Author Archives: Richard Irwin

What to Look for in Any “DACA Solution” (The Torch)

What to Look for in Any “DACA Solution”

THE TORCH: CONTENTSBy Ignacia Rodriguez, NILC immigration policy advocate
JUNE 14, 2018

Earlier this year, on February 15, the U.S. Senate debated and voted on immigration-related bills and amendments, all aimed at solving the crisis created by President Trump’s decision to terminate the DACA (Deferred Action for Childhood Arrivals) program. However, the Senate ended up not approving any of the proposals or bills. Of the four amendments they voted on, one that mirrored President Trump’s proposal received the least support, with only 39 votes. The bipartisan USA Act, sponsored by Senators John McCain (R-AZ) and Christopher Coons (D-DE), which included a pathway to U.S. citizenship for immigrant youth as well as immigration enforcement–related provisions, garnered majority support but fell shy of the 60 votes needed to proceed.

Over the past few weeks, there has been a lot of buzz about a discharge petition that, if it had received enough signatures, would possibly have forced a vote on the “Queen of the Hill” resolution, which would bring four immigration measures to a vote in the U.S. House of Representatives. However, the discharge petition fell shy of receiving enough signatures this week. Now attention is focusing on the proposed Securing America’s Future Act of 2018 (also known as the “Goodlatte bill,” after its sponsor, Rep. Bob Goodlatte, R-VA) and a “compromise bill” that mirrors the White House anti-immigrant wish list, which could be brought up for a vote next week.

As these developments unfold, it’s important to pause, reflect on, and take some lessons from what’s taken place in Congress over the past few months with regard to immigration legislation. And we need to continue emphasizing the need for our Republican and Democratic legislators to enact a narrowly tailored solution that will provide permanent immigration relief to our DACA-eligible neighbors and friends.

What are some of the elements that any truly effective DACA solution should contain? In other words, what questions should we be asking when evaluating the legislative proposals we’ve seen thus far or any new proposals that may be offered?

First, does the proposal provide a path to citizenship? Early on, the BRIDGE Act was introduced to provide a path by which certain immigrant young people would be able to legalize their immigration status, but it did not include a path to U.S. citizenship. Essentially, it would have placed the DACA program into the immigration statute, making it a law rather than an administrative policy. Although various bills introduced after the BRIDGE Act included provisions for permanent relief (including the ultimate possibility of U.S. citizenship), the Goodlatte bill would instead take several steps backwards. For example, it proposes that immigrant youth become a completely new category of immigrants, to be known as “contingent nonimmigrants,” and that they receive authorization to live and work in the U.S. for a three-year period that could be renewable but would include no path to citizenship.

Immigrant youth deserve permanent immigration relief that provides a path to U.S. citizenship, with all the rights citizens have; anything less would be relegating those who are granted the proposed new status to a permanent second-class existence in this their de facto home country. Any bill that simply makes the current DACA program permanent by codifying it — making it part of the immigration statute — would create a situation in which people with DACA would have to periodically and continually renew it, perhaps for the rest of their lives. Immigrant youth, like everyone else, need and deserve long-term stability.

Second, if the proposal provides a path to U.S. citizenship, is it a reasonable one? What are its requirements? How long would the person have to wait before being eligible to apply for citizenship? The longer the wait, the more insecurity people will feel about applying, since the program they’re counting on could conceivably be rescinded by Congress. Even if such a development is unlikely, remember that immigrant youth have experienced the ups and downs of having the government make DACA available and then take it away. So any lack of trust they have in the government is well-earned by the latter; going forward, they need a secure and reliable path that they can count on.

Third, is the path to citizenship fair? For example, minimum and maximum age requirements should be evaluated critically. An amendment (No. 1958) to the Immigration Security and Opportunity Act, introduced by Senators Rounds (R-SD), King (I-ME), and Collins (R-ME), includes an age cap of 38; and an amendment (No. 1959) to the Secure and Succeed Act, introduced by Sen. Grassley (R-IA), includes an age cap of 31 — i.e., to be eligible to apply for the immigration benefit, a person must have not been older than either age 38 or 31, respectively, on June 15, 2012, the date when the DACA program was announced. Sen. Grassley’s amendment also provides that, to be eligible, the immigrant must have arrived in the U.S. by the age of 16 (rather than 18), thus excluding many minors from a program intended to provide relief for immigrant youth. If someone meets every other requirement to qualify for relief, why should they be excluded for the one thing they have no control over: their age when they arrived in the U.S. and/or their age on June 15, 2012?

