USA: Federal judge’s ruling upends how ICE targets people for being in the country illegally

2019/09/30 Leave a comment

Hard to follow all the restrictive changes in US immigration and related policies and the various court challenges and their impact, so found this summary helpful:

In a third defeat in less than a day for the Trump administration, a federal judge blocked it from vastly extending the authority of immigration officers to deport people without first allowing them to appear before judges.

The decision late Friday came before the policy, which was announced in July, was even enforced. The move would have applied to anyone in the country less than two years.

For the record:
1:31 PM, Sep. 28, 2019 An earlier version of this article misspelled U.S. District Judge Andre Birotte Jr.’s last name as Birrote.

The decision came just after a federal judge barred Immigration and Customs Enforcement from relying solely on flawed databases to target people for being in the country illegally.

Early Friday, the administration suffered what would be its first defeat on the immigrant front in less than 24 hours when a federal judge blocked its plan to dismantle protections for immigrant youths and indefinitely hold families with children in detention.

Those protections are granted under the so-called Flores agreement, which was the result of a landmark class-action court settlement in 1997 that said the government must generally release children as quickly as possible and cannot detain them longer than 20 days, whether they have traveled to the U.S. alone or with family members.

In a statement Saturday, the White House responded angrily to the decision to halt its plans for expedited removal of immigrants.

“Once again, a single district judge has suspended application of Federal law nationwide — removing whole classes of illegal aliens from legal accountability,” the statement read in part. “For two and a half years, the Trump Administration has been trying to restore enforcement of the immigration laws passed by Congress. And for two and a half years, misguided lower court decisions have been preventing those laws from ever being enforced — at immense cost to the whole country.”

The American Civil Liberties Union, which had sought the injunction granted just before midnight celebrated the result.

“The court rejected the Trump administration’s illegal attempt to remove hundreds of thousands of people from the U.S. without any legal recourse,” said ACLU attorney Anand Balakrishnan, who argued the case. “This ruling recognizes the irreparable harm of this policy.”

In the first setback Friday for the Trump administration, U.S. District Judge Dolly Gee said new rules it planned to impose violated the terms of the Flores settlement. Gee issued a strongly worded order shortly after, slamming the changes as “Kafkaesque” and protecting the original conditions of the agreement.

Gee wrote that the administration cannot ignore the terms of the settlement — which, she pointed out, is a final, binding judgment that was never appealed — just because leaders don’t “agree with its approach as a matter of policy.”

Barring a change in the law through Congressional action, she said, “Defendants cannot simply impose their will by promulgating regulations that abrogate the consent decree’s most basic tenets. That violates the rule of law. And that this court cannot permit.”

The new regulations would have eliminated minors’ entitlement to bond hearings and the requirement that facilities holding children be licensed by states. They also would have removed legally binding language, changing the word “shall” to “may” throughout many of the core passages describing how the government would treat immigrant children.

The government is expected to appeal.

In the second decision Friday, U.S. District Judge Andre Birotte Jr. issued a permanent injunction barring ICE from relying solely on databases when issuing so-called detainers, which are requests made to police agencies to keep people who have been arrested in custody for up two days beyond the time they would otherwise be held.

ICE is also blocked from issuing detainers to state and local law enforcement in states where there isn’t an explicit statute authorizing civil immigration arrests on detainers, according to the judge’s decision.

The decision affects any detainers issued by an ICE officer in the federal court system’s Central District of California.

That designation is significant because the Pacific Enforcement Response Center, a facility in Orange County, is an ICE hub from which agents send out detainer requests to authorities in 43 states, Guam and Washington, D.C. It is covered by the Central District.

“ICE is currently reviewing the ruling and considering our legal options,” Richard Rocha, an agency spokesman, said in a statement. “Cooperation between ICE and local law enforcement agencies is critical to prevent criminal aliens from being released into our communities after being arrested for a crime.”

Tens of thousands of the requests are made each year to allow ICE agents additional time to take people suspected of being in the country illegally into federal custody for possible deportation. Approximately 70% of the arrests ICE makes happen after the agency is notified about someone being released from local jails or state prisons.

In fiscal year 2019, ICE has lodged more than 160,000 detainers with local law enforcement agencies, according to the agency.

Although police in California do not honor these ICE requests because of earlier court rulings that found them unconstitutional, agencies in other parts of the country continue to enforce them.

