Immigration Law
LGBT Rights Are Immigrant Rights
Published August 11, 2009 @ 08:18PM PT
I am blogging from a Motel 6 outside of Pittsburgh tonight in advance of the New Organizing Institute's pre-Netroots Nation blogger summit tomorrow on online advocacy and the intersection of immigration/LGBT issues. It looks to be a good group of bloggers and activists in attendance.
As I have learned through my immigration legal work over the past few years, LGBT immigrants tend to fall through the cracks of the immigration system much more frequently than hetero immigrants. Many of the available immigration remedies and defenses against deportation are predicated on traditional hetero nuclear family relationships. Under the Defense of Marriage Act (DOMA), the federal government is bound by law not to recognize gay families for the purpose of legal obligations or benefits, and immigration is almost entirely a federal body of law. LGBT asylum law has come a long way since the '90s, but still leaves too many in the shadows. A while back, I had the unpleasant experience of advising a gay would-be asylum seeker that his chances of experiencing the thing he feared most--deportation to his homophobic home country--would actually significantly increase if he applied for asylum.
The first U.S. immigration case I ever worked on was a pro bono asylum case during my first year as an associate attorney at a corporate firm in New York. The basis for the claim was my client's transgender identity. Her predicament opened my eyes to the struggles undocumented immigrants face, but also to the harassment and persecution that trans people endure right here in the States. At one point in the course of representing her, I had my first "Oh my god, I can't believe I am in the United States" moment that every nonprofit immigration attorney has experienced. I was horrified.
Getting recognized legal status didn't solve my client's problems in getting decent health care, a place to live free from harassment, an employer that would hire her, or law enforcement that offered her protection. The immigration judge believed my client would be attacked or killed in her home country on the basis of her gender and sexual orientation--I firmly believed it as well. But what was not discussed at any hearing or in discussions with opposing counsel was the risk of serious injury or death that trans people face in the U.S. as victims of hate crimes.
I hope tomorrow's NOI meeting advances the conversation about LGBT rights and immigrant rights, two areas in which the U.S. falls far short of its stated ideals.
(I'll take this opportunity to make a pitch for readers to support the excellent work Immigration Equality continues to do on LGBT immigrants' rights. Thanks to their efforts, the HIV travel/immigration ban is entering its final days.)
[Image: murder victim Angie Zapata]
Kris Kobach Appears on Colbert Report
Published August 10, 2009 @ 07:00AM PT
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Restrictionist attorney and activist Kris Kobach appeared last week on the Colbert Report. As when Maricopa County Sheriff Joe Arpaio appeared on the show, I felt like Colbert’s humor ended up not putting the guest on the spot, but rather allowing a deft operative to dodge tough questions and take refuge behind the jokes. (Stephen Lemons from Feathered Bastard had a different take on Arpaio’s appearance.) Perhaps this is Colbert’s MO and the reason why conservatives continue to appear on the show—I don’t have cable and don’t watch the show enough to know.
But Kobach was able to get off shots like this pretty much uncontested:
For all of the 11 million illegal aliens currently in the United States, you have to remember there are 5-6 million people waiting in line outside the United States trying to come in legally and doing it the right way.
There will always be people willing to come to this country legally, we should reward those people.
First of all, for most of the undocumented migrants here already, there is no line.
It makes sense that there should be a line, and we hear stories about family members waiting for ten years or more to reunite here in the U.S. So people assume there actually is a line where people can apply and eventually come into the country if they are patient and stay out of trouble.
There isn't! It's a fantasy. In a reasonable world there would be such a line, but in this world there’s not.
The whole concept of a specific “line” in which people can wait is designed to mislead people about how immigration policy actually works. Some of the undocumented immigrants currently present might now qualify for some kind of visa based on family relationships, but if they leave now, penalties implemented by President Clinton’s 1996 IIRIRA law will bar those people from returning to the U.S. for at least ten years, in most cases regardless of whether the person has immediate family members who are U.S. citizens.
Kobach isn’t interested in talking about family separation, lengthy detention for civil immigration violations or even for the “crime” of seeking asylum, or the ballooning costs of immigration enforcement. He talks about "doing things the right way,” but won’t talk about the continued efforts of the Tanton network (of which his employer, Immigration Reform Law Institute, is a part) to reduce legal immigration and restrict channels for people to enter lawfully. (Read more about Kobach from Jill Garvey at Imagine2050.)
Colbert didn’t ask Kobach about the reforms of the Board of Immigration Appeals which he designed and implemented under former Attorney General John Ashcroft to purge the Board of liberal members and cut the number of immigrant-favorable asylum decisions in half. He didn’t ask Kobach about his ongoing efforts to enable local mayors and law enforcement officers to racially profile nonwhite residents and create a climate of fear more suited to a totalitarian state than the United States.
