Immigration, and the Health Care Debate: Part 2

Roger Algase's blog yesterday asked the question: "What does President Obama's position on health care reform have to do with immigration?" 

An excellent question Roger, because if you recall immigration reform played a key part in the health care debate.  Specifically, the Hispanic Caucus, lead by Congressman Luis Gutierrez (D-Ill), threatened to withhold their vote for Health Care Reform because it contained xenophobic anti-immigrant provisions.

His exact words: "I would find it extremely difficult if not impossible to vote for any measure that denies undocumented workers health care purchased with their own dollars."

The good Congressman ultimately pledged his support for the President's signature legislation in return for an empty (and now broken) promise from President Obama that he would meaningfully address immigration reform...  and no, the President's meeting with a pop star and a desperate housewife should not in any way be interpreted as satisfaction of his debt to the Caucus.

As such, immigration reform minded Democrats were deceived into relinquishing their one legitimate bargaining chip to force the President's hand to effectuate an end to the rampant deportations that have hallmarked the Obama Presidency.

In this regard, in the Senate during the lame duck session, five Democrats fillibustered the DREAM Act: Kay Hagan of North Carolina, Mark Pryor of Arkansas, Ben Nelson of Nebraska and Montana Democrats, Jon Tester and Max Baucus.  

To add insult to injury, Sen. Joe Manchin (D-W.V.) skipped the DREAM Act cloture vote to attend a Christmas party.

Merry Christmas DREAMers.

Parenthetically, three Republicans crossed party lines in favor of the DREAM Act, enough to get it through if the Democrats where whipped in line.

So you may ask, what fallout resulted from Freshman Senator Manchin's act of indifference to DREAM? Well, appointments to the Senate Energy and Natural Resources Committee, the Senate Armed Services Committee, and the Senate Special Committee on Aging of course.

Can you name one Senator that even lost a committee appointment over their failure to vote for DREAM?

I know I can't.

This was the last chance that the Democrats had to get immigration reform through Congress, and they couldn't force unanimity from their members over something as obvious as the DREAM Act.  They certainly got their votes for health care though, by beg, borrowing, and most importantly, stealing from the immigration reform caucus.

PATHETIC.

Amnesty International Report: Obama Administration Committing Human Rights Violations through Immigration Enforcement

Amnesty International has released an 86-page report entitled: In Hostile Terrain: Human rights violations in immigration enforcement in the US Southwest that examines the human rights violations perpetrated by the Obama administration through immigration enforcement at the southern border and in the interior of the United States. 

They research conditions in Texas and Arizona throughout 2010 and 2011, interviewing individual immigrants and their families, survivors of abuse, advocates, activists, service providers, academics, public officials, and medical examiner personnel.

They also interviewed federal and local law enforcement officials at the US Department of Homeland Security’s Customs and Border Protection (USCBP), Harris County Sheriff’s Office, Houston Police Department, and Tucson Police Department.

Finally, they reviewed media reports of incidents involving human rights violations of immigrants, documenting current and pending federal and state legislation relating to immigration enforcement and immigrants’ rights.

The following is a sampling of the examples of human rights violations perpetrated by the Obama administration as set forth in the report:

• Racial profiling and discrimination based solely on ethnic or racial characteristics, such as skin color, accent, ethnicity, or a residential area known to be populated by a particular ethnic group;

• Latinos and members of other communities of color along the border are disproportionately targeted for stops, identity checks, and searches for the purpose of immigration enforcement;

• ICE agents are doing linguistic profiling by asking people waiting for the buses basic questions in English. If the person can’t answer in English, the agents ask for papers;

• Officers are making inquiries about immigration status without 287(g) authority or training to assess someone’s immigration status. Or they will assume that a person is undocumented merely because they don’t speak English.

• U.S. citizens of color are being adversely impacted by discriminatory practices of racial profiling;

• Immigrants are being abused during detention and deportation;

• Allegations of excessive use of force during apprehension, detention and deportation;

• Deprivation of the right to counsel and due process protections are being denied through verbal intimidation;

• Thousands of children will never be reunited with parents detained or deported by ICE because there are no protocols to keep families united;

• Survivors of crime are being denied access to justice;

• Trafficking survivors are never told of the immigration remedies available to them; and

• DHS enforcement interrogations often take place without defense counsel being present.

I have just started researching Third Party candidates for President in 2012.  I suggest that you all do the same.

In the Presidential Election the Lesser of Two Evils is Still Evil

I had a very spirited exchange in the comment section to my friend and colleague Roger Algase's recent blog.  Roger is an excellent attorney, and much smarter than I, so I appreciate the opportunity to voice a response to his always well written blogs.  We mostly agree on both the facts and the law, but there appears to be one sticking point where we simply can't get over the hump.  It relates to the upcoming Presidential election.

I'll take the liberty of paraphrasing Mr. Algase, and Roger please feel free to chime in with a response, as your thoughts are always welcomed and appreciated.  In sum, Mr. Algase is throwing his support behind President Obama's reelection campaign as a result of his justifiable fears that the eventual Republican nominee will be adversely detrimental to the cause of immigration reform, and most importantly, immigrant rights.  Of this there is no disagreement.