The civil case, which has wound its way through years of delays and legal wrangling, has broad implications for President Trump’s crackdown on illegal immigration as the ACLU and other groups sought to upend how immigration officers target people for being in the country illegally.

“I think the decision is a tremendous blow to ICE’s Secure Communities deportation program and to Trump’s effort to use police throughout the country to further his deportation programs,” said Jessica Bansal, senior staff attorney with the ACLU of Southern California.

The class-action lawsuit, which represents broad categories of people who have been or will be subjected to detainers, alleged the databases that agents consult are so badly flawed by incomplete and inaccurate information that ICE officers should not be allowed to rely on them as the sole basis for keeping someone in custody.

The judge agreed with that assessment, finding that the databases often contained “incomplete data, significant errors, or were not designed to provide information that would be used to determine a person’s removability.”

These errors, according to the decision, have led to arrests of U.S. citizens and lawfully present noncitizens. From May 2015 to February 2016, of the 12,797 detainers issued in that time frame, 771 were lifted, according to ICE data. Of those 771, 42 were lifted because the person was a U.S. citizen.

The detainer process begins when police arrest and fingerprint a person. The prints are sent electronically to the FBI and checked against the prints of millions of immigrants in Homeland Security databases. If there is a match — such as someone who applied for a visa or was apprehended by Border Patrol — it triggers a review process, which often culminates with an agent at the center deciding whether to issue a detainer.

Last year, the Pacific Enforcement Response Center issued 45,253 detainers and alerted agents at field offices to more than 28,000 additional people released from law enforcement custody before ICE could detain them.

Trump has singled out police in California and elsewhere for their refusal to honor detainers, using them to highlight what he says are problems with the country’s stance on immigration enforcement and the need to take a more hard-line approach.

In the years since the lawsuit was filed, ICE has amended its policies, saying the changes made the process for issuing detainers more rigorous.

Source: Federal judge’s ruling upends how ICE targets people for being in the country illegally

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Australia: High court to rule on whether Indigenous people can be deported from Australia

2019/05/09 Leave a comment

Can’t resist following this absurd argumentation by the Australian government:

The federal government’s attempts to deport two Indigenous men have gone before the high court, examining what lawyers for the two men have said are “absurd” circumstances.

The two men in the separate cases, Daniel Love and Brendan Thoms, were both born overseas to at least one parent who is Indigenous and holds Australian citizenship. They both have Indigenous children, and Thoms is a native title holder.

However, neither formally applied for Australia citizenship and, after being convicted of “serious” crimes and given jail sentences of 12 months or more, both had their visas cancelled under the government’s controversial character test provisions.

The law firm Maurice Blackburn is now asking the high court to determine if an Aboriginal Australian in the men’s circumstances is an “alien” for the purposes of the constitution.

It is the first time the court has been asked to rule on the commonwealth’s use of its alien powers in this way, and the lawyers now representing the two men argue the term must be defined by the court, not parliament.

“Historically we are a nation of immigrants and our ancestors come from other places, except for Aboriginal Australians,” said Claire Gibbs, senior associate at Maurice Blackburn, who is acting for the two men, before the hearing. “The importance and significance of that should be reflected in the common law.”

Love and Thoms are not the only Indigenous people who have faced deportation under the character test provisions. Guardian Australia has previously reported on the case of Tim Galvin, and it is believed there are a number of others.

Love was born in Papua New Guineain 1979 to a PNG citizen mother and Australian citizen father, and automatically acquired PNG citizenship.

The family travelled back and forth until they settled permanently in Australia when Love was five and he was given a permanent residency visa. Love is a recognised Kamilaroi man.

Thoms was born in New Zealand in 1988 to an Australian citizen mother and New Zealand citizen father. He automatically acquired New Zealand citizenship at birth, and was entitled to apply for Australian citizenship, but never did.

He has lived permanently in Australia since November 1994 under a special category visa. Thoms is a recognised Gunggari man, and a native title holder under common law.

In 2018 both men were separately convicted of crimes and sentenced to 12 and 18 months respectively. Both had their visas cancelled under the government’s controversial section 501 of the migration act, relating to character, and were taken to immigration detention.

Gibbs said being put in immigration detention had taken a devastating toll on her clients’ mental health. Gibbs said bringing the case before the court was not seeking to interfere with the government’s power to deport people who were “genuinely non-Australian”.

“What we think is wrong is the government using the power to detain and deport people who, on any commonsense measure, are Australians, like my clients.”

Love was given his visa back under ministerial discretion but Thoms remains in immigration detention after more than seven months.