Fourth, what’s the real cost of applying? For example, under Sen. Grassley’s amendment to the Secure and Succeed Act, an applicant who is 18 or over would have to “sign, under penalty of perjury, an acknowledgement confirming that the alien was notified and understands that he or she will be ineligible for any form of relief or immigration benefit … other than withholding of removal … or relief from removal based on a claim under the Convention Against Torture” if they violate any ground of eligibility for conditional temporary resident status. In other words, in exchange for receiving relief, which could be taken away, they would have to waive the ability to seek most other forms of immigration relief in the future.

The grounds of eligibility for conditional temporary resident status under the bill include ones the U.S. Department of Homeland Security has the authority to alter and redefine. For example, one such ground is that an applicant is not likely to become a “public charge” — and for months it’s been known that the Trump administration is in the process of expanding the criteria for finding that a noncitizen is or is likely to become a public charge (see, for example, NILC’s issue brief Changes to “Public Charge” Instructions in the U.S. State Department’s Manual).

And under the Rounds-King-Collins amendment, a person granted relief under the Immigration Security and Opportunity Act would not be allowed to sponsor their parents for immigration relief if the parents knowingly assisted the person in entering the U.S. unlawfully. Many young immigrants would feel severely conflicted about applying for much-needed immigration relief through a process that criminalizes and punishes their parents. Applying for immigration relief should not put immigrant youth or their families at risk in the future.

Fifth, does the proposed DACA fix include other unacceptable trade-offs? Immigrant youth have made it clear that they won’t allow their lives and futures to be used as bargaining chips so the Trump administration and Trump’s allies in Congress can further a harmful and racist anti-immigrant agenda. Thus, any DACA fix that isn’t narrowly tailored should be evaluated carefully and critically. Legislative proposals including a DACA fix have included at least some of the following proposed provisions:

  • Permanent changes to family immigration sponsorship — for example, no longer allowing any citizen to sponsor their adult child for immigration relief.
  • An end to the Diversity Visa Program, which would predominantly affect migration from Africa and Asia.
  • More funding and intrusive technology for border enforcement.
  • Attacks on policies adopted by states, cities, and localities intended to build trust between all residents (including immigrants) and local authorities.

Therefore, it’s critically important to carefully read and evaluate any proposed bill. The public messaging about a bill may be focused on “protecting DACA and immigrant youth,” but we must look at the entire bill and understand any potential harm it may have on immigrant communities and broader communities of color. It’s usually the case that, until you read a bill section by section, you can’t really tell what its real purpose is, regardless of its title.


What Does the Masterpiece Cakeshop Ruling Mean for Immigrant Communities? (The Torch)

What Does the Masterpiece Cakeshop Ruling Mean for Immigrant Communities?

THE TORCH: CONTENTSBy Josh Rosenthal, NILC staff attorney
JUNE 5, 2018

In a narrow ruling announced yesterday, the U.S. Supreme Court reversed the Colorado Civil Rights Commission’s citation of a Denver-area bakery, Masterpiece Cakeshop, for having violated Colorado’s public accommodations law by refusing to create a cake for the wedding of a same-sex couple, Charlie Craig and David Mullins. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Court based its reversal of the state commission’s decision on a finding that the commission had shown a bias against the bakery owner’s religious beliefs.

Public accommodations laws provide important protections for LGBT and non-LGBT immigrants

Public accommodations laws are intended to ensure that everyone can participate in the U.S. society and economy, regardless of their membership in a protected group. As the hashtag says, public accommodations laws help ensure that businesses are #OpenToAll. At the federal level, Title II of the Civil Rights Act of 1964 (42 U.S.C. § 2000a) prohibits discrimination on the basis of race, color, religion, or national origin by restaurants, hotels, gas stations, and places of entertainment. The Americans with Disabilities Act further provides that people with disabilities have access to a wider range of public accommodations.

In addition to these federal protections, 45 states and the District of Columbia have their own public accommodations laws. These laws provide for equal access to a wider range of businesses and may include protections based on sexual orientation, gender identity, marital status, age, or other personal characteristics. These protections are inconsistent, however: Only 22 states prohibit sexual orientation–based discrimination in public accommodations, and only 19 prohibit discrimination on the basis of gender identity.

In its Masterpiece Cakeshop opinion, the Supreme Court recognizes the importance of public accommodations laws. The Court cites the long “history … of civil rights laws that ensure equal access to goods, services, and public accommodations,” which exist to prevent “community-wide stigma” and ensure that members of protected groups can “acquir[e] whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”

Public accommodations laws thus provide essential protections for the approximately one million immigrants who identify as LGBTQ (including an estimated 10 percent of DACA recipients), as well as for other immigrants who may face bias on the basis of their race, skin color, religious beliefs, or ethnicity.