Kobach specializes in making unreasonable policies sound reasonable, and in my estimation, last week on the Colbert Report, he succeeded.
Shades of Gray in Trafficking, But It's Still Slavery
Published August 09, 2009 @ 11:02PM PT
From time to time, my office represents victims of trafficking in their immigration matters. In the U.S., the T Visa is available to victims of trafficking who meet certain conditions. The government estimates that 14,500 to 17,500 people are trafficked to the U.S. annually.
Amanda Kloer covers this issue daily at change.org's Human Trafficking blog. She is very good--I encourage readers of this blog to check out Amanda's blog when you get the chance. Here is a basic primer on the topic.
Recently she wrote about the common misconception that trafficking victims must have been coerced at every step of the process or they have not been trafficked.
It's also important to note that many women who are trafficked knowingly and willingly enter prostitution. While the most publicized stories are about women who thought they would be waitresses or nannies, some take a job in the Netherlands or Germany in what they expect will be legal, safe prostitution on their own terms. Even after making that choice, women can be trafficked one their freedom is removed or their labor stolen and exploited. A woman who took a job as a prostitute and one who took a job as a waitress are equally trafficked once they loose their ability to leave or control their situation. The women from Eastern Europe thought they were taking a number of different kids of jobs, jobs that all turned into slavery.
It is simply not always the case that trafficking victims are always coerced, and this misconception frequently leads to further punishment of trafficked individuals by the governments that are supposedly committed to protecting them.
[Image: humantraffickingproject.blogspot.com]
Senate Confirms Sotomayor As First Latina Justice
Published August 06, 2009 @ 11:41PM PT
Sonia Sotomayor's historic confirmation today to the Supreme Court by the Senate inspired a number of blog reactions, including posts from Latina Lista and Mario Solis-Marich, who wrote:
Both my friends have often served as reliable barometers for what middle class professional Latinas are thinking. Like most of their group they came directly from the proud Latino working class. Like their moms and mine being a successful Latina, whether that is defined as being a professional or producing a generation prepared to fulfill their dreams, is more than necessary it is almost a sacred duty. Their path is apparently not easy. Whether it was my mom working herself into America after growing up on a ranch in Mexico’s northern region or my friends moms establishing their first generation family firmly into the American middle class or their own personal journeys being the first to graduate college and to devote their lives as in one case a professional public servant or as in the other a promising new attorney. Their journey is treacherous and difficult and was one that necessitated a determination and sense of self that one would have to call “wisdom”. So while the story of Sonia Sotomayor has been told as if it is unique and special the power of her biography it is that in many ways it is neither. Sonia Sotomayor is representative of Latinas more often than not.
Sotomayor's future immigration jurisprudence will be scrutinized by me and every other political junkie in the country. Until now, it's been a mixed bag. She sat on the Second Circuit panel that issued the landmark FGM asylum case Bah v. Mukasey reversing the BIA's restrictive interpretation of the circumstances under which asylum is available to victims of FGM. On the other hand, Chuck Schumer was tripping over himself last month to highlight the fact that Sotomayor ruled in favor of the immigrant in only 17% of immigration cases she decided. The message: no need to worry about undue levels of empathy emanating from Justice Sotomayor to taint the high court.
This blogger will reserve judgment until there is more to judge. In the meantime, I'll celebrate the appointment of a wise Latina to the Supreme Court.
Kenyan Birth Certificate Generator Confuses Birthers
Published August 05, 2009 @ 09:12PM PT
My Kenyan birth certificate!
Get yours here. Via ImmigrationProf Blog.
Holder Starts to Unpack Ashcroft's BIA
Published August 03, 2009 @ 09:17PM PT
Eric Holder has reappointed John Guendelsberger to the Board of Immigration Appeals, returning him to the position he held before former Attorney General Ashcroft purged the BIA of its pro-migrant members back in 2002-03. The BIA has been notoriously bad since Ashcroft's demented court-packing scheme, denying appeals in Affirmances Without Opinion by single members and getting reamed by Judge Posner and his colleagues on the federal bench for shoddy reasoning and unsupportable conclusions.
We will hope this is a small step towards sanity for EOIR after a troubled period for the BIA and for the countless families it split up.
Next, how about giving Judge Brennan her old job back?
Watch Prerna at Busted Halo
Published August 03, 2009 @ 08:50PM PT
Busted Halo sent friend of the blog Prerna a flipcam and asked her to tell her story.
Watch the whole thing or skip to 5:25 for the "punchline" Prerna's lawyer delivered two years ago. The immigration laws play a cruel joke on too many families in the U.S. You may not know this until it happens to you or someone you love.