Gibbs welcomed the return of Love’s visa but said there there were clearly “inconsistencies” between the two cases and that was why the high court needed to determine if the government was using the power lawfully.

In submissions to the court, the men’s lawyers argued that Indigenous people “cannot be alien to Australia” and were “beyond the reach” of that constitutional power.

Indigenous people are known to have inhabited Australia for as much as 80,000 years and are “a permanent part of the Australian community”, they said, and the two men “do not, and have never, owed allegiance to a foreign sovereign power”.

“The statutory definition of citizen is distinct from, and does not control, the constitutional definition of alien and, therefore, that the plaintiffs are not Australian citizens pursuant to Australian citizenship legislation does not automatically mean that they are aliens.”

In defence, the Australian government submitted that whether the men were Indigenous or native title holders was “irrelevant” to the question of their alien status.

“Acceptance of the proposition that Aboriginal people, as a class, were not and are not ‘aliens’ does not entail the proposition that any particular Aboriginal person is not an ‘alien’,” the government’s submission said.

It said certain principles, which were “fatal” to the plaintiffs’ case, “ought now to be regarded as settled”. They said it was an agreed fact that neither plaintiff was a citizen, and “non-citizen” was the same as “alien”.

Numerous cases supported these findings, the submission said, and the plaintiffs had not sought to reopen those cases.

Legal arguments began on Wednesday, with the government citing the high court’s section 44 ruling on MPs, and the men’s lawyers citing significant cases including the Mabo decision, and the high court ruling on Amos Ame, a Papua-born man who was an Australian citizen by birth but who could be treated as an alien.

The government’s push to deport an increasing number of people under the character test provisions has raised numerous complications, including for Indigenous people and those born in PNG before its independence in 1975.

A complex web of citizenship laws and successive changes to them in both PNG and Australia has threatened to leave some people stateless, as both countries assumed people had citizenship of the other and revoked their own, but failed to properly communicate it to individuals.

Source: High court to rule on whether Indigenous people can be deported from Australia

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USA: A Judge Blocked the Census From Asking About Citizenship. Here’s Why It Matters

2019/01/17 Leave a comment

One of the better analysis that I have seen:

A federal judge in New York has blocked the Trump Administration from adding a question about citizenship status to the 2020 Census, marking a victory for critics who have said the question is unnecessary and is intended to decrease the number of immigrants and minorities counted in the decennial survey.

The ruling is just the first in a series of cases on the issue, which has significant implications for future elections, political representation at every level and federal funding decisions for the next decade. The Trump Administration is also facing five other lawsuits over the Census question, and the battle is expected to end up at the Supreme Court.

But U.S. District Judge Jesse Furman’s decision on Tuesday was an important moment. The suit’s plaintiffs — a collection of immigrant advocacy groups, states and local officials — argued that the Trump Administration tried to add the citizenship question to intentionally dissuade immigrants from responding to the survey. The U.S. Census, which is conducted every 10 years, has not included a question about citizenship since 1950. More detailed sampling surveys have done so, but those go out to far fewer households.

Furman ruled that the way Commerce Secretary Wilbur Ross added the question was “arbitrary and capricious” and violated administrative procedures.

“He failed to consider several important aspects of the problem; alternately ignored, cherry-picked, or badly misconstrued the evidence in the record before him; acted irrationally both in light of that evidence and his own stated decisional criteria; and failed to justify significant departures from past policies and practices,” Furman wrote in his 227-page decision.

The judge also ruled that Ross’s explanation for the citizenship change — that the Justice Department said it was needed to help enforce the Voting Rights Act — was “pretextual.”

Ross initially offered voting rights enforcement as his official explanation, but documents released as part of the ongoing lawsuits revealed that he began pushing the issue on his own soon after becoming Commerce Secretary.

The Justice Department said it was disappointed in the ruling, while advocacy groups like the ACLU cheered the decision.

“This ruling is a forceful rebuke of the Trump administration’s attempt to weaponize the census for an attack on immigrant communities,” Dale Ho, director of the ACLU’s Voting Rights Project, said in a statement. “The evidence at trial, including from the government’s own witness, exposed how adding a citizenship question would wreck the once-in-a-decade count of the nation’s population. The inevitable result would have been — and the administration’s clear intent was — to strip federal resources and political representation from those needing it most.”

As this was the first ruling in the cases against the citizenship question, evidence that came out during the trial could encourage those pursuing similar lawsuits, said William H. Frey, a demographer and expert on the Census at the Brookings Institution.

