How Chicago Could Beat Trump in Court

Originally published in VICE on August 9, 2017.
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For months, Donald Trump has been fueling panic about Chicago’s crime rate, repeatedly threatening to use his power as president to “send in” federal troops to deal with the scourge of homicides plaguing the city.

On Monday, Chicago made its own power move.

The city filed a federal lawsuit against the Trump administration in an effort to stop the Department of Justice, led by Trump’s frenemy Jeff Sessions, from punishing Chicago for its status as a so-called “sanctuary city.” In defending the lawsuit on CNN, Mayor Rahm Emanuel stressed that forcing his city to choose between its values and the police department’s community policing philosophy is “a false choice” that “undermines our actual safety agenda.” Going after Trump and Sessions over policing is also likely a welcome change for Emanuel, who has drawn harsh fire for Chicago’s police brutality and persistently high violent crime.

The lawsuit centers on a federal grant, the Edward Byrne Memorial Justice Assistance Grant—or Bryne JAG—used by state, city and tribal governments to support law enforcement. In July, Sessions—a longtime foe of undocumented people—took his first real step to crack down on sanctuary cities when he announced that he would be imposing new conditions on localities that want to receive cash from the Bryne JAG.

Chicago’s lawsuit alleges that these new conditions—which empower the feds to interrogate arrestees at local jail facilities, and require local law enforcement officials to detain individuals longer than justified by probable cause—are “unauthorized and unconstitutional.” Meanwhile, the city received $2.3 million from the Bryne JAG last year.

While Sessions has already responded to Chicago’s legal challenge by saying that the Windy City “has chosen deliberately and intentionally to adopt a policy that obstructs this country’s lawful immigration system,” a number of legal experts have argued the lawsuit’s central claims actually rest on sturdy shoulders. George Mason Law School professor Ilya Somin told me that while it’s not unusual to see a presidential administration attempt to finagle grant conditions, he’s “not aware of a case as blatant as this one where the executive branch just seems to make up conditions on its own, and doesn’t even have a minimally plausible argument that they were included in the bill Congress passed.”

Likewise, Phil Torrey, an attorney focused on the intersection of criminal and immigration law at the Harvard Immigration and Refugee Clinical Program, thinks Chicago’s suit has some real muscle. Here’s what he had to say about the latest major lawsuit against the Trump administration, and how this saga might play out from here.

VICE: What do you make of Chicago’s new lawsuit? Is it viable? 

Phil Torrey:
 I think Chicago feels like they’ve been backed into a corner as they anticipate potentially losing JAG funding. They make a number of claims—on statutory and constitutional grounds—and I’d say both have a good deal of merit.

What are some of the stronger claims?

Well there are a few. One is Chicago’s spending clause claim: Basically what the city is saying is that the executive agency responsible for administering these federal grants cannot impose additional restrictions on those funds without congressional approval. And in this instance, Congress has not given any authority to the DOJ to impose the kinds of restrictions Sessions is advocating for. I think that’s a pretty clear, straightforward argument.

I also think the city of Chicago and other municipalities are currently in compliance with federal law, specifically Section 1373 [a federal statute that bars local governments from restricting the sharing of immigration status information with ICE agents]. If you look closely at their “sanctuary” policies, you’ll see they don’t have rules that restrict the sharing of this information. I think the DOJ is incorrectly construing those policies to claim cities are running afoul of the law.

But if Chicago is arguing the DOJ needs congressional approval to condition federal funds, couldn’t the GOP-controlled Congress just go ahead and do that, and effectively render the lawsuit moot?

Yes, Congress could attempt to pass some legislation that would further restrict JAG funding, but that hasn’t been done yet. There could be other constitutional challenges to that kind of statute, but as it stands, that specific enabling language to allow the DOJ to pass new restrictions has not been approved.

One complicating factor is that the Bryne JAG is related to public safety, and Congress can’t impose its will on municipalities in a way that would force them to implement new public safety measures. Constitutionally, public safety is completely within the purview of a city or county or state, and Congress could arguably be overstepping its authority if it passes legislation that forces these localities to do something that they believe harms their public safety.

