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NILC Statement Ahead of Confirmation Vote to U.S. Supreme Court of Judge Brett Kavanaugh

October 5, 2018

Hayley Burgess, [email protected], 202-805-0375

NILC Issues Statement Ahead of Confirmation Vote to U.S. Supreme Court of Judge Brett Kavanaugh

WASHINGTON — The United States Senate today voted to advance the nomination of Judge Brett Kavanaugh to the Supreme Court of the United States. The vote comes after a limited FBI investigation this week into allegations by multiple women who spoke out about Kavanaugh’s past actions. The Senate’s action sets up a final confirmation vote expected to take place Saturday, October 6.

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

“Kavanaugh’s record shows a dangerous disregard for the rights of women, workers, and immigrants, a disregard that was revealed when he denied the constitutional right of a 17-year-old rape survivor in immigration detention to obtain a safe abortion last year. And, at his hearing before the Senate Judiciary Committee last week, Judge Kavanaugh allowed the nation to see his true character, making it clear once again that he is unfit for a lifetime appointment to the nation’s highest court.

“In weighing whether to support Kavanaugh’s nomination, senators must not only take the allegations against him seriously, they must also recognize that in his hearing to address them, he repeatedly lied under oath, spouted conspiracy theories, and lashed out angrily at Democratic senators. This behavior is unacceptable for any position where the core responsibility is to ethically and impartially interpret our nation’s laws.

“Americans of all backgrounds believe Dr. Ford and the other women who have come forward, and we have been galvanized by their incredible strength and courage. If our country’s leaders disregard them, we all will remember and make our concerns heard with our votes.

“For women, survivors of sexual violence, and marginalized communities in particular, the courts have been a bulwark of protection and a core defender of constitutional rights. Maintaining the dignity of the Supreme Court is essential to the strength and integrity of our democracy. Its role in upholding the rights and values that we, as a nation, cherish most cannot be overstated.

“This has been a flawed process from the very beginning, and Judge Kavanaugh has failed to demonstrate — both through his judicial record and through his conduct before the Senate Judiciary Committee — that he has what it takes to be a fair arbiter on the Supreme Court. If the senate votes to confirm him, it will cause immeasurable damage that will impact the lives of everyone in this country for years to come.”

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Senate Must Not Confirm Nominee Who Disregards the Rights of the Most Vulnerable (The Torch)

UPDATE (8 AM Pacific time, Thur., Sept. 13)
The Senate Judiciary Committee this morning voted to delay — until Thursday, Sept. 20, at 1:45 PM Eastern time — its vote on whether to confirm Judge Kavanaugh’s nomination to the Supreme Court. According to the Washington Post, “The move was expected — senators routinely delay committee business for one week, which is allowed under the panel’s rules.”

Senate Must Not Confirm Nominee Who Disregards the Rights of the Most Vulnerable

THE TORCH: CONTENTSBy Jessie Hahn, Patrick O’Shea, and Josh Rosenthal
SEPTEMBER 13, 2018

Today the Senate Judiciary Committee will vote on Judge Brett Kavanaugh’s nomination to serve on the U.S. Supreme Court. This Court nomination is arguably the most consequential in at least a generation, given the likelihood that, if he’s confirmed, Kavanaugh will be the deciding vote on many critical issues currently working their way through our court system. Gaining a seat on the Supreme Court confers a lifetime duty to uphold the rights and values of our democracy, including the responsibility to protect the rights of everyone living in the United States. Kavanaugh’s judicial record shows a troubling disregard for the rights of women, workers, and immigrants, a disregard that will be dangerous for families — immigrant and native-born alike — all across our country.

One case that vividly illustrates Kavanaugh’s views on the rights of immigrants and workers, as well as his views on settled law and precedent, is Agri Processor Co., Inc. v. National Labor Relations Board, in which Kavanaugh filed a dissenting opinion as a judge on the U.S. Court of Appeals for the DC Circuit. In this case, a notoriously unscrupulous and exploitative meatpacking company had refused to bargain with the union its employees had voted to form, and it fired several employees in retaliation. The company claimed it did not have to recognize the pro-union votes of immigrant employees who didn’t have work authorization, but the company chose to investigate those workers’ employment eligibility status only after they voted to form a union. (Some employers “weaponize” their workers’ immigration status to silence those who attempt to unionize.) With one exception, every judge who heard this case rejected the company’s arguments and recognized that undocumented workers are protected by the National Labor Relations Act (NLRA). The one exception: Brett Kavanaugh.

