” the Department of Homeland Security. Joe Arpaio, self-proclaimed “America’s Toughest Sheriff,” man who makes his inmates wear pink underwear and sleep outside in tents year-round just to make their incarceration more retributive, is first and foremost a man who hates unauthorized immigrants. Contrary to state and national practice, Arpaio has arrested more than 7,000 extralegal immigrants a year because every single person the police question is asked their social security number and citizenship status. The Maricopa County police force partners with ICE (Immigration and Customs Enforcement), though they are only supposed to ask the citizenship status of prisoners arrested on other charges. While the ACLU reminds immigrants in border towns like Brownsville, Texas, that it is their civil right to refuse to answer such questions without their attorney, Arpaio has taken advantage of these immigrants’ lack of legal expertise, often using his technique to incarcerate passengers of speeding cars and jaywalking pedestrians. (Robbins, Ted. NPR)

Maricopa County Attorney Andrew Thomas has also seized on Sheriff Arpaio’s xenophobia. The Arizona state law, passed in 2005, made it a federal crime to be involved in human smuggling. While the statute was intended to protect extralegal immigrants from the dangers of border-crossing with coyotes, Thomas has used the law to convict some 200 immigrants of “smuggling conspiracy,” turning this law back on the people it was arguably designed to protect. (Kiefer, Michael. The Arizona Republic)

And so, when Governor Janet Napolitano replaces Michael Chertoff and is confirmed as Obama’s Secretary of Homeland Security, she will leave Arizona in the hands of men like Joe Arpaio, Andrew Thomas, and the rogue Minutemen taking vigilante justice into their hands on the southern border. Where Napolitano resisted most of Arizona’s more nativist and radical immigration legislation, her successor Jan Brewer is expected to be more deferential to these xenophobic influences (New York Times). Hopefully, Napolitano will be able to work a top-down shift in national immigration enforcement, cutting the 287(g) program that allows such dangerous collaboration with local officials like Arpaio on federal issues of immigration. Here’s hoping!

The Unilateral Contract for Immigrants

Nate was sitting in a bar a week after an innocent woman was killed by a repeat offender who had gone untracked for an indefinite amount of time. He was sitting in a bar across from a well-known member of the Justice Department of the State of Minnesota. As a Target Public Relations Executive, he says, the problem was piercingly clear. “Man, you’ve got an inventory-tracking problem.”

As a result of this casual evening encounter, the statewide “Suspense File” of criminals with aliases or uncertain whereabouts has dwindled from well over 30,000 to under a couple hundred. Bringing together township, local, and regional governments under the statute 299C.111, this information is finally being efficiently shared and these precincts are realizing their part in the larger community.  Nate brings up this anecdote as proof of the power of benevolent self-interest. “Self-interest is the only sustainable source of benevolence or volunteering. Your goal must be to broaden people’s sense of self-interest to include those around them, their community, their workplace.”

This idea of community is core to the idea of nonviolence. The philosophy of nonviolence only has credence if, as Dr. King said, “we are caught up in an inescapable network of mutuality, tied in a single garment of destiny.” As our communities grow and change, as immigration changes the face of Americans, and as globalization destroys the traditional view of bordered states or bounded communities, this expansive self-interest must cultivate a healthy respect and active work to improve the plight of those near and far.

Nate points out that while politics is the business of solving problems (and so protects itself by never eliminating those problems completely), public policy is the art of dilemma management. Dilemmas, or unsolvable problems, are the realities of life, but it is our duty and responsibility to mitigate the effects of those dilemmas. We will never end poverty, but we can continually work to mitigate the effects of poverty in our Beloved Community.

As Nate preaches an interdisciplinary mode of approaching problems, our nation’s immigration system and its needed reform ring in my mind. Essentially, immigrants have always come to the United States on implied unilateral contracts. Our media and our economy have always lured hard-workers hoping to better themselves and contribute to the American Dream. Since the Alien & Sedition Act of 1798 and the first nation-specific discrimination via the 1882 Chinese Exclusion Act, our nation has been unjustly enriched on the backs of immigrants. Notwithstanding remittances and return migration, immigrants have always contributed more to our economy than they have taken. Despite what popular bombastic talk-show rhetoric may repeat, immigrant populations traditionally work harder than native residents and will generally integrate as much as they are allowed by that nation’s institutions.