Our disagreement is principally over whether it is short sighted to turn our backs to President Obama, akin to throwing the baby out with the bathwater.  I argue that, to the contrary, supporting President Obama's reelection will in the long term retard the advancement of immigration reform and immigrant rights, that President Obama's administration is the one making the water dirty, and that they all need to be thrown out, dirty suds and all.  

Although Mr. Algase points out that President Obama is the lesser of two evils (this point is debatable), this does not in any way detract from the fact that Obama's immigration enforcement and deportation policies ARE EVIL.  

Should Obama win reelection immigration reform will continue to be ignored, and the Administration will deport another million immigrants. As such, supporting Obama's campaign for his second term sends the message to the Democratic party that they can continue to turn their back to immigration reform, while ignoring the torture, rape, abuse, and in some instances murder of immigrants unlawfully detained in immigration detention, while the Administration advances the goal of deporting more immigrants than at any time in history, enforcing racist and homophobic policy positions in the process.

Because the Democrats (rightly) believe that the immigration reform vote will come regardless of their (in)action(s), there is no motivation for the party to champion the issue after the election.  The only way that this reality will change is if the Democrats lose the CIR vote to a third party candidate, and subsequently the Presidency in 2012.  If this does happen, in 2016 the Democrats will finally be forced to understand the significance of effectuating fair and humane immigration reform, championing the issue, and putting an end to the destruction of hundreds of thousands (millions) of families through deportation, while taking meaningful steps to clean up the abuses permeating the immigration enforcement and detention system.

That is called foresight.

If Obama wins reelection while garnering the immigration reform electorate, I can tell you with 100% certainty that there will be another million+ immigrants deported, and we will be no closer to immigration reform than when he promised to address the issue in his first 100 days in office.

The point being, supporting the Deporter in Chief enables this President, and his party to ignore the very issue that he absolutely needs to maintain the office.

Respectfully, I implore all of you to stop being the enabler.  Do not support this President.

If it means that we will see no immigration reform in the next four years under a Republican administration, so be it, because I guarantee you one thing, we won't ever see it in an Obama Presidency, and there is no possible way that a Republican can do worse than what we have seen under Obama.

To be blunt, Obama has done more damage to immigrants, the cause of immigration reform, and to the Constitution than any President in history, and that specifically includes George W. Bush.

Needless to say, labeling Obama as a disappointment, or a failure, is the understatement of the millennium.

So I ask you this, how many immigrants need to be rounded up, and thrown into solitary confinement, where they are raped, tortured, abused, and murdered before the issue is no longer an inconvenience to the goal of reelecting a man merely because he is the lesser of two evils.

Vote third party in 2012, and give a voice to the voiceless.

Report: Obama Administration Fails to Clean-Up Deeply Flawed Immigration Detention System

NYU's School of Law Immigrant Rights Clinic in cooperation with the New Jersey Advocates for Immigrant Detainees has issued a report about the Obama administration's failed efforts to reform the immigration detention system in Essex County New Jersey.  They reviewed two facilities, Delaney Hall and the Essex County Correctional Facility (ECCF).  They found that both detention facilities fail to meet the bare minimum of humane treatment and due process. 

The report also found that not only has the Administration broken their 2009 promise to meaningful review the system, they have taken steps to expand it.

Here are the key findings of the report:

• The current conditions for immigrant detainees in Delaney Hall and ECCF do not fully comply with the ICE Performance-Based National Standards for 2008 or for 2011.  

• Although the purported purpose of immigration detention is not punishment but rather ensuring the appearance of immigrants at removal proceedings, the lack of liberty and conditions of immigrant detainees in Essex County, NJ mirror those of inmates in prison facilities for serious crimes.

• In 2011, the number of immigration detention beds in Essex County increased by 150 percent from 500 to 1,250 detainees per day. Essex County now holds over half of all immigrant detainees in New Jersey.

• Immigrant detainees in Delaney Hall and ECCF are not treated with the human dignity and respect they deserve. Many reported verbal abuse and mistreatment from guards and jail staff.

• During 2011, immigration detainees in ECCF filed 158 written grievances. These grievances included allegations of mistreatment from ECCF staff, inadequate access to special diet meals, and delayed or unanswered requests for medical attention.

• According to written grievance records, ECCF has been in violation of at least five detention standards in 2011 concerning medical attention, food service, religious services, access to legal counsel, and visitation services.

• From October 2011 through December 2011, detainees in Delaney Hall filed 46 written grievances. These included allegations of mistreatment from Delaney Hall staff, cold dormitories and inadequate blankets during the winter, and unacceptable food quality. 

• According to written grievance records, Delaney Hall has been in violation of at least five detention standards in 2011 concerning medical attention, food service, religious services, access to legal counsel, and visitation services.