In his dissenting opinion, Kavanaugh held that an undocumented worker “is not an ‘employee’” and should not be protected under federal labor laws. To reach this result, Kavanaugh deviated from decades of established law and precedent.

During Kavanaugh’s Supreme Court confirmation hearing, Sen. Dick Durbin (D-IL) asked him why he disagreed with every other judge who had found that federal labor law does, in fact, cover undocumented workers. Kavanaugh argued that section II(B) of a related Supreme Court case, Sure-Tan, Inc. v. National Labor Relations Board, required him to interpret the NLRA as conflicting with the “employer sanctions” provisions of the immigration statute, which require that employers who knowingly hire undocumented workers be penalized. But that section of Sure-Tan does not squarely address the question in Agri Processor, and when Congress established (in 1986) the employer sanctions referenced by Kavanaugh, it did not amend the NLRA to exclude undocumented workers from its protections.

Kavanaugh stretched the Sure-Tan opinion to achieve the result he wanted, and he got that opinion wrong. The Supreme Court reinforced this when it refused to take up Agri Processor’s appeal. By choosing not to accept the appeal, the Court left the Agri Processor majority’s decision in place; therefore, all immigrants fall within the NLRA’s coverage, all a company’s employees’ votes count in a union election, and it’s unlawful for an employer to fire its workers in retaliation for voting to form a union.

The justices who sit on the Supreme Court should work to protect the rights of all of us. If Kavanaugh was willing to depart from settled law in this case, what other precedents would he contort or ignore to reach a particular result?

Another, more recent, Kavanaugh opinion further reveals how he (mis)understands the rights of immigrants. This past October, in Garza v. Hargan, he disregarded the constitutional right of a 17-year-old girl in immigration detention to seek a safe abortion. After being raped on her journey to the U.S., Jane Doe was eight weeks pregnant when she entered the country. Due to her age and immigration status, she was placed in the custody of the Office of Refugee Resettlement (ORR), where she decided to terminate her pregnancy. She followed Texas state law and was granted a judicial bypass to receive the abortion, but federal officials in the ORR blocked her from accessing the procedure. Kavanaugh initially upheld the government’s interference with her exercise of constitutional rights, a ruling that was reversed by the full DC Circuit only four days later. Notably, Kavanaugh again dissented. He would not affirm that the U.S. Constitution’s Due Process Clause protects “any person” in the U.S, as the Constitution states, and he insisted that Jane Doe should be able to exercise her rights only if she could get herself out of immigration detention.

The role of the Supreme Court is to defend everyone’s rights under the Constitution, regardless of what we look like, where we were born, or what our immigration status may be. The Constitution’s Due Process and Equal Protection Clauses protect all “persons” in the U.S. Jane Doe’s fundamental, constitutional rights didn’t disappear simply because she was placed in a government facility. The workers at the meatpacking plant continue to be workers, regardless of their immigration status — workers who continue to be protected by the law from exploitation and abuse. Kavanaugh’s past disregard for the rights of the most vulnerable members of our society should serve as a warning to all of us who believe in a fair judiciary for all.

This confirmation vote will reverberate for generations. The publicly available aspects of Kavanaugh’s record make clear that his extremist views would turn back the clock on some of our most cherished rights. The Senate has an important role to play — it must not confirm someone who could cause irreparable damage to our rights for decades to come. Call your senators at 1-202- 224-3121 and ask them to vote “no” on Kavanaugh’s confirmation.

Jessie Hahn is NILC’s labor and employment policy attorney, Patrick O’Shea is NILC’s research and narrative strategist, and Josh Rosenthal is a NILC staff attorney.


Information Vacuuming: Massive Collection of Data for Government’s Surveillance and Deportation Machine (The Torch)

The Trump Administration Is Collecting Massive Amounts of Data for Its Immigrant Surveillance and Deportation Machine

AUGUST 22, 2018

The Trump administration is vacuuming up vast amounts of unfiltered information about immigrants and United States citizens in the service of its immigrant surveillance and deportation machine. Here are a few of the ways this information collection occurs.