Religious beliefs are not a license to deny goods or services to a member of a protected class

The Court reaffirmed the longstanding principle that “[religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” For example, in Newman v. Piggy Park Enterprises, Inc., 390 U. S. 400, 402, n. 5 (1968) (per curiam), the Court rejected the idea that the owner of a barbecue restaurant could avoid complying with public accommodations law because he held a religious objection to racial integration. The Court made clear that similar religious beliefs cannot be used to justify discrimination on other bases either, including against gays and lesbians. Nor should religious beliefs shield discrimination against trans or gender nonconforming individuals.

However, the Court did leave open the possibility that individuals may refuse to provide certain expressive services, notwithstanding public accommodations laws, if providing the good or service would require the individual to “exercise the right of his own personal expression for the [customer’s] message, a message he could not express in a way consistent with his religious beliefs.” Because the Court did not resolve this issue, it is not clear what kinds of goods and services, if any, would fit in this category. The question may be resolved by this case on remand to the Colorado court system or by other cases that are being presented to state and federal courts, including the Supreme Court.

Biased statements by officials are relevant to determining whether an apparently neutral decision is legitimate

The Supreme Court ultimately decided this case by finding that the Colorado Civil Rights Commission failed to provide the baker with “neutral and respectful consideration” of his religious beliefs. The Court pointed to statements by a commissioner that described the baker’s religious beliefs as “despicable” and other statements that the Court interpreted to be “inappropriate and dismissive comments showing lack of due consideration for [the owner’s] free exercise rights and the dilemma he faced.” The Court also noted that the commission apparently applied a different standard to the baker than it had to other bakers who refused to bake cakes with anti-gay messages.

Several commentators have noted similarities between the “official expressions of hostility” to religious beliefs in this case and the anti-Muslim comments made by President Trump in relation to his Muslim ban executive orders. It remains to be seen whether the Court will take Trump’s comments as seriously, while it considers the constitutionality of the administration’s Muslim ban in the Trump v. Hawaii case. However the Court rules, NILC is committed to fighting for #NoMuslimBanEver.


Montgomery County Policy Falls Short in Providing Legal Representation to Immigrants

June 1, 2018

Juan Gastelum, 213-375-3149
Hayley Burgess, 202-384-1279

Montgomery County Policy Falls Short in Providing Legal Representation to Immigrants

WASHINGTON — The Montgomery County, MD, Council last week approved a legal defense fund for some immigrants facing deportation. The program is an attempt to ensure due process for people in immigration court, who — unlike those in civil and criminal proceedings — are not afforded access to a lawyer if they cannot afford one.

Numerous politically and geographically diverse localities around the country, including Los Angeles, New York City, Baltimore, Columbus, Denver, San Antonio, Prince George’s County, and Washington, DC, have instituted similar legal aid programs for immigrants based on financial need. Disappointingly, however, Montgomery County’s program excludes many immigrants, even when they may be eligible for immigration relief, based on past criminal convictions. The exclusions are so vast that they would make the program unavailable to as many as 75 percent of the clients served by the Capital Area Immigrant Rights (CAIR) Coalition, which has successfully represented Montgomery County residents in fighting their immigration cases for years.

Avideh Moussavian, a senior policy attorney at the National Immigration Law Center, issued the following statement:

“While we are pleased to see Montgomery County take this important step in protecting its residents from our harsh immigration policies and in ensuring that more people get a fair day in immigration court, we are deeply disappointed by these due process carveouts.

“These programs aim to increase fairness and efficiency by ensuring that no one should have to face the devastating consequences of deportation or navigate our complex immigration courts on their own simply because they cannot afford a capable lawyer. But due process carveouts that leave behind so many immigrants — including those with strong, viable cases for fighting their deportation — make the program fall far short of its intended goals. At a time when the federal government routinely criminalizes immigrants and communities of color, local and state governments need to reject this harmful narrative of dividing immigrant communities along these harmful lines.

“It is a testament to the tireless work of local advocates, such as the Capital Area Immigrants’ Rights (CAIR) Coalition and CASA, that Montgomery County leaders approved such an investment, and we hope the county fulfills the intended goals of the funding by ensuring due process for all.”

Emily Tucker, a senior staff attorney for Immigrant Rights at the Center for Popular Democracy, said:

“There is still time for the county to realize that these carveouts defeat the entire purpose of the program. We are hopeful that local leaders will look to the example set by several other initiatives of this kind around the country, which protect the due process rights of all people facing deportation and do not discriminate against people with past convictions.”



POWER Act Would Empower U.S. Workers at a Critical Time

May 22, 2018

Juan Gastelum, 213-375-3149
Hayley Burgess, 202-384-1279

POWER Act Would Empower U.S. Workers at a Critical Time

WASHINGTON — Rep. Judy Chu (D-CA) and Sen. Robert Menendez (D-NJ) today reintroduced the Protect Our Workers from Exploitation and Retaliation (POWER) Act, which would strengthen the labor and civil rights of immigrant workers.