“This is good news for people who want to have a Census that represents America,” Frey told TIME. “You want to make sure that all groups are represented and it helps the proper apportionment of Congress, it helps federal spending that is allocated to different groups around the country.”

If immigrants and other minorities avoid responding to the census because of a question about citizenship, experts, including the Census Bureau itself, say it would likely result in a survey that significantly undercounts those populations.

The Census provides crucial data that is used for a wide variety of decisions, including how many representatives each state sends to Congress and how much federal money different areas receive for everything from highway funds to Medicaid. The data can also affect state representation and even the Electoral College, which is based on Congressional delegations.

The private sector often relies on Census numbers as well for decisions about where to open stores or where to base factories and other employment opportunities, Frey notes.

“The Constitution says that we need to count everyone in the United States and I think that as a scientist, as a demographer, as someone who has been doing this for a long time, the research is pretty unequivocal that that’s going to not be done if the citizenship question is on there,” he said.

Source: A Judge Blocked the Census From Asking About Citizenship. Here’s Why It Matters

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Quebec’s top court rules woman wearing hijab was entitled to have case heard

2018/10/04 1 Comment

Ironic that this decision (a correct one) comes just as the incoming CAQ government has confirmed its party platform prohibiting religious symbols on public servants in positions of authority.

Different issues, of course, but both are symbolic of the ongoing identity/secularism debates:

Quebec’s highest court has ruled a woman who was denied justice three years ago after a judge ordered her to remove her hijab was entitled to be heard by the court.

The unanimous judgment rendered today in favour of Rania El-Alloul says the Quebec court dress code does not forbid head scarves if they constitute a sincere religious belief and don’t harm the public interest.

In 2015, Judge Eliana Marengo refused to hear a case involving El-Alloul’s impounded car because El-Alloul refused to remove her Islamic head scarf in the courtroom.

Marengo told her at the time that decorum was important and, in her opinion, El-Alloul wasn’t suitably dressed.

El-Alloul’s lawyers had appealed the Quebec Superior Court’s 2016 decision refusing to declare that she had the right to be heard by the court despite her attire.

Today’s judgment by the Quebec Court of Appeal quashes the original judgment by the trial judge and sets aside the Superior Court judgment that denied relief.

Julius Grey, one of El-Alloul’s lawyers, says he’s pleased with the ruling that puts both issues to rest.

Source: Quebec’s top court rules woman wearing hijab was entitled to have case heard

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Quebec woman told to remove hijab in court appeals for legal clarification on right to wear religious attire

2016/11/25 1 Comment

Hard to imagine her not winning this appeal. The hijab is not the niqab where the Supreme Court, in a convoluted ruling, stated should be case-by-case (Supreme Court niqab ruling: Veil can be worn to testify in some cases):

A Montreal woman who was told to remove her hijab by a judge is appealing a ruling that declined to clarify whether Quebecers have a right to wear religious attire in court, her lawyer said Wednesday.

Rania El-Alloul had sought a legal clarification from Quebec Superior Court after she was denied an appearance in a lower court because she was wearing a hijab.

Superior Court Justice Wilbrod Décarie ruled last month that the Quebec court judge’s decision went against the principles of Canadian law protecting freedom of religion.

But he also said that although El-Alloul’s treatment was regrettable, he could not guarantee she would be allowed to wear her hijab during future court appearances.

“Each case must be evaluated in light of the context that exists during the witness’s appearance,” he wrote in his decision.

On Wednesday, one of El-Alloul’s lawyers said this case-by-case approach creates insecurity for his client and anyone else who may need to access the justice system while wearing religious attire.

“She would have to be worried every time whether she’d be heard or not, which might induce her to settle cases she shouldn’t settle or not to go to court,” Julius Grey said in a phone interview.

Grey also believes Décarie erred when he ruled it was out of his jurisdiction to make a declaration on whether all litigants have the right to wear religious attire in court.

“When you have a Charter issue, the procedure should not have the effect of depriving someone of their rights,” he said.

A judge refused to hear El-Alloul’s case against the province’s auto insurance board in February 2015 because of her attire.

El-Alloul refused to remove her hijab and the case was put off. It was ultimately settled when the car was returned.

In a statement, El-Alloul said she wanted more than just confirmation the judge had been wrong.

“It isn’t enough that I have been vindicated,” she said. “It’s so important that the successful resolution of my case ensures that no one is ever humiliated the way I was and deprived of their rights.”