Visa Lifecycle Vetting

Tracking and monitoring immigrants is official government policy.

In July 2017, the U.S. Department of Homeland Security (DHS) met with vendors to plan “a continuous vetting strategy, framework and process.” At first, DHS called this strategy the Extreme Vetting Initiative. Later, DHS changed the name to the more innocuous-sounding Visa Lifecycle Vetting. But its aim is the same: to serve as a “backdoor” barricade to many immigrants, including those targeted in Trump’s Muslim bans, to reduce access to legal pathways to immigration status, and to funnel immigrants into the deportation pipeline.

According to DHS’s Statement of Objectives for the initiative, “The gaps in the current vetting model along with existing limitations in the vetting process create a compelling case for [U.S. Immigration and Customs Enforcement] to take action to develop and implement a continuous vetting strategy, framework and process” (see “Attachment 1: Extreme Vetting Initiative: Statement of Objectives (SOO),” file name “Attachment_1-_SOO_-_12_June_2017_final”).

The Trump administration is seeking to expand screening and monitoring at all stages — before and after a non–U.S. citizen obtains lawful immigration status and even, according to other DHS DHS notices, after lawful permanent residents become naturalized citizens. This is happening at the same time that DHS has announced it will aggressively target naturalized citizens to strip them of their U.S. citizenship.

This strategy is part of the larger Trump agenda to criminalize, surveil, and police immigrants and communities of color generally.

Tracking Social Media and Internet Use

One important component of the plan is that DHS plans to monitor immigrants’ and naturalized citizens’ social media and other Internet activity. The U.S. State Department also recently proposed requiring applicants for immigrant and nonimmigrant visas to disclose their social media handles.

Recently, DHS announced the creation of the External Biometrics Record System of Records (EBR). DHS claims that EBR allows DHS only to “receive, maintain, and disseminate biometric and associated biographic information from non-DHS entities, both foreign and domestic.” But EBR also will include identifiers for derogatory information, miscellaneous officer comment information, and encounter data. And it will include “records related to the analysis of relationship patterns among individuals and organizations.” These items are undefined and unlimited in scope.

Relying on Commercial Database Aggregators

In 2018 U.S. Immigration and Customs Enforcement (ICE) announced its intent to award a contract to Thomson Reuters “for subscription data services” that would allow “continuous access to commercial database aggregators and real time jail booking databases.” As the Statement of Work makes clear, the system would have to obtain data from “FBI numbers; State Identification Numbers; real time jail booking data; credit history; insurance claims; phone number account information; wireless phone accounts; wire transfer data; driver’s license information; vehicle registration information; property information; pay day loan information; public court records; incarceration data; employment address data; Individual Taxpayer Identification Number (ITIN) data; and employer records.”

The government’s use of systems that sweep up massive quantities of unverified and random information is often done through outside companies, with little public scrutiny or accountability. For example, DHS has also relied on a company called Palantir to develop systems such as Investigative Case Management (ICM) that, according to The Intercept, will enable ICE to obtain access to a vast “ecosystem” of data to use in deportation cases.

Creation of Giant Information Database

Even more ominous, EBR is part of DHS’s under-the-radar creation of a vast database called Homeland Advanced Recognition Technology (HART), which will replace DHS’s current biometrics database IDENT. HART will centralize access to federal and international databases, provide real-time access in the field, and involve the use of “multi-modal biometrics” (e.g., facial and iris recognition, in addition to fingerprints).

As the Electronic Frontier Foundation recently pointed out, DHS has been “quietly building” Hart, without the benefit of public scrutiny. The EBR notice confirms that the database contains much more than biometric information, including derogatory information, miscellaneous officer comment information, and encounter data, as well as relationship patterns.

Automated License Plate Readers (ALPRs)

Another component of the continuous monitoring strategy is the use of automated license plate readers (ALPRs). These readers are cameras that may be mounted on a fixed object such as a road sign or on police cars. They take pictures of passing cars indiscriminately, recording license plates and date and time of capture. In a December 2017 Privacy Impact Assessment, DHS announced its contract with an unnamed vendor for LPR data service to be used by the ICE Offices of Enforcement and Removal Operations (ERO) and Homeland Security Investigations (HSI).