The POWER Act would provide workers with tools to exercise their rights to organize for safe working conditions and fair wages without fear of retaliation from abusive employers or deportation. It has the support of a broad and diverse cross-section of labor, civil rights, and immigrants’ rights organizations that, collectively, represent millions of working people across the United States.

Key provisions of the bill include expanding eligibility for U visas for workers who are involved in a workplace claim and who fear or have been threatened with force, physical restraint, serious harm, or other abuses. The POWER Act would also allow stays of removal and employment authorization for workers who have filed or are material witnesses in a workplace claim.

Jessie Hahn, a labor and employment policy attorney at the National Immigration Law Center, issued the following statement:

“Our current immigration and labor systems provide a perverse set of incentives for abusive employers to exploit immigrant workers. Under the Trump administration, these conditions have been exacerbated by attacks on existing protections for workers and ramped up immigration enforcement, including the reemergence of violent worksite raids designed to intimidate and silence workers. Unscrupulous employers are exploiting fearful workers to undercut honest employers trying to play by the rules.

“The POWER Act would provide the means to hold abusive employers accountable, while also promoting fair wages and fair working conditions for all workers and creating a level playing field for all employers. This sensible legislation, rooted in the principle that all workers should be able to take a stand against labor violations, is now more important than ever. We applaud Congresswoman Chu and Senator Menendez for reintroducing the POWER Act and implore Congress to give it serious consideration.”



National Immigration Law Center Launches Winning in the States Initiative

May 21, 2018

Hayley Burgess, 202-384-1279

National Immigration Law Center Launches Winning in the States Initiative

NILC plans to invest more than $5M over next three years to drive advances in the states

Washington — Today, the National Immigration Law Center (NILC) is launching the Winning in the States initiative to fast-track policy advances at the state and local levels and build momentum for reforms at the federal level.

Together, NILC and its state partners will prioritize encouraging state policies that include making college accessible by enabling immigrants to qualify for in-state tuition and financial aid, improving public safety by ensuring that immigrants have access to driver’s licenses, ensuring that law enforcement can focus on keeping communities safe rather than being deputized as deportation force agents, and enabling immigrant children to have access to health protections.

In the first year of the initiative, the effort is providing deep, strategic investments and hands-on campaign support in Colorado, New Jersey, Oregon, and Tennessee while offering a more robust support infrastructure for states across the country that rely on NILC for legal, policy, and communications expertise.

Marielena Hincapié, executive director of the National Immigration Law Center, issued the following statement:

“Despite efforts that seek to divide us, immigrants and their allies are successfully advocating for policy change at the state and local levels, working in close partnership with elected officials and leaders in business, labor and faith communities. Through our Winning in the States initiative, NILC will deepen its support of these efforts, helping bring about an America where all residents, regardless of their immigration status, are treated fairly, feel safe in pursuing their daily activities, and are welcomed as full, contributing members of society. By building on victories at the state and local levels, we’ll help shape a more inclusive narrative where immigrants are recognized as integral to making local communities stronger and healthier. We firmly believe this will help create the political conditions needed for federal reforms.”

Johanna Calle, director of the New Jersey Alliance for Immigrant Justice (NJAIJ), said:

“NILC’s Winning in the States Project is a game-changer for us. Their hands-on help with bill drafting, political strategy, and communications, along with financial support, is invaluable as we work to take advantage of pro-immigrant momentum in the Garden State this legislative session to grant access to driver’s licenses for immigrants and pass Fair and Welcoming actions at the state level.”

Nicole Melaku, executive director of the Colorado Immigrant Rights Coalition (CIRC), said:

“This legislative session, we worked to secure protections for Colorado’s immigrant communities and successfully expanded access to driver’s licenses for all. From strategic counsel in dealing with legislative leaders to support drafting legislation and crafting polling, the NILC team has become a crucial partner to us.”

Stephanie Teatro, co-executive director of the Tennessee Immigrant and Refugee Rights Coalition (TIRRC), said:

“Tennessee is one of America’s newest immigrant gateways and home to one of the country’s fastest growing immigrant populations. When our state and local policies make it easier for all families to fully participate, contribute, and belong, our whole community will be stronger.”

Andrea Williams, executive director of Causa Oregon, said:

“We’re readying to fight a November ballot initiative that would undo Oregon’s 30-year-old sanctuary policy, and the road ahead will be a challenge. We’re thankful to have a key national partner on the campaign’s executive committee helping us beat back this effort.”



The Promise of America? (The Torch)

The Promise of America?