For the more than 12 million extralegal immigrants contributing to America right now, they labor without hope of compensation. Since the failed immigration reform bills in 2006, nothing has been forwarded to offer a path to citizenship for hard-working immigrants who are performing everything we expect of citizens. At what point does an extralegal resident earn the right to an American driver’s license or a Social Security Card? How long must someone work 80 hours a week to provide for their family before they are given the chance to naturalize?

If our great nation were to adopt immigration policies more akin to a unilateral contract, then so many immigrants’ good faith demonstrations of citizenship would finally be awarded with the meager promise of the bottom rung in American society. But at least it would be a starting point, an entry level to all the rights and protections of our Constitution and legal system, something more than 12 million people live without as Americans in all but documentation.

As civilization moves forward and borders get more confused, nationalities become more arbitrary, and human capital becomes even more mobile, the nonviolent concept of benevolent self-interest must begin to inform our policies, laws, and community standards. I hope I live to see the day when there are no undocumented and unprotected workers in the U.S., that everyone here would have some legal status and all would be somewhere on the continuum of achieving full citizenship.

The Dawn after the Darkest

Martin Luther King spoke often about the night being darkest just before the dawn. In his book Stride Toward Freedom, King writes about a lawsuit in the Birmingham Bus Boycott as being one such night, “darker than a thousand midnights. It was a night in which the light of hope was about to fade away and the lamp of faith about to flicker. We went home with nothing before us but a cloud of uncertainty” (A Testament of Hope, 455).

April 1 saw Secretary of Homeland Security Michael Chertoff waiving 39 laws to rush the construction of a border fence along our nation’s southern border. April 7, then, marks a return to law and a callback to conscience. Chairman of the Homeland Security Chairman Bennie Thompson (D-MS) convened with 14 Members of Congress to submit an intent to file an Amicus Curiae brief regarding the Defenders of Wildlife case (which would bring the environmental law waivers to Supreme Court). These Congressman urge the Supreme Court to grant certiorari in this case, because they hold that the REAL ID Act’s waiver of laws is unconstitutional.

Grassroots groups like No Texas Border Wall, Border Ambassadors, and the Texas Border Coalition rejoiced today to hear Congressman echo our shock and disbelief at this massive waiver. Thompson joined these men and women in opposition to the REAL ID Act:

• Energy & Commerce Committee Chairman John Dingell (D-MI);
• · Judiciary Committee Chairman John Conyers (D-MI);
• · Transportation & Infrastructure Committee Chairman James Oberstar (D-MN);
• · Education and Labor Committee Chairman George Miller (D-CA);
• · Rules Committee Chairwoman Louise Slaughter (D-NY)
• · Veterans Affairs Chairman Bob Filner (D-CA);
• · Intelligence Committee Chairman Silvestre Reyes (D-TX);
• · Congressman Solomon Ortiz (D-TX);
• · Congresswoman Zoe Lofgren (D-CA);
• · Congresswoman Sheila Jackson Lee (D-TX);
• · Congresswoman Susan Davis (D-CA);
• · Congressman Raul M. Grijalva (D-AZ); and
• · Congresswoman Yvette D. Clarke (D-NY).

Chairman Thompson stated before these legislators that the Secretary of Homeland Security’s use of the waiver was “a direct challenge to Congress’s Constitutional role. The American people entrust Congress to ensure that the laws of this land are faithfully executed not excused by the Executive Branch” (Amicus Curiae). Grassroots organizers should feel proud at their efforts to raise this particular waiver to the national eye, while its use in Arizona went unnoticed and largely unopposed.

Congressman John Conyers (D-MI) might well have walked with the 300 marchers this past March 8-16 from Roma to Brownsville. He understands with us that this wall is an environmental blight, a piecemeal political gesture, and an ineffective strategy. He stated that it is “our responsibility to be stewards of the earth cannot be thrown aside for the sake of an ill-conceived border fence. The Administration exempts itself from a duty to protect the environment, sacred burial sites, and centuries-old farms, but conveniently spares wealthy landowners from the bulldozers” (Amicus Curiae). We applaud the truth of his statement and welcome him or anyone on this Committee to come down to see this Valley, visit the people of Granjeno and Los Ebanos, swim in the beautiful river, walk the trails of endangered ocelots, and witness the wonderful coexistence of both sides of the broder.