A subsequent article in The Verge disclosed that the company is called Vigilant Solutions. Vigilant Solutions’ LPR database will collect data from local law enforcement agencies and private companies such as repossession companies. ICE can query the database for historical information that shows a license plate’s movements over the past five years. ICE can also receive an instantaneous email notice when a license plate that has been uploaded to a “hot list” appears.

DHS has outsourced oversight over the program. Vigilant is a private company, not subject to the federal Privacy Act or the Freedom of Information Act. And Vigilant has refused to provide any details about its contract. As the Privacy Impact Assessment makes clear, it’s up to the commercial vendor to adhere to privacy, disclosure, and other requirements.


The Trump administration is implementing a sweeping system of monitoring and surveillance of immigrants and naturalized U.S. citizens. Given the potential consequences for these individuals, and the threats to privacy of all residents, it’s critical that we understand and are able to challenge the deployment and use of these systems.

Joan Friedland is a NILC consultant and the primary author of our report “Untangling the Immigration Enforcement Web.” She formerly was a managing attorney at NILC.


Questions Remain Weeks After Trump Administration Fails to Reunite Children and Parents (The Torch)

Questions Remain Weeks After Trump Administration Fails to Reunite Children and Parents


By NILC staff
AUGUST 14, 2018

President Trump’s family separation policy has harmed about 2,500 migrant children over the past several months, and serious questions remain about how the administration is treating immigrant families once they are reunited.

Is the administration respecting immigrant parents and children’s rights in immigration court? What specific conditions have parents and children been forced to endure inside immigrant family jails? How, exactly, are migrant families being treated by our government?

To find out, we filed a Freedom of Information Act (FOIA) request last month on behalf of the Immigrant Defenders Law Center, an organization that represents several families who have experienced the cruel and inhumane consequences of the Trump administration’s family separation policies.

After the administration’s actions sparked weeks of public outrage nationwide, a U.S. district court judge in San Diego ordered the government to reunite families by July 26 and to halt the deportation of reunited families who are entitled to asylum proceedings. These orders were issued in a lawsuit filed by the ACLU, Ms. L v. ICE.

Nevertheless, here we are, weeks after the court-ordered July 26 deadline, and hundreds of children are still separated from their parents and locked away in government custody. To make matters worse, stories have emerged of U.S. Immigration and Customs Enforcement coercing parents of children from whom they are separated to sign away their rights. Trump officials have even admitted that the parents of as many as 386 children from whom the parents were separated may have been deported.

To get to the bottom of these abuses, our FOIA request seeks information regarding the following:

  • records related to the policies, forms, and checklists governing background checks and reviews for parentage
  • records related to the policies governing whether parents who have previously been released from detention will be re-detained with their children following reunification
  • what factors are considered in determining whether a family will remain detained together or released upon reunification
  • records related to the policies governing children who remain in the Trump administration’s custody whose parents have been deported

While we wait for the Trump administration to answer our request, here’s what we do know. According to research cited by the Kaiser Family Foundation, “Separating children from their parents exposes them to trauma and toxic stress that can have lifelong negative impacts on their mental and physical health.” Each day, each hour these children remain separated from their parents and families has alarming implications for their personal well-being and their families’ health.

We demand that the Trump administration stop dragging its feet. It’s time to reunite all the families it has torn apart and take responsibility for the human rights abuses it has perpetrated. NILC will not stop fighting for accountability and greater transparency. We need answers, and we need them now.

More on how the Trump administration is harming children and families


Should I renew my DACA now? (The Torch)

UPDATE – AUGUST 31, 2018: In an order filed on Fri., Aug. 31, the U.S. District Court for the Southern District of Texas declined to issue a preliminary injunction that might have affected the ability of people with DACA to apply to renew their DACA. In the coming days, NILC will be updating its DACA-related materials to reflect the effects of the Aug. 31 ruling.

Should I renew my DACA now?


By Ignacia Rodriguez, NILC immigration policy advocate
AUGUST 7, 2018

Lately people have been asking, Why the uptick in chatter about renewing DACA now? Starting this summer, advocates began encouraging people to renew as soon as possible, even though the option to renew has been around since January.