MAY 8, 2018

Ramla Sahid on the steps of the U.S. Supreme Court.

Early in the morning late last month, while it was drizzling, cold, and still a little dark, I stood with a dozen others on the steps of this country’s highest court feeling a lot of anxiety and some hope as I waited in line to get a seat for the oral arguments in Trump’s latest Muslim ban.

When we were ushered into the gallery of the Supreme Court of the United States on April 25, 2018, I sat down on an observer bench near the mid-right corner of the audience and felt the weight of that room. Sitting there, apprehensively waiting for the oral arguments in Trump v Hawaii to begin, knowing how consequential the ultimate decision would be, I reminded myself that the fight for justice and freedom is a constant, and that whatever the result, our task is to keep that fight alive. As a former refugee from Somalia, one of the banned Muslim-majority countries, my foremost thought was, “The promise of America should be open to every human being, regardless of how they pray and how they worship.” My fear, though, was that the justices might not be taking that promise into account.

The presidential proclamation being reviewed by the Court that day was Trump’s latest directive on this issue, announced in September 2017, similar to his two previous executive orders that federal courts barred from being implemented because they were clearly intended to express Trump’s unconstitutional hostility to Muslims. Those Muslim bans were discriminatory and illegal because they banned entire populations of people based upon their religion (using national origin as a proxy).

The September proclamation has the effect of indefinitely banning from entering the U.S. people from Iran, Libya, Somalia, Syria, and Yemen — all Muslim-majority countries — and this ban is currently in effect. Its results are broken families, deferred dreams, lack of access to life-saving medical treatment, and a perversion of American principles and values. My own family fled the civil war in Somalia when I was five years old, so I know from firsthand experience what these thousands of families, students, academics, and skilled workers are experiencing, and I can imagine what it would mean to be told that the promise of America is no longer open to you.

The Trump administration’s lawyer, Noel Francisco, argued that latest directive was based on a lengthy “worldwide, multi-agency review,” but the president’s own tweets belie that fantasy. Even as the Court was considering whether to hear this case, Trump tweeted, in response to the September 15, 2017, bombing of a London subway, “The travel ban into the United States should be far larger, tougher and more specific — but stupidly, that would not be politically correct!” During his campaign for the presidency, Trump called for “a total and complete shutdown of Muslims entering the United States.”

Though given many opportunities to backtrack on that declaration, he never has, and as recently as April 30th reiterated that there was “no reason to apologize.” This statement alone undercuts Francisco’s argument that the president had disavowed his campaign rhetoric. It’s hard to predict the outcome, but I hope that the justices reject this unilateral effort to legislate unfounded fear, discrimination, and bigotry.

But there is hope. Hope because I was able to be there to bear witness to this historic moment with my community of Muslim, Arab, South Asian, and African activists from all over the country, as well as allies supporting our communities’ call for religious freedom and fairness. Our presence was felt inside and outside. And the rally held outside the Supreme Court that morning replenished my energy.

Yes, we are being threatened in bold ways, and our communities are under constant assault. But this hasn’t happened spontaneously. In fact, this is the reality of America for far too many of its citizens and residents. So we do what we have always done in this country. We resist. We continue to educate and politicize our people and allies, we organize, and we build a more connected and accountable multiracial movement.

Ramla Sahid is executive director of Partnership for the Advancement of New Americans.


3 Important Points to Know about Texas’s DACA Lawsuit (The Torch)

3 Important Points to Know about Texas’s DACA Lawsuit

THE TORCH: CONTENTSBy Ignacia Rodriguez, NILC immigration policy advocate
MAY 4, 2018

On May 1, 2018, Texas and six other states filed a lawsuit against the federal government challenging the legality of the Deferred Action for Childhood Arrivals, or DACA, program. They filed the case in the U.S. District Court for the Southern District of Texas, where it ended up being assigned to Judge Andrew Hanen. He’s the same judge who in 2014 issued an injunction that blocked the Obama administration’s expansion of the DACA program and the related Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, program.

Naturally, Texas’s latest lawsuit has created confusion and concerns about what it means for immigrant youth and the fight to protect immigrant families across the country.

Here are three important points to know about the Texas lawsuit:

1. Judge Hanen in Texas cannot undo the California and New York injunctions (currently in place) that protect DACA recipients from President Trump’s unlawful actions. Both court orders require U.S. Citizenship and Immigration Services (USCIS) to accept DACA renewal applications. Only the circuit courts of appeal corresponding to those states and the U.S. Supreme Court have the authority to undo either injunction. No case related to DACA is expected to go before the Supreme Court until after this summer. The Texas lawsuit does not change that situation.

