The Immigrant's Journal - Vol. 112

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Vol. 112

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Immigration Agencies’ Intrusive Searches of Cell Phones and Laptops Are Ruled Unconstitutional

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phones and laptops of anyone arriving in the United States, including U.S. citizens and lawful permanent residents.

In Alasaad v. McAleenan, ten U.S. citizens and one lawful permanent resident challenged these policies, arguing, in part, that they violate the Fourth Amendment to the U.S. Constitution.

The court agreed.

Generally, the Fourth Amendment protects against unlawful searches or seizures and requires that law enforcement officers have a warrant before they can search someone or their property.

However, there is an exception to this warrant requirement for searches at a U.S. border. Law enforcement officers continued on page 4

Those Who Put Their Lives on the Line to Serve Their Country Deserve Citizenship.

Instead, Some Are Being Deported.

BY JENNIE PASQUARELLA

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or more than 200 years, Congress has promised immigrant recruits expedited citizenship in exchange for military service: if you are willing to make the ultimate sacrifice for this country, we will honor your sacrifices with citizenship.

But since 1996, the United States has betrayed that promise. We have instead deported thousands of our veterans.

Every day we deport more. Just two weeks ago, ICE deported Jose Segovia Benitez, a two-time Iraq war combat

BY JORGE LOWEREE

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BY EMMA WINGER federal court ruled recently that sweeping policies permitting U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) to search personal cell phones, laptops, and other electronic devices without responsible suspicion, are unconstitutional.

The policies that the court rejected authorized CBP and ICE officers to search the contents of electronic devices of people arriving at U.S. borders, including U.S. airports, without reasonable suspicion that those devices might have evidence of illegal activity and without a court order. Immigration officers could randomly search the cell

Supreme Court Heard a Major Case on DACA

Benitez

veteran who suffered a traumatic brain injury, and who, like many, struggles with PTSD and substance abuse. Jose came to the U.S. from El Salvador, as a 3-year-old child, he knows no other

home than the U.S. Now he fears for his life in El Salvador.

These deportations are unconscionable and immoral. They are the result of three forces working together: 1. The punishing and unforgiving 1996 laws that created lifetime bars to naturalization and mandatory deportation; 2. The failure of the U.S. government to naturalize noncitizen service members while they are serving; and 3.Hyper-aggressive immigration enforcement over the past decade. continued on page 3

Stephen Miller’s White Supremacist Views ... page 4

he Supreme Court heard arguments on recently in three cases challenging President Trump’s attempted rescission of the Deferred Action for Childhood Arrivals (DACA) initiative. The Court’s decision could have far-reaching consequences for DACA recipients and the limits of executive authority when it comes to immigration law and policy.

President Obama created the DACA initiative in June 2012 to provide young unauthorized immigrants with protection from deportation and the ability to work lawfully in the United States in two-year renewable increments. All applicants were required to meet specific criteria related to age, education, and criminal history. Government data indicates that approximately 661,000 people are currently enrolled. President Trump terminated the program September 5, 2017.

The Supreme Court focused on one primary question: did the Trump administration provide an adequate explanation for why it ended DACA? Anytime the Executive Branch makes a major policy decision such as ending DACA, it must explain why and ensure that the reasoning is not “arbitrary and capricious.” The Trump administration needed to provide a reason why it was ending an initiative that hundreds of thousands of people had benefited from and relied upon.

In two memos announcing the rescission, administration officials claimed DACA was an unconstitutional exercise of executive authority, and thus “illegal” from the start. Both memos failed to offer any policy justifications for the termination of the program. They instead pointed to a decision by the U.S. District Court in Brownsville, Texas, barring a continued on page 2

IMMIGRATION MATTERS

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Recognizing Immigrant Women’s Needs in Immigration Reform

BY MARY GIOVAGNOLI

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hile debates over reauthorization of the Violence Against Women Act and the Trafficking Victims Protection Act may have reminded the nation that there are “women’s issues” in immigration law, it doesn’t necessarily follow that most people regard immigration reform as women’s issues. Despite the fact that immigrant women make up a growing share of workers, entrepreneurs, single heads of households, and new voters— while remaining primary caregivers in families—the laws we craft to reform our broken immigration system have often been insensitive to the obstacles and challenges immigrant women face in applying for immigration status.