What changed? Remember, U.S. Citizenship and Immigration Services (USCIS) did not begin accepting DACA renewal applications voluntarily. USCIS began accepting DACA renewal applications again only because federal judges in California and New York ordered it to. Court orders, as we’ve seen most recently in the Texas case that blocked DAPA (Deferred Action for Parents of Americans) and expanded DACA and also in the Muslim ban court cases, can change over time. A judge’s order can be appealed by the party that disagrees with it, and at the appellate stage the order can continue in effect, can be paused or reversed, or can be modified.

We knew the decisions issued in these cases would probably be appealed (usually a U.S. district court decision is appealed to the court of appeals for the “circuit” corresponding to the state where that district court is located) and that at least one of these cases could then make its way all the way to the U.S. Supreme Court. The probability of an appeal became reality when the federal government appealed the decisions issued by the courts in California and New York.

Litigating a case takes time. Time is allotted for each party to submit briefs that lay out its arguments, and the court schedules hearings as necessary to hear the parties’ arguments. It is very rare for a judge to issue a ruling during or immediately after a hearing, so days, weeks, even months can go by before the judge issues a ruling. This is why, before this summer, some experts expected the DACA renewal process to be available at least through this month (August 2018) and maybe longer. In addition, the U.S. Supreme Court won’t be back in session until October, so under usual circumstances it wouldn’t hear an appeal of one of the DACA cases before then.

So what happened this summer? Back on May 1st, Texas and six other states filed a lawsuit arguing that the DACA program is illegal and shouldn’t have been created in the first place. They are asking for a court in Texas to order USCIS to stop accepting DACA applications. On August 8, U.S. District Court Judge Andrew Hanen will hold a hearing in their case in Houston, Tex.

Nobody knows for certain what will happen either during this hearing or afterwards, including how a possible negative ruling by a judge in Texas will affect the orders issued by federal courts in California and New York. It is unlikely that Judge Hanen will issue a ruling or order on August 8. But some experts think it’s at least possible that USCIS could stop accepting and processing DACA renewal applications as early as the end of August. Depending on what happens in the courts, the option to renew may remain indefinitely or may be modified or eliminated by decisions in these district courts, circuit courts of appeals, or the U.S. Supreme Court.

Should you renew your DACA now, even if your DACA expires in February 2019? May 2019? December 2019? You will need to decide whether it makes sense for you to apply for DACA renewal now. We highly encourage you to speak with an attorney or a Board of Immigration Appeals–accredited representative before you submit a renewal application, to discuss the possible benefits and risks of applying early. Some attorneys or accredited representatives may advise you against applying now, because USCIS used to not accept renewal applications filed more than 150 days before the applicant’s DACA expiration date. However, since it became possible again, in January, to apply for DACA renewal, USCIS has accepted renewal applications filed more than 150 days before expiration.

Still, you must consider the risks and benefits of applying early. Considerations include but are not limited to:

• If you apply early, USCIS could deprioritize your application and, while you’re waiting for your case to be processed, the option to renew may end. If the option to renew ends, USCIS may “grandfather in” already-accepted applications and continue processing them or USCIS may stop processing already-accepted applications and may return the application fees that were submitted with the unprocessed applications (like what happened when DACA and advance parole for DACA recipients were terminated in September 2017). Can you afford to lose the $495 fee if USCIS decides not to return fees? Can you afford to send your application by certified mail, to have an additional way of tracking it, to prove that it should be “grandfathered in” if the government decides to process already-submitted applications?

• If you apply early and are granted DACA renewal, your “new” DACA and work permit may start being valid before your “old” DACA and work permit expire. Nevertheless, your new work permit will expire two years after its date of approval. Currently, it’s taking USCIS about 3-5 months to adjudicate an application, but some applications have been adjudicated faster.

Example: Your current DACA and work permit expire in December 2019. You submit a renewal application today, and USCIS accepts it. USCIS grants your DACA renewal in October 2018. Therefore, your renewed DACA and work permit will expire in October 2020. In other words, by applying now, you may gain a total of only 10 more months of DACA and work authorization. You must ask yourself: Is having those 10 additional months of DACA worth the effort and expense of applying? Will I feel more at peace knowing I have more time with DACA, even if it’s only 10 months? What will I feel like if the court orders that require USCIS to accept DACA renewals remain in effect for months or even years?