2. USCIS is still accepting DACA renewal applications. If you are eligible to renew your DACA, we recommend that you apply to do so at this time. Here’s the reality: We don’t know what will happen next, so having DACA for an additional two years may provide some peace of mind for you and your family as all these DACA-related court cases make their ways through the courts.

3. Your voice and efforts are making a real difference. The states that filed the latest lawsuit in Texas are among the same states that sued to block the Obama administration’s expansion of DACA to protect additional immigrant youth as well as its creation of DAPA. DAPA would have allowed certain parents of U.S. citizens and lawful permanent residents to apply for and receive temporary protection from deportation as well as work permits. That first lawsuit, which was filed in the same federal court district as the present one, became known as U.S. v. Texas after the Obama administration appealed Judge Hanen’s nationwide injunction blocking DAPA and expanded DACA.

The U.S. v Texas lawsuit against DAPA and DACA+ included 26 plaintiff states. The letter from some of these states threatening to sue the federal government if DACA were not terminated bore the signatures of state officials from only 9 states. The latest lawsuit was filed by only 7 of the 26 states that sued in U.S. v. Texas.

The progress we’ve made is clear. As support for protecting Dreamers and their families continues to grow, many states and localities are hearing our voices. In fact, state officials should keep in mind that the vast majority of Americans support DACA. This indisputable fact is a testament to the work of immigrant youth and their allies. Together we must continue highlighting the importance of the DACA program and pushing for congressional action to protect immigrant youth and their families. We need the Dream Act now!

FAQ: USCIS Is Accepting DACA Renewal Applications
VIDEO: How Does a Case Make it to the U.S. Supreme Court?


Government’s Supreme Court Argument Tries to Divorce from Trump’s Own Words and Record His Ban on Travel from Muslim-majority Countries (The Torch)

Government’s Supreme Court Argument Tries to Divorce from Trump’s Own Words and Record His Ban on Travel from Muslim-majority Countries

THE TORCH: CONTENTSBy Esther Sung, NILC staff attorney
APRIL 25, 2018

Today, after two executive orders, one presidential proclamation, and fifteen months of litigation, the U.S. Supreme Court finally heard oral arguments on the legality of President Trump’s Muslim ban.

The current version of the ban blocks from entering the U.S. most travelers and immigrants from six Muslim-majority countries — Chad, Iran, Libya, Somalia, Syria, and Yemen — although Chad was recently removed from this list after improving its “identity-management and information sharing practices.” The ban also blocks travelers and immigrants from North Korea and certain Venezuelan government officials and their families.

Despite having itself been blocked by two U.S. district courts, the ban has been in place since December 4, 2017, when the Supreme Court allowed it to go into effect while it was being litigated. The U.S. State Department recently reported that in the first month of the ban, only two out of 8,406 visa applicants directly impacted by the ban were granted waivers allowing them to enter the U.S.

Indeed, of particular concern to Justices Breyer and Sotomayor in today’s argument was the possibility that the ban’s waiver provisions are merely “window dressing.” Justice Breyer pointed out that a significant number of people seeking visas probably fit within the exemplars expressly identified in the presidential proclamation as potentially eligible for an exemption from the ban. Although both justices pressed the government to explain what mechanisms are in place to ensure that the ban’s promise that waivers are available “is, in fact, a real waiver process,” the government was unable to provide substantive information about the availability of waivers. The government was only able to represent that approximately 400 individuals have received waivers — but, as Justice Breyer pointed out, 400 is paltry in comparison to the 150 million people the proclamation bans from entering the U.S.

Instead, the government focused on defending the ban before the Court as the product of a “multi-agency worldwide review that applied neutral criteria.” Throughout its argument, the government took pains to distance the ban not only from its predecessor executive orders, but also from President Trump and the many anti-Muslim statements he has made throughout his candidacy and presidency.

Neal Katyal, representing the ban’s challengers, argued that if the Court adopts the expansive view of executive power advanced by the government, the Court will be giving the president the power to line-item veto any provision of the country’s immigration laws that he wants to override. He argued that the ban countermands Congress’s finely reticulated immigration scheme, violates the Immigration and Nationality Act’s prohibition against nationality-based discrimination in the issuance of immigrant visas, and denigrates Islam in violation of the First Amendment.

It was clear that the government’s strategy depended on stripping the ban of its history and context so that the government could divorce the ban from President Trump’s many anti-Muslim statements and thereby argue that the ban is a permissible exercise of executive power. But by doing so, the government could only duck and weave around the overwhelming evidence of the president’s anti-Muslim animus, rather than confronting it head-on.