Do you think other local governments will follow Chicago’s lead, as some reports suggest they are considering?

You’ve got city, county, and state law enforcement officials all serving different roles within the realm of public safety, and some of these new conditions placed on the Bryne JAG funding affect those players in different ways. You could definitely imagine multiple levels of local government filing claims—either in conjunction with Chicago or separately against the DOJ.

Can’t the administration argue—with some merit—that the federal government has broad discretion over immigration policy?

This is actually being framed more as a public safety issue than an immigration enforcement issue. And when you’re operating within the realm of public safety, then states and localities have full constitutional authority to enact and enforce policies that they see fit. Municipalities are saying, “Wait a minute—public safety is our realm to operate in. You can go ahead and enforce immigration laws. Do what you need to do, but don’t come in here and tell us how to do public safety.”

As this case winds its through the courts, what should we be looking out for next?

Hundreds of municipalities have decided that the best way to police their communities is by separating their public safety enforcement from immigration enforcement. If we move to entangle them, it may have a chilling effect that could really harm community systems.

I think this case illustrates that the administration is putting a target on states, counties, and municipalities that have these types of [community policing] policies—considering them somehow against federal law. Essentially what the DOJ is doing is saying, “We’re going to substitute your own views on what’s best for your communities with our views.”

You effectively have a federal government attempting to force municipalities to change their policies, which is actually contrary to how you’d expect a traditional Republican, conservative government to act. Normally you’d expect to see conservatives favoring local autonomy and disfavoring federal overreach. That’s not what’s happening.

This interview has been lightly edited and condensed for clarity.

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How Schools Are Trying to Make Undocumented Kids and Their Parents Feel Safe

Originally published in VICE on March 22, 2017.
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On Tuesday, New York City mayor Bill de Blasio announced that America’s largest public school system will prohibit federal immigration agents from entering their buildings without a warrant signed by a judge. While there have been no reports of Immigration and Customs Enforcement (ICE) agents rounding up kids at school, de Blasio was echoing similar shows of support for immigrant children made over the past several months by mayors and school officials across the United States.

In November, Pew Research Center reported that about 3.9 million kindergarten through 12th grade students in US public and private schools were children of undocumented immigrants, and 725,000 K–12 students were undocumented themselves. Even before President Trump took office, the feds were known to apprehend some of these students and their parents on their way to school. And now, under a White House that has already begun to dramatically reshape immigration policy, undocumented people and their advocates say the simple act of taking a kid to school has become a terrifying ordeal.

“Parents are fearful of dropping their kids off at school, and kids are concerned while they are at school that they’ll come home and their parents might not be there,” said Laura Vazquez, the program manager with the National Council of La Raza’s Immigration Initiatives.

In 2011, then president Obama’s Department of Homeland Security issued a memo instructing ICE agents to generally avoid enforcing federal immigration policy in so-called sensitive locations such as schools and churches. While President Trump has abandoned many of Obama’s policies restricting immigration enforcement, he has, so far, kept the rule about schools and churches in place. But that’s been little consolation for the millions of families who have witnessed immigration raids in their communities, as well as the political empowerment of conservatives who take a hardline on deportation. And given Trump’s repeated condemnations of so-called sanctuary cities, how long the president will be willing to tolerate the quasi-sanctuary status of schools remains a serious question.

Schools have been proactive in hopes of alleviating the anxiety of immigrant children, emphasizing that they remain open to everyone. For example, Chicago Public Schools, the nation’s third-largest school district, released a memo in December affirming that it would remain a “safe and welcoming” environment for all students and staff. And in February, CPS announced guidelines for principals should agents arrive on school grounds.

Even in districts that aren’t taking pains to make immigrants feel safe, US law already provides a fair number of protections for undocumented students. In addition to the DHS memo still on the books, in 1982 the US Supreme Court ruled in Plyer v. Doe that no public school could deny children access to an education based on their immigration status. Subsequent court decisions reaffirmed this principle, barring schools from enacting policies that could significantly interfere with student enrollment. For example, in 2012, a federal appeals court unanimously struck down an Alabama law requiring public schools to check the immigration and citizenship status of new students.

