Border and Enforcement News

Posted on: June 28th, 2017
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Siskind’s Summary of Supreme Court Decision Barring Favoring Mothers Over Fathers in Citizenship Case

On June 12, 2017, the Supreme Court ruled in the case of Sessions v. Morales-Santana that rules governing the citizenship at birth claims of children born out of wedlock to a US citizen parent and a non-US citizen parent could not discriminate based on whether the US citizen parent was the father or the mother.

The general rule for transmitting citizenship to children born to a US citizen parents and a non-US citizen parent is contained at 8 U.S.C. §1401(a)(7) and for people born when Respondent Luis Morales-Santana was born, a US citizen parent would need to have been married and present in the US for ten years prior to the child’s birth with five of those years after reaching the age of 14.

The rule is applicable as well in cases of unwed parents when the US citizen is the father. When the US citizen parent is the mother and is not married to the father, the rules are different and only requires the mother to have lived in the US for one year prior to the child’s birth.

In this case, Mr. Morales-Santana has lived in the US since the age of 13. His biological father is a US citizen who was born in the US and moved to the Dominican Republic at the age of 19, just 20 days shy of meeting the five years requirement. Morales-Santana was convicted of various criminal charges and the government sought to remove him from the US. Morales-Santana claimed to be a citizen at birth and was rejected by an immigration judge and later challenged the law saying he was denied equal protection because fathers were treated differently than mothers. The case worked its way up to the Second Circuit which held in Morales-Santana’s favor.

The Supreme Court agreed that the statute’s gender line is an unconstitutional violation of the Fifth Amendment’s Equal Protection clause. The government must show that gender-based rules serve important governmental objectives and such rules must be related to meeting those objectives.  Unwed fathers are not less qualified to take responsibility for children so the Government doesn’t survive heightened scrutiny.

The Court ruled that Congress would need to figure out how to select a uniform prescription that neither favored nor disadvantaged any person on the basis of gender. In the interim, the rule applicable to married parents and to unwed US citizen fathers will apply prospectively to children born to unwed US citizen mothers.

Justice Ginsburg was joined by Justices Roberts, Kennedy, Breyer, Sotomayor and Kagan. Justices Thomas and Alito issued an opinion concurring in the judgment in part. Justice Gorsuch took no part in the consideration or decision in the case.

For more information, view the full case.


Visas to Muslim-majority countries down 20 percent

Data posted online by the State Department suggested that non-immigrant visas granted to individuals from nearly 50 Muslim-majority countries declined nearly 20 percent in April 2017, when compared to the 2016 monthly average. That figure increases to 30 percent when only Arab countries are considered, and visas issued to the six countries included in Trump’s March 6 travel ban, Iran, Syria, Sudan, Somalia, Libya, and Yemen, declined 55 percent from the 2016 monthly average. While the State Department previously released the March data which indicated a decline, the declines which occurred in April were far more drastic.

Prior to spring 2017, the State Department released annual totals, not monthly breakdowns of visas. By dividing the annual total by 12, a monthly average is reached. This average is not entirely accurate, according to William Cocks, a spokesman for the State Department’s Bureau of Consular Affairs, “Visa demand is cyclical, not uniform throughout the year, and affected my various factors at the local and international level.” Cocks elaborated by stating, “Visa issuance numbers tend to increase during peak travel seasons, such as during the summer and the winter holidays, though there may be different trends at the country, nationality, or visa-category level.” Though even viewing the data through that lens, the fluctuation observed in March and April is significantly larger than previously seen in those months, according to a number of immigration experts.

Non-immigrant visas issued to individuals from all countries fell 15 percent in April when compared to the 2016 monthly average, possibly pointing to the Trump administration policies discouraging visits to the United States across the globe. Since the State Department did not release how many people applied for or how many of those were rejected, it is more difficult to precisely identify the causes for these declines. Without this release, it remains impossible to accurately differentiate how much of the decline can be attributed to fewer people aspiring to visit the United States, and how many people are being denied entry by the government. The drop does coincide, however, with Trump’s crackdown on immigration, implemented with the purpose of protecting national security. In April, visas were issued to 69,000 individuals from nearly 50 Muslim-majority countries, while the 2016 monthly average was 85,790. When accounting for the 22 states in the Arab League, roughly 24,000 visas were issued, compared to the 2016 monthly average of 34,000. The six countries named in the second travel ban all experienced large drops in visa issuance, but the significance of these drops varied based on the number of individuals previously sent to the United States. For example, Somalia experienced a 68 percent decrease in April, but this percentage is based on only 451 Somalis receiving non-immigrant visas in April 2016. The opposite end of the spectrum is Iran, which saw a significant 52 percent drop from its total of 29,000 non-immigrant visas received in 2016.