If you decide to go ahead and apply now, we recommend doing so as soon as possible, since the situation with the court cases is so uncertain. We wish we could answer with a simple “yes” or “no” when people ask us whether they should apply now, but, along with everyone else, we simply don’t know now what will happen in the courts in the next weeks and months. But we will continue to provide information and updates to help you plan for your future.


Where Are the Children? Not in Trump’s Priorities (The Torch)

Where Are the Children? Not in Trump’s Priorities


By Mayra E. Alvarez, President, The Children’s Partnership
JUNE 26, 2018

Around the world and on both sides of the political aisle, the safety of children is upheld as a universal value. The U.S. has established special protections for children — courts may give special consideration to what is in the best interests of a child in issuing judgments about their well-being. The children of the president and other elected leaders are traditionally “off limits” to reporters. Even celebrities are afforded a degree of privacy from the paparazzi to ensure their children’s safety. With good reason, it is understood that children deserve special status and need to be protected and taken care of — not only by their parents, but by all of us in society. Yet that universal value has been abandoned by the Trump administration, as it recklessly implements policies that separate children from their families, inflicting serious trauma.

Since the beginning of the Trump administration, harsh immigration policies and anti-immigrant rhetoric have instilled a deep and growing fear inside many communities, threatening the health, security, and well-being of children in immigrant families. Eighteen million children in the U.S. — 4.5 million children in California alone — are part of an immigrant family, many living in fear as to what may happen if their parent is deported or detained. Millions of Dreamers are stuck in limbo, uncertain of their long-term future. Workplaces are being raided and detained mothers and fathers taken away from their children. Parents who were once protected by temporary protected status (TPS) now must decide whether to leave their U.S.-citizen children behind or take them to countries still reeling from disaster.

Most recently, the troubling “zero tolerance” policy, which imposes criminal penalties meant to deter immigrant families from coming to our country seeking asylum, is just another example of this administration’s attack on children.

Dr. Colleen Kraft, the president of the American Academy of Pediatrics, referred to the separation of children from their parent as “government-sanctioned child abuse.” Separating children from their parents causes them trauma and toxic stress that can have lifelong negative impacts on their mental and physical health. In the short term, the trauma and stress impair a child’s ability to concentrate, remember things, and control and focus their own thinking. In the long term, they place children at risk of heart disease, diabetes, and cardiovascular disease.

Click on infographic to enlarge.

From the children directly impacted by the separations to the millions of children in immigrant families across the country, the damage is done. In a survey The Children’s Partnership conducted of health providers in California, 90 percent reported an increase in children experiencing anxiety and fear related to their heightened awareness of the possibility of detention and deportation, because of the current national climate. These negative health impacts due to unjust policies that separate families go against American values of inclusion and equality. Whether it happens at the border, through detention, or deportation later in life, the damage is detrimental.

What’s worse? The executive order signed last week by President Trump is not a solution. First, it does nothing to address the trauma experienced by more than 2,000 children already separated from their parents. Second, it seems to say that imprisoning whole families is an acceptable path forward when we know family detention has repeatedly been found to be unsuitable for children. The inhumane conditions that these children face while in detention centers — caged, as well as physically and emotionally neglected — are devoid of compassion and decency. This simply trades one source of childhood trauma for another.

The climate of fear, the separation and detention of families, and the uncertainty of the future compels every American to ask, “Where are the children?” in the Trump administration’s priorities. Children in immigrant families are enduring toxic stress, anxiety, and other longstanding negative health impacts due to unjust policies that separate families, traumatize children, and go against American values of protecting children. As an organization that focuses on putting our children’s well-being first in policymaking, The Children’s Partnership denounces the Trump administration’s policies and implores Congress to stop these cruel practices, put our nation’s values into action, and advance policies that defend and protect the dignity and rights of all children.


Trump Executive Order Makes Border Crisis Worse

June 20, 2018

Hayley Burgess, [email protected], 202-805-0375

Trump Executive Order Makes Border Crisis Worse

Jailing families is not a solution

WASHINGTON — President Trump has signed an executive order mandating that families be jailed by the U.S. Departments of Homeland Security or Defense. This order will likely have the effect of jailing, for months or even years, immigrant families seeking safety in the U.S. The National Immigration Law Center has long decried the practice of jailing immigrant families, filing lawsuits when necessary to defend their rights. Below is a statement from Marielena Hincapié, executive director of the National Immigration Law Center, who visited family detention facilities in 2014:

“The Trump administration has created a crisis and committed horrific human rights abuses by separating children from their parents at the border. Clearly on the defense, today it used a political sleight of hand to try to placate Americans who have been rightly outraged by their government’s repugnant policies, including separating children and babies from their parents and housing them in cages.

