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!

Immigrants did not cause the Economic Crisis, but they can help us rebuild

The Anti-Defamation League recently published a thoughtful article warning all of us to be careful in assigning blame to any one group of people (Nathan, Martin. Houston Chronicle)  The ADL’s article focused on Susan Carroll’s Houston Chronicle series which highlighted problems in our criminal system.  While study after study like that of Harvard Sociology Professor Robert Sampson has shown that recent immigrants are far less likely to commit crimes (45% less likely than 3rd generation Americans in his study), xenophobic rhetoric abounds on blogs, comments, and media posts concerning immigrants.

What’s more alarming, yet inextricably linked to such polarizing rhetoric of hate and “otherness,” are the increasing hate crimes against Latinos and other immigrant groups. The Houston Chronicle article highlighted FBI statistics that show from 2005-2007 hate crimes against Latinos grew from 475 to 595.  Indeed, several high-profile hate crimes against immigrants have occurred in New York City alone, that emblematic heart of the American melting pot.  Ecuadorean brothers Jose and Romel Sucuzhanay were brutally beaten in Bushwick, Brooklyn, on Sunday, December 7, by three men shouting obsenities which were “ugly, anti-gay and anti-Latino” (McFadden, Robert. New York Times).  On November 7 in Patchogue, NY, seven teenagers fatally stabbed 37-year-old Marcelo Lucero, an Ecuadorean returning from his late shift (Finn, Robin. New York Times).

And so, as the economy continues its downspin and people, unable to wreak justice on Fannie Mae and Freddie Mac, scan the nation for a proper scapegoat, preferrably one without a voice and lacking human rights.  It is this nativism fueled by the economic crisis which propels hate speech and hate crimes, as well as xenophobic legislation like New IDEA (Immigrant Deduction Enforcement Act), an attempt to massively expand the role of the IRS in aiding the Department of Homeland Security to crack down not on employers but primarily on unauthorized immigrants. Iowa Congressman Steven King, seemingly unfazed by the destruction the Postville ICE raid has caused his own small-town constituents, touts this bill he introduced as a means of wresting jobs from the immigrants holding 7 million jobs (as per the PEW Hispanic Research Center) and distributing them to the 9.5 million jobless Americans. While his Robin-Hood techniques may sound appealing in a time of economic depression, we cannot forget that immigrants are people too; this is not merely redistributing wealth or opportunity – this is redistributing people.

As we head into the New Year, looking back on our mistakes of 2008 and crafting new resolutions to see us through 2009, blame-shifting will help none of us.  No, we must turn from this simple scapegoating and look at real solutions which can help us all rather than profiting some at the expense of the most vulnerable (isn’t this the sort of predatory business model that caused the economic crisis in the first place?).  Immigrants didn’t cause the economic crisis, but they can sure help us rebuild.  Why? Because they are us and we are them; we are all in this thing together.

The ABC of Agriprocessors

Nearly seven months after their Postville processing plant was raided by Immigration Customs and Enforcement (ICE), Agriprocessors pled not guilty on all charges Friday, December 5, 2008. Their lawyer, who phoned in to make the plea, did not mention the plight of the 389 unauthorized immigrants or their families (http://www.desmoinesregister.com/article/20081205/NEWS/81205033). He didn’t highlight the fact that these hard workers were steered into cattle barns and misled to believe that if they admitted all charges against them the process would somehow be easier and more lenient. Agriprocessors’ attorney didn’t mention their Nebraska plant that closed down or the Chapter 11 bankruptcy the company filed on November 4 to “reinvigorate the company,” according to their bankruptcy lawyer Kevin Nash. (Preston, Julia. New York Times)

The saddest aspect of Agriprocessors’ court proceedings is that they are being tried for the wrong crimes. Agriprocessors will face a jury trial on January 20 on the charges of “harboring and aiding undocumented workers, document fraud, identity theft and bank fraud.” (http://www.postbulletin.com/newsmanager/templates/localnews_story.asp?z=7&a=374130) They are not awaiting judgment for their notorious safety violations, underpayment of their immigrant workers, and mandatory unpaid overtime, all of which community members like Rev. Paul Oderkirk of Saint Bridget’s Catholic Church had been decrying for years. They are on trial for “aiding” unauthorized” workers that they intentionally recruited and then kept illegal so as to have a docile, underpaid workforce. They are on trial for helping immigrants rather than for the fact that they worked to keep their workforce illegal because unauthorized workers can’t unionize or lobby for better conditions. They are being prosecuted to the full extent of the law for helping immigrants but not even being chastised for filling the deported immigrants’ positions with Latino workers scooped out of Texas homeless shelters this past June (http://immigrationmexicanamerican.blogspot.com/2008/06/breaking-news-agriprocessors.html).  This kosher meatpacking plant that boasted revenues of $300 million will not be sitting before the jury for its criminal hourly wages or its exploitation of the most vulnerable community within our borders. No, they are on trial for “harboring and aiding undocumented workers.”

It is deeply saddening that immigrants are criminalized so deeply in this country that everyone associated with them becomes guilty by association rather than by exploitation. When people are made criminal by unjust laws, the worst crime imaginable is aiding and abetting them. Harking back to the Alien and Sedition Acts of 1798 which were repealed just a few years later in the infancy of our nation, these laws are even more shameful in that they prosecute rather than protect the most vulnerable, unrepresented sector of American society, the 12 million extralegal immigrant workers living within our borders with little chance of effectively working toward citizenship.

14 days before Agriprocessors’ jury trial, ABC will be airing its new reality television show “Homeland Security USA.” This new series which profits off the often-fatal journey of immigrants through the most dangerous parts of desert borderland seems perfectly congruous with Agriprocessors’ charges of harboring and aiding extralegal immigrants (Stelter, Brian. New York Times). Something is fundamentally flawed in the United States when we are entertained by the criminalization, hunting, and deportation of people whose only crime is the desire for work and enough money for their family. Both ABC and Agriprocessors’ board of directors share this understanding and have figured out ways to profit from others’ painful, life-threatening choice to seek work in America.