The Family Educational Rights and Privacy Act, a federal law preventing schools from sharing confidential student information, also serves as a bulwark for undocumented students. While schools can share confidential information under limited circumstances, sharing with ICE agents is not considered such an exception. Title VI of the Civil Rights Act also creates obligations for schools to prevent discrimination based on race or immigration status. And the Fourth Amendment, which protects against unreasonable search and seizure, requires ICE agents to obtain judicial warrants to enter schools, not just the administrative warrants they generally use to make public arrests.

In light of the precedents favoring their cause, the National Immigration Law Center has been pushing school districts nationwide to adopt “Campus Safe Zone” policies, which mostly affirm existing policies while expressing strong support for undocumented students. (A Department of Education spokesperson told VICE that the agency has not released any statements or new guidance for schools concerning the president’s immigration policies.)

For his part, Mark Krikorian, the executive director of the Center for Immigration Studies, a conservative think tank, told me that school leaders speaking up about undocumented students “are intentionally lying in order to gin up panic and opposition,” adding that “it’s a ridiculous idea” that an ICE agent would ever go into a school.

But even if schools may be safe spaces right now, getting there remains a real challenge—immigration experts say there are few legal options available to protect undocumented students and parents who are en route to “sensitive locations” like school or church. For example, in Los Angeles in late February, ICE agents arrested Rómulo Avelica-González, an undocumented Mexican immigrant, right after he dropped off one of his daughters at school. Avelica-González, a father of four who has lived in the US for nearly a quarter century, was apprehended a block away from the school. The ICE agents were in unmarked cars and wore jackets that said “police.”

Such arrests don’t technically violate federal policy, even if they come right up to the line. And it’s important to bear in mind that raids targeting people en route to school were reported last year, after the Obama administration ordered agents to arrest, detain, and deport undocumented immigrants from Central America. Most of these arrests involved entering homes and picking people up off the streets, but some students were also detained by immigration officials on their way to school. Public school teachers at the time said the ramped-up enforcement  had a chilling effect on other students, leading to increased absences and general classroom stress.

David Hausman, a Skadden Fellow at the ACLU Immigrants’ Rights Project, says it’s more important than ever to inform students that protections remain in place for them—that even if getting there is a heavy lift, some places really are safe. “Although we’ve seen disturbing incidents near schools, we have not at least yet seen any enforcement actions within schools themselves,” he said.

The White House did not respond to a request for comment on possible changes to ICE protocol Wednesday afternoon, but that agency did confirm the 2011 policy on avoiding sensitive locations remains active. Meanwhile, conservatives like Krikorian insist it’s “not a legitimate concern” for schools to talk to parents about possibly facing arrest when picking up their children.

“You don’t get a free pass to break the law just because you have children,” he said.

North Carolina Educators Fight Deportations of Central American Students

Originally published in The American Prospect on March 23, 2015.
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Wildin David Guillen Acosta, a Durham, North Carolina, high school senior, was set to graduate from Riverside High School in June. Instead, he is being held at a federal detention center in Georgia. In late January, U.S. Immigration and Enforcement agents (ICE) apprehended the 19-year-old student as he was on his way to school. While languishing in the detention center, Acosta asked his teachers to send along his homework, so that if he gets released, he would still be on track for commencement. In late February, his teachers mailed him his assignments, but detention center officials refused to accept the package.

In January, the Obama administration authorized a series of raids to arrest, detain, and deport undocumented immigrants who came to the U.S. from El Salvador, Honduras, and Guatemala over the past two years. About 15,500 Central American mothers and children have received deportation orders since July 2014, and ICE is now ramping up its enforcement of those orders. More than 330 young people have been arrested nationwide so far. Although students do not comprise all the youths being targeted, local educators have been galvanized by the arrests. Teachers say the raids have had a chilling effect on other students, too.

The ICE raids, which involve barging into homes and picking up individuals off the streets, are reminiscent of Bush administration–era immigration enforcement tactics. While immigration officials avoid making arrests in “sensitive locations”such as churches and schools, immigration advocates say this policy hasn’t stopped ICE agents from detaining undocumented students on their way to school.