Intimating that Congress has been worried about such disregard for law before this, Rep. John Dingell said, “Congress’ efforts to seek justification for this waiver from DHS have been stonewalled, which leads me to believe none exists” (Amicus Curiae). Much like J. Edgar Hoover’s refusal to release proof for his Communist accusations of civil rights leaders like Stanley Levison and Martin Luther King, Homeland Security’s Secretary has voiced the fact that it is unnecessary to explain this action or to study the wall’s effects on the environment and local communities. It does the Valley’s heart good to know that these Congressman and many others understand the gravity of this situation.

And so it is with much rejoicing in my heart that I write this. Though the Secure Fence Act of 2006 will still be a long fight and the REAL ID Act has not yet been overturned, we are moving in the right direction. Though the arc of the moral universe is long, it does bend toward justice. It is bending faster and more distinctly as of today. The conscience of this country and the minds of this nation’s residents are bending toward a place of reconciliation and true progress. We are beginning to communicate – may this nonpartisan committee be just a beginning.

Please write these brave men and women to congratulate them on their stance for Truth. Write your other state legislators to urge them to oppose both the REAL ID Act and the Secure Fence Act.

Civil Rights Opportunity of the Century

When Martin Luther King wrote his famous “Letter from a Birmingham Jail,” he had in mind several prominent preachers, including Episcopal Bishop C.C. Jones Carpenter. When King wrote, “The ultimate tragedy of Birmingham was not the brutality of the bad people, but the silence of the good people,” he was envisioning these men of faith who had their hands on the levers of hundreds of thousands of consciences. While C.C. Jones Carpenter legalistically disagreed with King’s direct action strategies, he was in effect weighing in with support for the segregationists. One of theologian Reinhold Niebuhr‘s best friends, Bishop Will Scarlett, had attempted earlier to rouse Carpenter’s conscience for integration. Scarlett wrote that integration was “…in line with my suggestion years ago that the sight of the great Bishop of Alabama ridden out of his State on a rail because of courageous and enlightened speech, would be one of the greatest events of many years…I still think so: I think you have an opportunity of a hundred years.” (Parting the Waters, 742)

The Secure Fence Act of 2006 and the shockingly un-Constitutional waivers of 30 laws this past week in order to hasten the wall’s construction provide American citizens and residents the civil rights opportunity of the century. The Secretary of Homeland Security’s waiving of border citizens’ rights and due process is shocking in its blatant disregard for morality and basic human rights; however, we must not let this, the largest waiver so far in the construction of what would eventually be a 2,000-mile border wall, enervate us and cause us to falter.

No, this mass waiver and the thoughtlessness of the Secure Fence Act of 2006 must serve as a rallying cry to unite Americans and to call for real immigration reform with solidarity. I must admit that when I first heard of the waiver on Tuesday, I trembled with shock and disbelief. Having walked 126 miles with 300 people but a few weeks before in the No Border Wall Walk here in the Rio Grande Valley, I had felt we had made a difference. UTB Professor Eloisa Tamez’s case had been a partial victory, and the UTB decision on Wednesday, March 19, had made all activists and citizens begin to believe that perhaps the lines of dialogue were open and our leaders were willing to listen to reason and conscience. My hopes were jarred this April Fool’s Day 2008, but I have now come to understand that this is merely a call to action.

And so to oppose the foolhardiness of this Fool’s Day decision, people of faith must say to the fool there is a God and he is on the side of the stranger and the migrant. People of faith, from Baptists and Methodists to Mennonites and Lutherans and Quakers, from Catholics and Unitarians to Jews and Muslims and Buddhists – all these people of faith are united around the idea of protecting the sanctity of human life and defending the rights of immigrants. All people of faith must therefore unite in solidarity against a border wall which threatens the way of life and the basic human rights of the millions who live on both sides of the U.S.-Mexico border. People of faith must join in opposition against a double-layered, 18-foot wall which would be economically destructive, environmentally unconscionable, politically backward, socially devastating, and morally reprehensible. If we do not step up in this moment of opportunity, then Dr. King’s words from prison will ring true.