• In both ECCF and Delaney Hall, violations of detainees’ rights to due process and access to justice were reported including obstacles to detainees contacting their attorneys after transfers and the negative impact of video conferencing on attorney-client confidentiality and due process rights.

• These conditions underscore the need for oversight of ECCF and Delaney Hall, and lend support to the community’s criticism of the lack of transparency through which ICE, Essex County, and Community Education Centers contracted to expand detention in these facilities.

So here is the bottom line, not only has the Obama administration completely failed to address the acknowledged problem that immigrants are being abused in substandard detention facilities, but their deportation policies have jammed more immigrants into the system than at any time in history. It should be noted that a significant percentage of the individuals being detained by the Administration have no criminal grounds of removability, and have been merely charged with civil immigration violations.

Another epic fail from the office of the Deporter in Chief.

Supreme Court Reaffirms Right to Competent Counsel During Plea Negotiations

The United States Supreme Court has issued two decisions (Missouri v. Fry, and Lafler v. Cooper) that reaffirm the constitutionally protected right to effective assistance of counsel in the criminal context during plea negotiations.

Both cases cite Padilla v. Kentucky, where the Court ruled that an attorney must inform their non-citizen client of the risk of deportation for consideration in taking a criminal plea, or the plea will be rendered constitutionally deficient.  

In Missouri v. Fry the Court held that: "The Sixth Amendment right to effective assistance of counsel ex­tends to the consideration of plea offers that lapse or are rejected and that that right applies to “all ‘critical’ stages of the criminal proceedings.” No. 10–444. Decided March 21, 2012.

In Lafler v. Cooper the Court held that: "Where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed." No. 10–209. Decided March 21, 2012.

We are coming up on the two-year anniversary of the Court's decision decision in Padilla v. Kentucky (March 31, 2010).  Since the decision, there has been a split in the Circuits over whether the Court's ruling applies retroactively.  

The Court addresses retroactivity in Lafler stating that the decision will not open the "floodgates to litigation," that the system will not be "overwhelmed," and that defendants will not receive "windfalls" as a result of the decision citing Padilla.

The Tenth Circuit and Seventh Circuit have ruled that Padilla doers not apply retroactively.

The Third Circuit has ruled that Padilla does apply retroactively.

Due to the fact that the Court's most recent decisions prominently cite Padilla, I think it is safe to say that the Court will ultimately clarify their position by finding that a non-citizen has a guaranteed right to effective assistance of counsel during plea negotiation, and that a constitutional violation cannot stand regardless of when it occurred.

What I find amazing is the length that certain Courts will go to undermine a non-citizen's Constitutionally protected right to counsel.

Obama Administration Seeking to Destroy Another Gay Couple Through Deportation

NBC news reports that the Obama administration is unwilling to recognize the validity of the marriage of Brian Willingham and Alfonso Garcia, by continuing to enforce the Defense of Marriage Act (DOMA).

The couple has been together for ten years, marrying last August in the State of New York where same sex marriages are legally recognized.  Apparently, they aren't recognized in the White House.

A routine traffic stop has resulted in the institution of removal proceedings against Alfonso.  An immigration court hearing is scheduled this afternoon in San Francisco.

Now that this case is receiving press coverage I'm sure that the administration will make Alfonso one of the lucky 1%ers to qualify for a favorable exercise of prosecutorial discretion.

Nothing like bad press in an election year.

UN Report: Obama Administration Allegedly Tortured 16 Gay and Transgender Immigrants Held in Immigration Detention

The United Nations Human Rights Counsel has issued a shocking report alleging that the Obama administration has tortured 16 gay and transgender immigrants detained in U.S. immigration detention facilities, charging direct violations of articles 7 and 12 of the Convention against Torture. The 81 page report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, was released on February 29, 2012.  

Apparently, the Special Rapporteur notified the Obama administration of the allegations of torture and abuse all the way back on August 19, 2011, but the Administration declined to respond to the communication. 

As a result, a demand was made in the released report for the Obama administration to immediately investigate the conditions of detention, solitary confinement and ill-treatment of the immigrants, and to prosecute and punish the individuals in the administration that are allegedly responsible for torturing immigrant detainees.

Heartland Alliance’s National Immigrant Justice Center (NIJC) was responsible for exposing the administration issuing the complaint that immigrant detainees were victims of sexual abuse, solitary confinement and the withholding of HIV medication and hormone therapy.

Examples include: 

• A guard sexually assaulting an immigrant detainee that was locked in solitary confinement;
• Guards refusing to unshackle an immigrant detainee during a medical visit disrupting the safe draw of blood during an HIV examination.  The victim remarked: ""Even though the nurses and doctors asked them, [explaining] that they could not withdraw blood like that, the officers from CCA [Corrections Corporation of America] didn't care, and they had to take blood from my hand, and even though I cried from pain, they didn't care";
• A transgender asylum seeker being denied hormone therapy, which resulted in a suicide attempt in February 2011; and
• Taunting immigrants with "jokes" about them "dying of AIDS."

 I'm speechless.