As Kavitha Sreeharsha identified in a 2010 paper for the Immigration Policy Center, there are pitfalls we face in crafting inclusive immigration laws: “…a CIR package must include a path to legalization that values the contributions of immigrant women as part‐time and informal workers. It must recognize that women need independent opportunities to apply for legalization (as opposed to merely deriving it from a spouse or

father). It must account for the fact that many immigrant women—who make significant contributions to the workforce—nonetheless have had less formal access to educational and employment opportunities. CIR must also consider the role that women play in immigrant families and as the predominant beneficiaries in the family immigration system.”

In other words, laws that appear neutral on their face might, in fact, make it more difficult for undocumented women to access a legalization program or for women hoping to immigrate to the U.S. to obtain a visa. And in the meantime, in the absence of such reforms, the existing deportation and removal laws and policies often weigh most heavily on women, who are either left to try to keep their families together while their husbands or partners face deportation charges, or find themselves caught up in the net of Secure Communities and other enforcement activities that most often pull otherwise law-abiding immigrants into removal proceedings through traffic stops and other low-level encounters with police.

Here are two examples that help to illustrate how the legal requirements that appear neutral may make it more difficult for women to access the immigration

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San Jose, CA/USA - April 10, 2006: A Mexican American woman marches in support of equal rights for immigrants during a rally in San Jose, California. Editorial credit: Krista Kennell / Shutterstock.com

system. The legalization proposals in 2006 and 2007, included full-time employment requirements as a condition of either registering for legalization, maintaining that status, or transitioning to lawful permanent resident status. It was often assumed that women and children would apply for “derivative” status—that is, they would ride along on the principal (husband’s) application. While many people challenge the employment provision in general, one of the most significant criticisms against it has been that women who are full-time caregivers or who are only employed part-time would have no independent means to apply for legalization. The assumption that family members can or should ride along on an application isn’t a problem in itself—it is often more efficient and less expensive to process a whole family at once—but it does assume a family dynamic that isn’t always in place.

Similarly, a proposed CIR bill would have drastically cut family-based immigration in favor of a points system that would privilege applicants with higher education and skills. In all likelihood,

such a proposal could have hurt the chances of immigrant women to enter the U.S., as many currently enter under the family category—and may come from countries where their access to education or other opportunities is limited precisely because they are women. Thus, an immigration system based solely on credentials at the time of entry would miss out on the rich contributions of many immigrant women who realize their true potential when they move to the United States.

Fortunately, the concerns from past debates are being raised today thanks to a growing network of immigrant women’s groups, immigration groups, and the broader women’s movement. As diverse communities come together in support of immigration reform, they send a loud and clear message to Congress: fixing the broken immigration system isn’t just about changing laws, but is instead about how America values its people—women and men alike.l

DACA/from page 1

States, like the attempted rescission of DACA. The APA contains an exception, however, for actions considered to be within an agency’s discretion.

The administration argued that its decision falls within this exception and is therefore not reviewable by the courts.

This is a curious position given its exclusive focus on the DAPA case in Texas as its justification for rescinding DACA. The respondents—the parties that initially challenged the DACA rescission— argued that the original memo rescinding the policy contained factual and legal errors, and that the reasoning provided for the decision was insufficient.

Initial reports indicate that a majority of the justices appear ready to allow the administration to move forward with the rescission of the program.

The consequences of simply revoking a program like DACA that people have come to rely on for many years are dire.

The lives of hundreds of thousands of people who participated in the program over the last seven years would be thrown into disarray.