Among those present for today’s argument were Senator Mazie Hirono of Hawaii; Karen Korematsu, the daughter of Fred Korematsu, the named plaintiff in Korematsu v. United States, which upheld the imprisonment of Japanese-Americans in World War II; and Lin-Manuel Miranda, Pulitzer Prize–winning author of the musical “Hamilton.” Friend-of-the-court briefs calling on the court to strike down the ban had been filed by retired government officials and military officers; various states and major cities and counties; Amazon, Facebook, and over a hundred other companies; Catholic bishops and numerous other clergy of several different religions; universities and other institutions of higher learning; and Karen Korematsu and other children of Japanese-Americans who were held in internment camps during World War II.

A recording of today’s argument is available here; a transcript of it is available here.


Trump’s Ban As Experienced by Yemeni-Americans (The Torch)

Trump’s Ban As Experienced by Yemeni-Americans

THE TORCH: CONTENTSBy Ibraham Qatabi, Center for Constitutional Rights
APRIL 25, 2018

Today the U.S. Supreme Court will hear oral arguments on a legal challenge to President Trump’s travel ban, which bars nationals of several Muslim-majority countries from entering the United States. Countless lives lie in the balance of this decision.

In this post, I focus on the ban’s impact particularly on Yemeni-Americans and their families, as Yemen is one of the countries listed in the executive orders that initiated the ban. The ban denies U.S. citizens and lawful permanent residents of Yemeni descent who are in the U.S. the right to be with their children, spouses, and other close relatives, many of whom are stranded in third countries as they transit out of the war in Yemen.

Yemenis in America: Who we are

Yemeni-Americans have been part of the American fabric for many generations. For more than a century, they have worked on railroads and in the steel and the automobile industry stretching from Buffalo and Lackawanna, New York, to Detroit and Dearborn, Michigan. Today they run small and midsize successful businesses from New York City in the east to Oakland, San Francisco, and Bakersfield, California, in the west. Yemeni-Americans have also historically maintained close ties with both the U.S. and Yemen, with families often going back and forth between the two countries.

The ban’s implementation

Since December 2017, the Center for Constitutional Rights and many other organizations have received reports that hundreds of U.S. citizens’ spouses and children were called to come to the U.S. embassy in Djibouti, where their passports were returned, along with a document stating that they’d been denied a U.S. visa and were not eligible for a waiver. The document also stated that this decision was “final.”

Yet Muslim Ban 3.0, the latest version of the Muslim ban, which is currently in effect and which was initiated by a presidential proclamation instead of an executive order, contains a provision for granting a waiver to certain people affected by the ban. A waiver would exempt from the ban the people to whom it is granted. To qualify for it, they would have to show that they would experience undue hardship if they were denied a visa, that their entry into the U.S. would be in the national interest, and that it would not pose a threat to national security or public safety.

The proclamation lists several examples of situations in which a waiver would be appropriate and assumes that consular officers will examine whether people are eligible for the waiver on a case-by-case basis. It is striking to me how many members of Yemeni-American families would seem to qualify for the waiver, based on the proclamation’s plain language. The Yemenis who have been denied visas are overwhelmingly immediate relatives of U.S. citizens or lawful permanent residents. And due to the war in Yemen, most if not all of them experience hardship when denied reunification with their U.S.-based parents, children, or siblings. According to the United Nations, Yemen is considered “the world’s worst humanitarian disaster” in half a century.

Following the start of the war in Yemen, the U.S. embassy in San’aa, Yemen, was closed and all Yemeni visa petitions were transferred to U.S. consulates and embassies in other countries. As a result, these Yemeni relatives of Americans must travel to another country, usually Djibouti, to complete processing of their visa petitions. So not only are they stuck in limbo, they are often waiting for the bad news in third countries, far from their homes.

Thus, although the proclamation states that waivers are to be issued on a case-by-case basis and though it prohibits consular and U.S. Customs and Border Protection officers from issuing waivers to groups or categories of applicants, the U.S. embassy in Djibouti has done exactly the opposite. It has issued en masse visa denials — to children, mothers, fathers, spouses, and other relatives of U.S. citizens and lawful permanent residents seeking to reunite with their families in the U.S.

My own organization heard of more than a hundred visa denials. Some Yemenis had tales of bringing their children who needed immediate medical attention to the consular interviews; others came with a detailed waiver petition to demonstrate their qualifications for a waiver. Most, however, were not even given a chance to seek a waiver, as their interviews had taken place months prior to the decision. Some had been told that their visas were approved only to learn later that they’d been denied. In several cases we reviewed, some siblings had obtained a visa prior to the ban’s implementation, while others had not.

Nobody received a waiver.