ICE agents picked up Yefri Sorto, a 19-year-old Charlotte high school student on his way to a bus stop in late January. Sorto came to the United States from El Salvador in 2014 as an unaccompanied minor. He says he fled his country because he feared gang violence and was finally reunited with his parents, who had been living in the U.S. for more than a decade.

“These raids are impacting not just the individuals we know of who have been picked up; there is wide and deep fear across the community,” says Allison Swaim, a Durham high school teacher.“Kids are not coming to school because they’re afraid, kids are dropping out because they don’t want to be picked up, or maybe they still have a legal process pending, or they’re trying to file for asylum—everyone has their own story.”

The majority of Central Americans who crossed the U.S. border were apprehended, or turned themselves in, hoping to apply for some type of asylum. Immigration advocates say these individuals should be treated as refugees, not as criminals, given the extreme violence found in their home countries. A Guardian investigation found that since January 2014, 83 people who were deported to Honduras, Guatemala, and El Salvador were murdered, some just a few days after they returned.

Swaim has been working to organize teachers statewide around what she calls a humanitarian crisis across the South. In Atlanta, ICE agents pulled over 19-year-old Kimberly Pineda Chavez, while she was driving to school. Kimberly arrived in Georgia from Honduras in 2014 with her mother and sister after receiving a series of threats from local police.

Swaim hopes that teachers across the region will collect data and anecdotes about how students are being affected by raids in their communities. Durham teachers held a conference call with U.S. Department of Education officials to express their concerns. “We’re asking federal officials, including Education Secretary John King, to get involved because part of their mission is to provide an equal education for all students, and that includes immigrant students,” Swaim says. “These raids are directly in contradiction with the mission of the Department of Education.”

Rebecca Costa, a Charlotte ESL teacher, says that educators in the Charlotte-Mecklenburg district are also trying to duplicate the Durham organizing efforts in their community. Two of Costa’s students stopped coming to school after Yefri Sorto was arrested, and have since gone into hiding. “It all felt very isolating, but now we realize this is happening all over North Carolina and we have to reach out and unite,” she says.

Obama immigration officials stress that ICE is not targeting anyone under 18. But many high school upperclassmen who are completing their secondary education are 18 or older. “My two kids that have gone into hiding were 18 and 19, both juniors,” says Costa.

Mayra Arteaga, a 20-year-old living in Charlotte, has been involved in immigration advocacy since she was in middle school. Mayra has been raising awareness about the deportation raids by rallying students, testifying at school board meetings, and helping to organize protests, like a recent Charlotte march.

“I think once teachers started noticing what was going on, the ball really started rolling,” Arteaga says, noting that these raids have mobilized a much more diverse group of people than immigration advocates typically see at their events.

Advocates worry that the undocumented immigrants are not receiving fair legal treatment, and say that deportation orders have frightened many. Tin Than Nguyen, a Charlotte immigration lawyer, has been working to try and help undocumented families in the city understand their legal rights. “The recent rounds of raids have truly sent shockwaves through the community and everyone is shuddering in fear,” he says.

According to the U.S. Justice Department, of the roughly 10,000 deportation orders given to unaccompanied minors since July 2014, roughly 87 percent were issued in absentia; advocates say many immigrants never received sufficient notice of their scheduled court hearings.

Meanwhile, North Carolina activists have appealed to federal lawmakers to help stop the raids. Representative G.K. Butterfield, a North Carolina Democrat who represents Durham, has been pressuring ICE to delay Wildin’s deportation, so that he can apply for asylum.

“Wildin Acosta and other young people like him fled extreme violence and mayhem in Central America in search of refuge and a better life in the United States,” said Butterfield in a statement. “I believe that U.S. Immigration and Customs Enforcement’s (ICE) limited resources would be better utilized focusing on dangerous criminals who pose a threat to our communities rather than high school students and teenagers trying to make better lives for themselves.”

“[Wildin] is being labeled as some kind of internal threat to the security of the United States,” Bryan Proffitt, president of the Durham Association of Educators told WNCN, a CBS affiliate. “He’s a kid sitting in a detention cell hoping to get his homework, so that he can graduate on time.”