It would then be up to Congress and the president to negotiate a permanent solution allowing DACA recipients to live and work in the United States without the constant threat of deportation. The House passed such a measure in June of this year.l

similar program known as Deferred Action for Parents of Americans (DAPA) as proof that DACA was illegal.

In response to several lawsuits, lower courts across the country issued injunctions against the rescission. This forced the government to continue accepting and adjudicating DACA requests from people who have DACA, or those who participated in the past. These lawsuits then made their way to the Supreme Court.

The Supreme Court focused on the Administrative Procedure Act (APA) when it discussed whether the president’s decision to eliminate DACA is one that can be reviewed by federal courts and, if so, if it was lawful as implemented. The APA sets forth the standards governing the judicial review of decisions by executive branch agencies.

The APA permits a federal court to review whether government action is “arbitrary or capricious,” or otherwise not in accord with the law. It thus provides a check on government decisions that do not have lawful, rational justifications.

This review is particularly important when major policy decisions would significantly impact the lives of hundreds of thousands of people across the United

This article was originally published in 2013 and still has relevance today.

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WELCOME TO AMERICA Deporting Veterans/from page 1 Deported veterans are nearly all former Lawful Permanent Residents (LPRs) (or Green Card holders). Of those we interviewed for our report, half served during periods of war. And most came to the U.S. under the age of 10 — meaning the United States is the only country they know as home.

Changes made to our immigration laws in 1996, were so excessively punitive that certain criminal convictions, even convictions such as writing a bad check or possession for the sale of marijuana, even convictions for which a person may serve no time in jail at all, require deportation and bar naturalization for life.

The '96 laws dramatically expanded the definition of the category of deportable offenses known as "aggravated felonies."

Today, the term encompasses a whole host of nonviolent misdemeanors that are neither aggravated nor felonies.

And the law made deportation mandatory for any LPR with an aggravated felony by eliminating all forms of judicial discretion. Meaning, a single criminal conviction, one mistake, can equal a lifetime of banishment. No exceptions.

It means that when Mario Martinez goes before an immigration judge in March, the judge will not be permitted to consider whether deportation for a domestic violence conviction that occurred more than 10 years ago is a fair outcome. The judge will not be able to consider whether it's a fair outcome for a

“He is a soldier who put his life on the line to defend his country,” his mother said. "But when he returned from the war, he came back with problems."

man who served honorably in the Army for six years, earning the rank of Sergeant; who has lived in the U.S. for 52 years, since he was only 4 years old; who has a successful engineering career, two grown sons, a granddaughter, and an extended family who are all U.S. citizens. The judge will not be able to consider that deportation means forcing him to live the remainder of his life estranged from everything he knows and loves.

Because the law says one mistake and you're out.

Citizen and noncitizen veterans equally struggle with reentry into civilian life following discharge. Substance abuse, mental health issues, and anger can lead to contact with the criminal justice system. As a society, we look to rehabilitative solutions to address the scars of war and trauma that inflict our veterans. But

our immigration policy looks the other way.

Jorge Salcedo was deported for the crime of spitting on a police officer, which the law at the time defined as an aggravated felony. He paid for that crime and served one year in a Connecticut prison. But at the conclusion of his sentence, ICE was at the prison door. ICE arrested him and detained him for 3 ½ years without the right to bail, while it pursued his deportation. And then it deported him. It did not matter that he served eight honorable years in the Army.

It did not matter that deportation denied his daughters their father during their critical years of childhood.

One mistake.

Jorge sits here today because a change in law allowed him to get his Green Card back. He is one of the lucky few — most

deported veterans have no such avenues for return.

The U.S. would not be deporting its veterans had the government kept its promise and made them citizens when they were serving in the military.

But over the years, numerous obstacles have stood in the way of service members naturalizing. None are greater than the obstacles service members face today.