Grey said the appeal likely won’t be heard until late 2017.

Filed under Multiculturalism, Religion Tagged with , ,

Denying Quebec woman day in court because she was wearing of hijab went against Canadian law principles: judge

2016/10/08 Leave a comment

Surprised that the judge, while making the correct ruling in the particular case, refused to make a general ruling that wearing a hijab (or kippa, or turban) is permissible in court. Hard to understand what hypothetical situation he was thinking of:

Seventeen months after a Quebec Court judge told her to remove her hijab in court, Rania El-Alloul has received partial vindication from the justice system, but no guarantee it will not happen again.

In a ruling released this week, Superior Court Justice Wilbrod Décarie writes, “The court has a lot of sympathy for (El-Alloul) and deeply regrets how she was treated.”

Judge Eliana Marengo’s February 2015 refusal to hear El-Alloul in the “secular space” of a courtroom unless she removed her Muslim head scarf flew in the face of a 2012 Supreme Court of Canada decision that a witness was entitled to testify in a face-covering niqab, Décarie found.

But he did not issue the judgment sought by El-Alloul — declaring that her rights under the Charter of Rights and Freedoms had been breached and affirming her right to appear in court wearing her hijab.

“Each case is a specific case that has to be evaluated in the context of the witness’s court appearance,” Décarie wrote. “It cannot be declared in advance, absolutely and out of context, that El-Alloul will have the right to wear the hijab during her future appearances before the Court of Quebec. Nobody can predict the future.”

What happens next, I don’t know. I hope no one ever feels what I felt in the past

Julius Grey, one of El-Alloul’s lawyers, called Décarie’s finding “wrong in law and very dangerous.” It opens the door to litigants trying to destabilize a witness by filing motions asking she remove her hijab.

“A person will feel insecure before the courts,” Grey said, adding he favours an appeal.

The lawyer said the issue is important as restrictions on religious dress become more common.

“It’s not a particularly Quebec matter. All over the West there is an unhealthy irritation, I would say, with religious garb, with religious practice, with other customs,” Grey said.

Source: Denying Quebec woman day in court because she was wearing of hijab went against Canadian law principles: judge | National Post

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Bipolar man on verge of deportation to a country he left as a baby — 57 years ago

2015/12/22 Leave a comment

The ongoing reach of the previous government’s legislation and approach:

57-year-old man who immigrated to Canada as a baby is on the verge of being deported from the only country he’s known because of a string of crimes triggered by severe mental illness.

Len Van Heest — diagnosed with bipolar disorder in British Columbia at age 16 — is just the latest, dramatic example of a growing trend, say some immigration lawyers.

Increasing numbers of adult immigrants who came here as small children and developed psychiatric or neurological conditions now face removal after the previous government toughened the law on non-citizen criminals, they say.

The Canada Border Services Agency detained Len Van Heest last Wednesday and plans to send him to the Netherlands, though he doesn’t speak Dutch and has not lived there since he was in diapers.

We’re just dumping someone in another country

The Vancouver Island man neglected to become a Canadian citizen, so falls under legislation that lets the government expel immigrants who commit serious crimes.

A Federal Court judge has just upheld the denial of Van Heest’s application to remain on humanitarian and compassionate grounds — and rejected his claim that deportation to the Netherlands would be cruel and unusual punishment.

“I don’t think it’s fair at all,” said Peter Golden, his Victoria-based lawyer. “I don’t think we can treat someone who has these vulnerabilities just like we treat everybody else …We’re just dumping someone in another country.”

Golden said he is worried that his client will end up on the streets in Holland, without his required drug treatment. “In all probability, it’s a death sentence for him.”

Van Heest is now planning a last-ditch application to the new Immigration minister, John McCallum, for a permanent stay of deportation, said his lawyer.

But a spokesman for the Canada Border Services Agency said the decision to remove someone from Canada “is not taken lightly,” and that various avenues of appeal are open to those facing deportation.

Van Heest was twice given a reprieve from removal, only to relapse into criminal activity, noted another immigration lawyer.

“I think in this particular case, as the court notes, there were just too many strikes against this fellow,” said Sergio Karas, vice-chair of the Ontario Bar Association’s immigration section. What’s more, “in the Netherlands, you’re going to get perhaps even better (mental-health) support than here.”

Source: Bipolar man on verge of deportation to a country he left as a baby — 57 years ago

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