So often [the church] is an archdefender of the status quo. Far from being disturbed by the presence of the church, the power structure of the average community is consoled by the church’s silent – and often even vocal – sanction of things as they are.

But the judgment of God is upon the church as never before. If today’s church does not recapture the sacrificial spirit of the early church, it will lose its authenticity, forfeit the loyalty of millions, and be dismissed as an irrelevant social club with no meaning for the twentieth century (Why We Can’t Wait, 92)

People of faith, and in fact all citizens, must come together today. The REAL ID ACT holds the potential to waive any number of laws in constructing a border wall. The Secure Fence Act of 2006 stands as a deterrent from positive immigration reform and a detriment to the border region, Mexico, and our entire nation of immigrants, both legal and extralegal. Please speak with your faith leader and urge them to adopt a strong resolution against the border wall. The Church is strongest when it is a check of the State, and our nation’s power imbalance must be righted by people of faith today. It is no longer our place to discuss whether or not this is a church issue or a moral dilemma – the time is ripe to do right right now.

A Jaguarundi Sighting…

    Running along Border Patrol trails in a wildlife refuge area near the Rio Grande, I came upon it. It was a blur at first, but as it scuffled through the cane and underbrush, I am sure of it. I saw the ever elusive jaguarundi.

    Elusive enough that researchers have no official estimate of their wild population in South Texas, these weasel-like cats once roamed the Sabal Palm jungle of the Rio Grande Valley. Now, however, the jaguarundi is fighting for its life. Along with the ocelot, of which there are only 100 left in the South Texas wild, the jaguarundi is one of the endangered animals which a border wall would irrevocably drive out of South Texas and into Mexico. The wall itself would cut off these cats of prey from their source of water and food, while the major disturbance and deforestation associated with a border wall would harm their fragile ecosystem. Animal rights groups, winter Texans, local residents, and Federal agencies have spent millions of dollars procuring wildlife refuge land near the river in hopes of saving numerous endangered species like the jaguarundi I saw darting away into the underbrush yesterday.

 

    The fate of the jaguarundi and other native flora and fauna has inspired many wildlife activist groups to oppose the Secure Fence Act of 2006. Recently, Defenders of Wildlife and the Sierra Club published a public statement stating their opposition to the REAL ID Act which waives important environmental laws (like the 19 waived in the Arizona portion of the border wall). Rodger Schlickeisen, president of Defenders of Wildlife, petitioned the Supreme Court to hear their case.

By granting one government official the absolute power to pick and choose which laws apply to border wall construction, the REAL ID Act proves itself to be both inherently dangerous and profoundly un-American. The issue here is not security vs. wildlife, but whether wildlife, sensitive environmental values and communities along the border will be given fair consideration in the decisions the government makes…We are hopeful that the Supreme Court will take up this case in order to protect the fundamental separation of powers principles enshrined in the United States Constitution. (http://www.notexasborderwall.blogspot.com/)

Sierra Club Executive Director Carl Pope echoed the stance of Defenders of Wildlife, stating,

Laws such as the National Environmental Policy Act and the National Historic Preservation Act are part of America’s enduring legal framework, and no agency or public official should be allowed to ignore them…Our laws have provided Americans a voice in the decision-making process that affects their lives, their human rights and the protection of wildlife; our government must not exempt itself from obeying those laws. (http://www.notexasborderwall.blogspot.com/)

The Sierra Club and Defenders of Wildlife are just a couple of the many groups advocating for the fragile frontera region and campaigning against a border wall.

    It is vital that we oppose this wall on all levels – social, political, economic, financial, and environmental. The national outpouring of disbelief and justified indignation at an environmentally-destructive border wall must continue. I was incredibly fortunate to come across a jaguarundi on one of my many border runs, and I would like my children and my children’s children to be able to run these same gorgeous trails and see what I saw, a sleek jaguarundi scampering off through Sabal Palm trees and towards a beautiful Rio Bravo.