Department of Defense policies intentionally block current service members' ability to obtain citizenship through military service. And USCIS sits on military naturalization applications and simply refuses to move them forward. These actions are unlawful and violate 200 years of Congressional directives.

The repatriated and naturalized veterans in this chamber today — Hector, Jorge, Miguel Perez and Yea Ji Sea, sitting behind me — embody the hope of deported veterans around the world that one day too, they will get a chance to come home. Their hopes lay at the feet of Congress. They did not turn their backs on our country in its time of need; we must not turn our backs on them. l Jennie Pasquarella,is the Director of Immigrants' Rights and Senior Staff Attorney of ACLU Southern California.

Read her written testimony submitted to the U.S. House Committee on the Judiciary Subcommittee on Immigration and Citizenship at www.cawnyc.com

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IMMIGRATION MATTERS

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Stephen Miller’s White Supremacist Views Matter Because They Dictate Trump Administration Policy

BY AMERICA’S VOICES

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riting in Mother Jones, Noah Lanard puts the Stephen Miller, Senior Policy Advisor for Trump, email revelations into an important bigger context: “In a normal administration, the views laid out in Miller’s emails would be disqualifying. In a Trump administration, it makes him essential. In fact, many of the opinions he laid out in the emails have become part of the policies Miller has helped enact in the White House, from cutting refugee admissions to record lows to separating families at the border”.

Just look at some of the immigrationrelated developments and news from the past few days. They are just the most recent instances of an unrelenting Trump administration’s drive to keep out and kick out immigrants and refugees.

The Washington Post reports, “A Trump administration strategy led to the child migrant backup crisis at the border”: “When thousands of migrant children ended up stranded in U.S. Border Patrol stations last spring, President Trump’s

Miller

administration characterized the crisis as a spontaneous result of the record crush of migrants overwhelming the U.S. immigration system. But the backup also was a result of policy decisions that officials knew would ensnare unaccompanied minors in bureaucratic tangles and leave them in squalid conditions, according to dozens of interviews and internal documents viewed by The Washington Post.”

As The Associated Press reports in a story entitled, “U.S. held record number of migrant children in custody in 2019” – “This month, new government data

shows…an unprecedented 69,550 migrant children held in U.S. government custody over the past year, enough infants, toddlers, kids and teens to overflow the typical NFL stadium. That’s more children detained away from their parents than any other country, according to United Nations researchers. And it’s happening even though the U.S. government has acknowledged that being held in detention can be traumatic for children, putting them at risk of long-term physical and emotional damage.”

The Wall Street Journal reports that the administration plans to increase the fee to apply for DACA, asylum and naturalization – an overt effort to make legal immigration channels less accessible.

Fees proposed include an increase of $275 (a 65% increase) for DACA recipients to renew their two-year legal permits; a new $50 fee to apply for asylum; and an increase to $1,170 (an 83% increase) for immigrants seeking citizenship.

The administration has a long and disgusting record of laying waste to America’s tradition of welcome. l

Searches /from page 1 can conduct “routine” searches at the border without a warrant and without any suspicion at all.

But searching someone’s cell phone or laptop is not a “routine” search, the federal court concluded. As the court explained, even a basic search “may reveal a wealth of personal information,” including medical and employment history, family relationships, and personal contacts.

For example, CBP officers asked one plaintiff in the case—a journalist—about photographs, emails, and contacts found on his phone. CBP returned a phone to another plaintiff having apparently removed a video of her daughter’s graduation. CBP officers questioned a third plaintiff—a graduate student and founder of a media website—about one of her blog posts while searching her phone and laptop.

These invasive searches are widespread. Available data shows that in fiscal year 2017 alone, CBP conducted over 30,000 searches of electronic devices.

Under the federal court’s decision, in order to comply with the Fourth Amendment, CBP and ICE must have reasonable suspicion that an electronic device contains illegal material before it can be searched. This means immigration officials cannot engage in fishing expeditions at the expense of the privacy of all international travelers.l

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