Monday, April 18, 2016

A Cry for Humanity in the Wilderness of GOP Electioneering: Immigration Law Edition

Cruz & Trump at Tea Party Rally Sept. 9, 2015
Nicholas Kamm/ Getty images

What Newt Gingrich Believed

During the 2012 election for President, Newt Gingrich counseled that our immigration policy must be characterized by humane enforcement of the law:

I do not believe that the people of the United States are going to take people who have been here a quarter-century, who have children and grandchildren . . . separate them from their families and expel them . . . . [L]et's be humane in enforcing the law without giving them citizenship but by finding a way to create legality so that they are not separated from their families.
Gingrich didn't last long in the GOP field that year. Yet after Obama soundly defeated Romney in 2012, GOP strategists decided they needed to show some humanity on immigration issues in order to compete for Latino votes if they wanted to regain the White House. So in 2013 four GOP Senators (John McCain, Marco Rubio, Lindsay Graham, and Jeff Flake) joined four Democrats to craft a comprehensive immigration reform bill with a path towards citizenship for undocumented workers currently in the country.

But the GOP is not yet able to leave behind its anti-immigration crusade. The Development, Relief, and Education for Alien Minors Act ("DREAM Act") first introduced with bipartisan support in 2001, and designed to show some humanity to children living here, foundered on the rocks of GOP partisanship. And in the current election cycle Jeb Bush, Lindsay Graham, Marco Rubio and all discussion of comprehensive immigration reform have been muscled aside by Donald Trump and Ted Cruz trying to outdo each other about who would be more inhumane towards undocumented workers living among us.

When Bill O'Reilly of Fox News asked Ted Cruz whether we should "round up all 12 million illegal aliens here?"  Cruz answered: “Yes, we should deport them. We should build a wall, we should triple the Border Patrol. Federal law requires that anyone here illegally that’s apprehended should be deported.”

Forget Gingrich and his call for humane treatment in 2012: Cruz and his electioneering rhetoric points to carrying the decades long GOP crusade against undocumented immigrants from Latin America to its cruel, inhumane logical extreme.  A president Cruz, said Cruz, would instruct federal agents to actively seek out illegals to deport them--on a massive scale. Two holocausts in scale.

When our country is ready to follow a leader like Ted Cruz or Donald Trump down such a path, we are in trouble; it will  lead to tremendous mistakes that we would live to regret. Think of the Chinese exclusion Act; think of the Japanese internment in World War II; think of our immigration policy in light of the impending Holocaust in Europe during World War II.

Inhumanity in our immigration policy is not a new phenomenon.

Yes, We Do Take People who Have been Here a Quarter-Century, Who have Children... and Separate them from their Families and Expel Them.

Little cruelties happen on a daily basis. Take the story of Oscar Martinez and his family written up by professor Bill Ong Hing in The Scholar, St. Mary's Law Review on Race and Social Justice, Vol. 15:437  (2013)  It's the story of friends of mine. [The names in the article are fictional]

Oscar Martinez and his father-in-law crossed into the United States in 1985 looking for an opportunity to work. They did so by walking across what was an open border, past border agents who (as a matter of policy) turned a blind eye at certain times of the year when California was in need of workers. Martinez soon found work in a potato packing plant in Oakland. He returned back and forth to Mexico a couple of times. In 1987 he was able to bring his wife to live with him. He did not return to Mexico again for the next 20 years.

Oscar soon found better work in the kitchen of a Holiday Inn, working the graveyard shift. For 22 years he worked at the hotel. He was a responsible and diligent worker.

Oscar's first wife tragically became ill with heart and lung disease. She died in January 1995.

In January 1994 the GOP proposed legislation to establish a citizenship screening process in California to deny non-emergency health care, public education, and other benefits of the state to all illegal aliens. The legislation was placed on the ballot that Fall as a referendum measure, Proposition 187.  California's Republican governor Pete Wilson strongly campaigned for the initiative, which passed with 78% of Republican voters in support. [Independents were 62%in favor; Democrats were 64% opposed] [The courts immediately granted a temporary injunction and later overturned the initiative as unconstitutional]

In the meantime Oscar Martinez remarried in 1996. His new wife had lost her husband in an automobile accident. She had two young children whom Oscar adopted. She also was undocumented.

The Martinez's were a model immigrant family. Hard working, responsible, respected in their community. They were active in their Church, the parents supported their children to succeed in education, in soccer, in music. The family was able to buy a house in East Oakland. They had a third child together.

In June 2007 Republicans in Congress killed President George W. Bush's effort at comprehensive immigration reform. "The president was unable to overcome fierce opposition from fellow Republicans who said it was an amnesty that rewarded illegal immigrants," said Reuters News Service.