The ban’s impact

To assess the impact of Trump’s ban and force some transparency into its seemingly arbitrary implementation, last month the Center for Constitutional Rights and a team from Yale Law School met with approximately 50 families in Djibouti — all U.S. citizens or their children, parents, or spouses. We hope to release our findings once we are able to process more thoroughly the information we gathered, including placing this recent crisis into the context of a much longer history of anti-Yemeni and anti-Muslim discrimination. For now, ahead of the Supreme Court argument, I feel it’s important to provide a few of the stories that stuck with me most, as a reminder of what’s at stake.

In one case, a three-year-old child had to be separated from his parents, who stayed behind in Djibouti while he was sent to the U.S. to be with extended family thousands of miles away. His mother was denied a visa.

In another case, a father had to choose between keeping his job in the U.S. or joining his stranded wife and children in Djibouti. When he was forced to choose the former, his children, who couldn’t understand, told him they felt abandoned by him.

And many families had to decide to return to war-torn Yemen after receiving rejections.

Trump’s ban has not only distressed Yemeni-Americans by separating families, it has created huge financial burdens. Many individuals were forced to leave their jobs or studies in the U.S. so they could support their spouses and children stranded in Djibouti, Egypt, and Malaysia. They were expecting to be in Djibouti for a few weeks and ended up being stranded for months, or in some cases a year. Life in Djibouti is expensive. The average monthly expense spending per family is about $3,000-5,000.

An uncertain future

Yemeni-Americans, like so many other impacted communities, are waiting for the Supreme Court’s decision. In Djibouti, everyone I met with wanted to know: If the Court strikes down the Muslim ban in its entirety, is the Court going to force the government to reopen the hundreds of cases that were denied because of the executive orders and presidential proclamation? Will they need to reapply and again wait an indefinite amount of time to reunite with their families? And if the Court upholds the ban, will they ever be able to reunite with their families?

Many of those I met with in Djibouti had high hopes that the Supreme Court justices will uphold the values of the U.S. Constitution, as lower courts across the nation have in these Muslim ban cases. They’ve closely followed the litigation as it has made its way up and down our judicial system, with their lives hanging in the balance. They strongly believe that, surely, although the president may have the power to make policies, he certainly does not have the power to discriminate. The detail and attention with which they’ve followed the courts’ decisions in these cases are remarkable, and they serve as a reminder to me: Regardless of what the justices ultimately decide, the fight for justice and equality will be a long one — one in which Yemeni-Americans must be fully engaged along with our fellow Americans.


Four Ways You Can Help #BringMarcoBack (The Torch)

Four Ways You Can Help #BringMarcoBack

APRIL 23, 2018

Two weeks ago, we sued the Trump administration over its decision to separate a Dreamer from his loving husband. Marco Villada is a DACA recipient who grew up in California and knows no other place as home. In 2014, he married the love of his life, Israel Serrato, and they built a vibrant life together. Despite following all the rules for adjusting Marco’s status to lawful permanent residence, Marco and Israel have been unjustly separated from each other by a consular official’s mistaken decision.

Marco is currently blocked from coming home to Los Angeles. He went to Mexico to finish the process of obtaining a visa through his marriage to Israel, trusting the adjustment process and fully believing he would be able to return. Despite assurances by immigration officials that Marco would be allowed back into the U.S., U.S. consular officials in Juarez barred him from returning.

As he has with many Dreamers, President Trump failed Marco when he cruelly terminated the DACA program. Congress failed Marco again by failing to pass the Dream Act. Now, finally, the Trump administration has failed Marco yet again by barring him from coming home and thus separating him from his husband, family, friends, and life here in the U.S.

If you stand with Marco and Israel, here are four things you can do to help #BringMarcoBack:

  1. Sign the petition urging President Trump and his administration to stop hurting Dreamers and #BringMarcoBack.
  2. After you sign the petition, spread the word! Share the petition and the video with your friends on Twitter and Facebook.
  3. Write Marco and Israel a letter of support. Separation from loved ones isn’t easy. Fighting injustice in front of the world isn’t easy, either. Let Marco and Israel know you admire their courage in standing up for themselves and for what is right. Write your letter and send it to with the subject line “Letter of Support for Marco.”
  4. Contact your senators and representatives in Congress, share Marco’s story, and demand they pass the Dream Act now. If Congress had done its job a long time ago, Marco would not be in this situation. We can’t let this kind of thing happen to any more Dreamers. You can reach out in three ways:
    Write your senators and representative a letter telling them about Marco and Israel and asking them to talk about this injustice on social media, in floor speeches, and with their colleagues.
    Call your senators and representative in Congress, share Marco’s story, and ask them to make sure all Dreamers are protected. Call 202-224-3121 and tell them to pass the Dream Act now.
    Tweet at your senators and representative! Share Marco’s story with them on social media via Twitter and Facebook.

We hope you will join us in demanding justice for Marco and Israel. Thank you for lifting your voice and spreading the word to help us #BringMarcoBack.