 

The Forgotten Side of the Immigration Debate

Originally published in the Baltimore Sun on March 8th, 2013.
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Recently, I returned home from a three-week stay in Guanajuato, Mexico. I lived with a gracious Mexican family, took Spanish classes and had the chance to immerse myself in Mexican culture. Mexican society was beautiful and vibrant — full of ideas, art and religion. Needless to say, the crude stereotypes of drug cartels and kidnappings were hardly relevant or applicable to my experience, or the experience of anyone I met.

As my trip wound down, I said to my host parents, “Por favor, vengan a visitar a mi familia en los Estados Unidos!” I wanted them to come see my house and meet my family in Pennsylvania. They smiled sadly and told me that would not be likely, because of the difficult hurdles and high costs of obtaining tourist visas.

They are right, of course. While it is not impossible, it is much harder for Mexicans than for, say, Canadians and Europeans to travel to the United States — because Mexico is not part of the U.S. Visa Waiver Program. This program allows individuals to travel without a visa to the United States for stays of 90 days or less.

Indeed, I also did not need to apply for a visa to travel to Mexico for my visit. But for most countries in the world, and for not-unfounded reasons, potential visitors need to go through various steps in an often arduous process. They must do an interview at a consulate office abroad; they need to file paperwork that shows they have significant ties that keep them at home; and they need to show proof that they are not likely to become a burden on the public system if they travel to the U.S. In essence, if you are not part of the Visa Waiver Program, the burden of proof is on you.

“It’s kind of a crap shoot [for Mexicans], it takes a long time, and it’s expensive,” said Eleanor Sohnen, a policy analyst at the Migration Policy Institute. Whether or not they are ultimately granted a visa, prospective visitors must still pay the nonrefundable $160 application fee, or about 2,037 pesos. “They are often declared ineligible, so they may be dissuaded from even trying at all,” Ms. Sohnen said.

Just how difficult it is for applicants from Mexico (or any other country) to visit the United States is challenging to address, because the State Department does not publish the number of applications it receives for non-immigrant visas, only the number of visas ultimately issued. Thus there is no clear number available to the public of how many applicants were denied.

Back home in the U.S., I now find “comprehensive immigration reform” splashed across the front pages of the major newspapers. They are full of discussions about tighter border controls, crackdowns on employers, paths to citizenship, bipartisan consensus, the DREAM Act, the Latino vote and changing demographics. I read all of it closely to try and understand exactly if and how my host family would be affected by these proposed changes.

It seems to me that the conversation is leaving out those individuals from Mexico who are not looking to come to the United States to work, to study or to live. To the extent that they are included in the national discussion, it’s merely to point out symptoms of a problem we need to address with those who overstay their visas. With all the talk of enhanced security on the borders, I can’t help but remember how easily I was able to cross their border to explore and to learn. I remember how American music frequently blasts on their radios and how my host mom’s favorite television shows were “Bones” and “NCIS” (translated into Spanish). American culture is alive and present in Mexico, but the vast majority of Mexicans that could theoretically visit America will likely never have that chance.

I would think that with our country’s economic woes, there must be something we can do to address our fundamental immigration problems while still encouraging tourism from Mexican citizens. The system as it stands now discourages it.

To be sure, many of the 11 million illegal immigrants in this country entered legally and then overstayed their visas. I recognize this is an enormous and expensive problem. But I find it hard to believe that the only way we can sufficiently limit the number of undocumented workers in the United States is by making it extremely hard for most Mexicans to visit. We certainly have the minds and ingenuity to create a system that ensures those who travel on tourist visas return to their host country, and that eases the process of applying for and obtaining tourist visas.

I am not suggesting Mexico be added now to the Visa Waiver Program but that we do look more closely at the hurdles to travel that many well-intentioned Mexicans face. Include them in the national immigration reform discussion. The increased tourism would economically benefit our country, as would affording others the same freedoms to travel that we so often take for granted.

I’d like to one day welcome into my home my host parents — two hard-working individuals who have no desire to move to America.