Edward Alden, a senior fellow at the Council on Foreign Relations, stated “the uproar over the travel ban” could be disparaging to individuals from all backgrounds from attempting to enter the country. Alden added the new State Department guidelines sent to consulates around the globe likely magnified screening and stalled visa approvals. “We are probably also seeing the real effect of somewhat more rigorous processes at the consulates,” he said. Alden formed a parallel between the current situation and the fallout in the wake of the September 11th terrorist attacks. In an October 2016 report which was co-authored by Alden, he predicted that Trump’s campaign proposal to ban Muslims, if it were to be enacted, would result in between $36 billion to $71 billion in annual economic losses from falling tourism, travel, and foreign student enrollment.

For more information, view the full article.


Immigration Judge Orders Release of DACA Seeker

An Immigration Judge ordered the release of a woman whom the government sought to deport, rejecting arguments suggesting that two arrests at demonstrations supporting people illegally present in the United States justified forcing her to wear a monitoring device. Claudia Rueda, a 22-year old California State University student, wants to apply for Deferred Action for Childhood Arrivals (DACA), a program implemented in 2012 under President Barack Obama which aims to protect immigrants who came to the United States as young children from deportation.

This case is particularly noteworthy because not only is she an outspoken immigration activist but also has no criminal record. Annie S. Garcy, the Immigration Judge who ruled on this case, noted Rueda’s academic and extracurricular accomplishments when elaborating on her opinion that holding Rueda without bond would be “unduly severe”. Garcy ruled on this case because she is on temporary assignment from Newark, New Jersey, after higher priority was placed on cases along the United States border with Mexico. When a government attorney requested that the judge force Rueda to wear a monitoring device, she responded, “Wow, an ankle bracelet? Really?” The attorney argued that prior arrests, one for trespassing and another for disorderly conduct warranted the monitoring device. Rueda’s attorney noted that those arrests took place during peaceful protests in support of people in the country illegally, and Rueda was only charged in one case, which was dismissed.

Rueda was arrested on immigration charges on May 18 outside a relative’s home in Los Angeles. U.S. Border Patrol stated the arrest was in connection with a drug smuggling investigation. Her mother was arrested on immigration charges in April in connection with the same investigation and was later released from custody; neither of the two were arrested on drug charges.

U.S. Immigration and Customs Enforcement stated that it would adhere to the order to release Rueda and consider any other requirements laid out by her attorney.

For more information, view the full article.


U.S. Citizen Asserts Rights Violation After Detainment by Immigration Authorities

When a San Bernardino County sheriff’s deputy requested that Guadalupe Plascencia sign papers related to her immigration status, it raised suspicion in the 59-year-old hairdresser. On March 29, she spent the night in jail because of a 10-year-old bench warrant tied to her alleged failure to appear as a witness in a court case. However, the citizen of San Bernardino said that during her stay, a deputy asked her to sign documents acknowledging that United States Immigration and Customs Enforcement (ICE) officials inquired about her. “Why?” A confused Plascencia asked. “I’m an American citizen.” The bewildered and frightened Plascencia accommodated the request, convincing herself that the whole situation was a mistake that would soon resolve itself. When she attempted to exit the West Valley Detention Center in Rancho Cucamonga, she said that she was approached by immigration enforcement agents, who handcuffed and placed her in the back of a van.

Despite becoming an American citizen more than 20 years ago, Plascencia spent the rest of the day dreading deportation in the custody of ICE. “I felt hopeless, like I was no one,” she recounted of the incident. “Here, they talk about rights… in that moment I realized, we don’t have rights.” The exact duration of her stay is not precise, but Plascencia asserts that she presented a valid driver’s license when she was arrested and continually professed her citizenship to both the ICE agents and deputies. While she was eventually released, following her daughter’s presentation of Plascencia’s passport, she subsequently took the initial steps for filing a lawsuit against the federal immigration agency and the San Bernardino County Sheriff’s Department which raises the question of why an American citizen was in the custody of immigration enforcement agents. On March 30, the same day that she was to be released from jail, ICE issued a detainer request for Plascencia, according to a statement from San Bernardino’s Cpl. Reuben Perez. These detainer requests are distributed by ICE when police have arrested someone immigration officials suspect of being in the country illegally and would like to take into custody. Perez stated that sheriff’s officials did not reach out to ICE regarding Plascencia’s immigration status, which would have been against department policy. The department did, however, submit her fingerprints into an electronic database which is accessible by federal and state law enforcement agencies, a practice that is standard policy for law enforcement. A statement provided by ICE noted, “ICE would never knowingly take enforcement action against or detain an individual if there was evidence indicating the person was a U.S. citizen. Should such information come to light, the agency will take immediate action to address the matter.” Wong contends that the deputies purposefully prolonged Plascencia’s release for the purpose of providing ICE agents adequate time to arrive and detain her.

The San Bernardino Sheriff’s Department, much like other state departments, attested that it does not honor ICE detainer requests due to inquiries surrounding the constitutionality of the practice. However, San Bernardino Sheriff John McMahon has stated his desire to identify ways to work more closely with immigration authorities while still operating within the law. “To be quite honest, those that are wanted by ICE, that are detained in our facilities, are dangerous criminals,” he said in February. “If we allow that inmate to walk out of our jail, and ICE isn’t there to pick them up, that inmate returns to the community. That could pose a danger for the public that we serve and try to protect.”

For more information, view the full article.


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