On August 29, 2007, out of the blue, after 22 years on the job, the U.S. Department of Customs and Immigration Enforcement("ICE") arrested Oscar Martinez at his work and initiated deportation proceedings.

A Tale of Prosecutorial Discretion

The family, community, and friends of Oscar Martinez rallied to his side. Oscar readily admitted that he was here illegally. However, the length of his stay in the U.S., children who are U.S. citizens, a clean record, and an exemplary work history made him potentially eligible for cancellation of removal and the grant of lawful resident status.  

In order for removal proceedings to be cancelled, the statute requires that the applicant have (1) ten years of continuous physical presence in the United States; (2) good moral character; (3) no prior convictions; and (4) establishes that removal would result in "exceptional and extremely unusual hardship" to the alien's spouse, parent, or child who is a U.S. citizen or legal permanent resident." 8 USC 1229(b)(1) (2006). 

In 2008 Oscar's lawyers convinced an immigration law judge that he merited cancellation of his removal proceeding. The family was elated. Not only did this halt immediate deportation, but it opened the door for Oscar to potentially obtain a driver's license and permanent residency status. Potentially this opened up a path for his wife to legal status as well. 

Humane enforcement of our immigration law would dictate we end there. This is a model family. Oscar Martinez is the type of person we want here. He is not a law breaker. He is diligent and hard working. The hearing established all of these facts. 

But we didn't end there. The government decided to appeal the case to the Board of Immigration Appeals. Here is how Bill Hing puts it in his article: "Ronald LeFevre, the ICE Chief Counsel at the time, made the decision to file the appeal; LeFevre had a reputation among local immigration attorneys as being harsh, not happy with any government "loss," and willing to file unreasonable appeals on even the most sympathetic cases."

Hing entered the case at a later stage, but it's clear he feels the humane thing to do was for the government to leave this family alone, to let them continue making their valuable contributions to our society.  If we were humane in our enforcement of the law, prosecutors would have honored the trial judge's finding: it offered a way to create legality so that Oscar would not be separated from his family.

"Exceptional and Extremely Unusual Hardship"

The trial judge in entering her order of cancellation of removal was swayed by the equities of Oscar's case. The Board of Immigration Appeals found that, the equities notwithstanding, the facts were not sufficient to meet the "exceptional and extremely unusual hardship" standard of the statute. Based on prior BIA decisions, this may well be correct. 

The Alien Registration Act of 1940 authorized the Attorney General to suspend deportations of certain aliens depending on enumerated equities. The categories were broadened in 1948. It enabled prosecutors and judges to administer the laws humanely. But in 1996 Republicans in Congress moved to increase the threshold requirement for a suspension of deportation proceedings to the "exceptional and extremely unusual hardship" (on those left behind) standard. 

Professor Hing concludes as follows: 
Oscar Martinez was forced to leave the country after living in the United States in undocumented status for twenty-five years. He had two U.S. citizen children: one age twenty-one, the other thirteen, and a loving wife. He had no criminal history. He held two jobs. He made sure his children got to school on time. He made sure they did their homework. He drove them to soccer practice. He was active in the PTA and at church. He was a good friend and neighbor. He was an exemplary member of the community. He should not have been deported. 
Not if we're being humane.

After Oscar was deported the family was unable to make the loan payments on their house. They lost their house. The family was put under tremendous stress. They have coped....but we (as a society) are being cruel and inhumane.

The President's Attempts to be More Humane: United States v. Texas

As Hing noted in his article, ICE has been carrying out record breaking deportations under the Obama administration. In the meantime Congress has done nothing towards providing any legislative relief. In the absence of any Congressional action, on June 15, 2012 President Obama issued a memorandum that announced he would exercise prosecutorial discretion to defer taking action on deporting people who would have been covered by the DREAM act. In 2014 he expanded this to parents of DREAMERs--people like Oscar Martinez. 

But so far this has not amounted to much. Republicans have sued. A Judge in Texas issued an injunction to the administration and the 5th Circuit upheld it. The state of Texas and other states led by Republican governors have sued Obama arguing that by deferring to act on entire classes of cases the President is, in effect legislating. 

The GOP is doing its level best to make sure we continue to enforce the law by taking people who have been here a quarter-century, who have children and grandchildren . . . separate them from their families and expel them.

The case challenging President Obama's deferments policy, United States v. Texas, is being argued at the Supreme Court this morning (4/18/16). [There is a big standing argument and the court may not get to the merits]

The current GOP lead argument is described here by John Eastman. He suggests President Obama is a usurper of power and he calls executive attorneys "henchmen" for daring to support an exercise of discretion to be more humane. 

Marty Lederman has an excellent rundown of the arguments HERE. You can find the coverage on SCOTUS Blog HERE

Follow me on Twitter @RolandNikles

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