“Jailing families is not an acceptable solution to putting children in cages. The best — and safest — place for these children is with their families and in their communities. The Trump administration pretends that alternatives to detention don’t exist. This is false. There are numerous alternatives that are both more humane and less costly, but this president refuses to use them. Our country has a system in place to process asylum claims, and these families should be allowed to go through this legal process.

“The Trump administration may not care much for the basic constitutional rights of people seeking safety. We do, and we’ll work with communities and in courtrooms to protect them. Not a single one of us should be standing on the sidelines as this administration inflicts lifelong trauma on these children. It is up to all of us to hold this administration accountable and stop this nightmare.”



Untangling Trump’s Mass Deportation Agenda (The Torch)

Untangling Trump’s Mass Deportation Agenda


By Mahnoor Hussain, SAALT policy associate
JUNE 13, 2018

Since its colonization of indigenous lands, the United States has built its immigration policies on principles of racial exclusion and exploitation. The immigration struggles that our communities face today are not unique to the Trump administration but are the culmination of a series of discriminatory policies on which this country was built.

  • The Naturalization Act of 1790 established citizenship for “free white persons,” excluding millions of enslaved African Americans who were forced to give their lives and freedom to build America.
  • The Immigration Act of 1882 allowed screening of arriving passengers to bar the entry of those deemed a “convict, lunatic, idiot, or person who may become a public charge.”
  • The Chinese Exclusion Act of 1882 suspended immigration of Chinese laborers and set a precedent for the establishment of discriminatory race- and class-based immigration laws in the U.S.
  • In 1996, the Clinton administration implemented the Illegal Immigration Reform and Immigrant Responsibility Act, which laid the groundwork for the immigrant criminalization and deportation policies we have today.
  • In 2002, the Bush administration launched the Secure Communities program and began 287(g) agreements, essentially deputizing local police officers with immigration enforcement power, which paved the way for current anti-sanctuary legislation in states across the country.

Under the Clinton administration, 12 million deportations occurred between 1993 and 2000; under the Bush administration, over 10 million deportations occurred between 2001 and 2008; and under the Obama administration, 5 million deportations occurred between 2009 and 2016. President Trump is exploiting the tools and infrastructure set in place by previous administrations to (1) expand the definition of who should be banned and deported and (2) militarize federal agencies and build up the deportation machine.

The MUSLIM BAN is linked to REFUGEE policy, which is linked to TPS, which is linked to DACA, which is linked to H1-B AND H-4 VISA policy, which is linked to WORKSITE RAIDS, which are linked to FAMILY IMMIGRATION, which is linked to DENATURALIZATION, which is linked to DEPORTATION, which is linked to INCARCERATION — which all together comprise a broken immigration system.

By terminating the Deferred Action for Childhood Arrivals (DACA) program, rescinding temporary protected status (TPS) for people from certain countries, issuing the Muslim ban, and banning certain refugees, the current administration has made clear that its agenda is to bar entry of immigrants and deport both documented and undocumented individuals. Our immigration struggles are linked to this larger agenda of exclusion and expulsion.

In January 2017, President Trump signed an executive order essentially prohibiting people from seven Muslim-majority countries from entering the U.S., a policy now referred to by many as the Muslim ban. As a result of legal challenges brought against it, Trump has issued three different iterations of the ban, the third of which is awaiting a decision by the Supreme Court. Refugees who are racialized as Black and/or Muslim have also been barred from entering the country. In the first three months of 2018, 5,225 refugees have been resettled in the United States, a 65.8 percent drop from the first three months of 2016. Only 11 Syrian refugees have been granted entry into the U.S. in 2018. In June 2018, Attorney General Jeff Sessions and the U.S. Department of Justice established a “zero tolerance policy” to criminally prosecute asylum-seekers as they enter the U.S. This administration has not only made it impossible for immigrants of color to enter the U.S., but has forced our communities to live in constant fear of deportation.

Individuals from countries on the Muslim ban list, such as Syria, Somalia, and Yemen, are also facing the rescission of temporary protected status (TPS). TPS enables nationals of designated countries who are in the U.S. to live and work here if their country is facing war, disease, or natural disaster. Often these conditions are a result of previous U.S. intervention in these countries and result in long-term, endemic challenges that require decades of recovery.

Desis Rising Up and Moving (DRUM), based in New York City, coproduced (with MoveOn and United We Dream) a video that connects the fight to protect DACAmented and undocumented folks with the fight against the Muslim registry. DRUM is also addressing an additional concern about personal information provided by both TPS and Deferred Action for Childhood Arrivals (DACA) recipients being at risk of cross-agency data sharing. There is no guarantee that U.S. Citizenship and Immigration Services (USCIS) information on current and former recipients of TPS, DACA, and their undocumented family members is not accessible by U.S. Immigration and Customs Enforcement (ICE) and U.S. Customs and Border Protection (CBP). Undocumented immigrants and temporary visa–holders registered for these programs in confidence that their personal information would not be used to deport them, and now their trust and safety may be violated.

This administration has drawn a wedge between recipients of DACA and H1-B and H-4 visa–holders. Some H-4 visa recipients feel that their struggle has been overlooked by the “noise” on the DREAM Act. This administration uses divisive tactics to make it harder for immigrants to stay in the U.S., whether they are H1-B and H-4 visa–holders or TPS or DACA recipients. If and when these groups lose their status, they become part of the ever-expanding population that’s particularly vulnerable to being deported. This is an opportunity to confront the larger white supremacist deportation agenda led by this administration, which has failed to create meaningful pathways to permanent residence and citizenship for all immigrant communities.

As part of this administration’s ongoing deportation agenda, the last six months alone have seen the largest workplace raids under the Trump administration. Nearly 200 individuals were arrested and detained in Tennessee and Ohio, and one-hundred 7-Eleven stores were raided across the country.

In their continued attack on low-income immigrants and families, the Trump administration is intending to expand the criteria for finding that a person is likely to become a public charge, i.e., likely to become dependent on the government for subsistence. An immigrant found likely to become a “public charge” may be denied a visa or lawful permanent resident status. Under a new proposed rule whose provisions were leaked to the press earlier this year, a person could be found likely to become a public charge if they were unemployed, retired, and/or disabled — or if their U.S. citizen children benefit from the Children’s Health Insurance Program (CHIP), SNAP (“food stamps”), or if they attend Head Start. Penalizing immigrants for utilizing social services is a calculated policy by this administration to limit legal permanent residence, and it represents a direct attack on the possibility of immigrant families here reuniting with their loved ones abroad who are seeking to immigrate.

Another deliberately anti-immigrant piece of legislation, H.R. 4760, the Securing America’s Future Act (also known as the Goodlatte bill), which will come to a vote any day now and is being framed as a compromise solution for DREAMers, attacks family immigration by cutting entire categories of visas that help families reunite. The Goodlatte bill also would criminalize the undocumented population by making their mere presence a criminal violation. The bill also would separate vulnerable children and families seeking asylum at the border by sending parents to criminal proceedings and inhumanely placing their children in detention centers hundreds of miles away. Despite all these unimaginable enforcement-oriented provisions, the bill provides only temporary second-class protection to DACA recipients.

This administration doesn’t limit its deportation targets only to visa-holders and undocumented immigrants, it is also quietly denaturalizing and deporting naturalized citizens through the U.S. Department of Homeland Security’s (DHS’s) Operation Janus. According to USCIS, failure to comply with any eligibility requirement for naturalization is subject to revocation of naturalization. DHS identified about 315,000 cases of “missing” fingerprint data from the centralized digital fingerprint repository. The U.S. Department of Justice filed civil denaturalization complaints against Baljinder Singh of New Jersey, Parvez Manzoor Khan of Florida, and Rashid Mahmood of Connecticut under Operation Janus. In January 2018, Baljinder Singh was denaturalized by the USCIS.

The administration has used an anti-immigrant and xenophobic political framework to promote an intersectional web of negative policies that affect all of our communities, and we must use an intersectional analysis to counter this violence and discrimination.


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.