Friday, October 28, 2011

Bush Speechwriter Michael Gerson Challenges Romney and Perry on Their Anti-Immigrant Rhetoric | America’s Voice | America's Voice

Bush Speechwriter Michael Gerson Challenges Romney and Perry on Their Anti-Immigrant Rhetoric | America’s Voice | America's Voice

nother prominent Republican is speaking out against the vicious anti-immigrant rhetoric occurring in the GOP presidential contest. In his latest column at the Washington Post, Michael Gerson, who served as chief speechwriter for President George W. Bush, challenges the tactics of Mitt Romney and Rick Perry, both of whom have been supportive of immigration reform in the past:

What is it about the immigration issue that brings out the worst in politicians?

Neither Mitt Romney nor Rick Perry has a history of being an immigration hard-liner.Romney supported George W. Bush’s attempt at comprehensive immigration reform in 2005, which included a (difficult) path to citizenship for undocumented immigrants. When I attended a dinner with Perry during his 2010 campaign for reelection as Texas governor, he was particularly passionate about the need for Republican outreach to Hispanics.

Yet Romney has attacked Perry for allowing educational benefits in Texas for the children of undocumented immigrants — calling this policy “a magnet to draw illegals into the state.” Perry has responded that Romney’s Massachusetts health-care reform permitted the medical treatment of undocumented immigrants, which a Perry campaign spokesman calls an “illegal immigration magnet.” In this exchange, both campaigns have managed — extending the metaphor — to be repellent.

Repellent, indeed.

Gerson also understands the political implications of the ugliness, even if Romney, Perry and their fellow candidates don't:

Republicans have a direct interest in avoiding ugliness. Hispanic political influence is not only increasing but concentrated in competitive states — a key to electoral success in states such as Nevada, Colorado and Arizona. The recent past offers encouragement to the GOP. In the 2004 election, Bush won more than 40 percent of the Hispanic vote. And President Obama has left a political opening. Hispanic unemployment exceeds 11 percent, and the administration has consistently discovered legislative priorities higher than immigration reform. On issues of Hispanic concern, Obama’s lip service has been deafening.

To gain a respectable level of Hispanic support, Republicans don’t need to play a sophisticated game of ethnic politics. They need to offer the realistic hope of job creation and economic mobility. And one more thing. They need to stop targeting the sick and aspiring.

They sure need to stop the that targeting, but it doesn't look like they will anytime soon.

Argument preview: A new Bivens remedy? : SCOTUSblog

Argument preview: A new Bivens remedy? : SCOTUSblog

Lyle Denniston Reporter

Posted Thu, October 27th, 2011 6:11 am

Argument preview: A new Bivens remedy?

At 11 a.m. next Tuesday, the Supreme Court will hold one hour of oral argument on a plea to create a new constitutional remedy against private companies who work for a federal government agency. The case is Minneci, et al., v. Pollard (docket 10-1104). Arguing for five individuals who served as private company employees at a federal prison in California will be Jonathan A. Franklin of the Washington office of the law firm of Fulbright & Jaworski, who will have 20 minutes. Representing the federal government as amicus in support of those employees, with ten minutes of time, will be Pratik A. Shah, an assistant to the U.S. Solicitor General. Arguing for the prisoner who sued will be John F. Preis, a law professor at the University of Richmond in Richmond, Va.

Background

An old civil rights law, passed by Congress in 1871 and sometimes known as the “Ku Klux Klan Act,” provides a very wide-ranging option for individuals to sue for money damages if their constitutional rights have been violated — but that law’s expansive Section 1983 does not apply if the violator works for the federal government. Congress passed that Act to deal with wrongdoing by state and local government officials. Congress, of course, has the power to create a similar damages remedy for constitutional violations by federal officials, but it has not done so. The Supreme Court did it, on its own, almost exactly 100 years after passage of the Klan Act. It did not matter, the Court majority said then, that Congress had not provided such a right to sue. Now, the current Court is set to consider expanding that theory of constitutional liability.

In what was seen at the time as a historic and potentially far-reaching ruling on constitutional law, the Supreme Court in June 1971 decided to create a damages remedy against federal officers who violated someone’s right of privacy under the Fourth Amendment. That was the 6-3 decision in Bivens v. Six Unknown Federal Narcotics Agents; it involved the forced entry into an apartment in New York City and other misconduct by federal drug officers, who had no warrant. One of the dissenting Justices at the time, Harry A.Blackmun, protested that “the judicial legislation, which the Court by its opinion today concededly is effectuating, opens the door for another avalanche of federal cases.”

Justice Blackmun, in that instance, was not a good prophet. Since the original Bivens decision, the Court has been very sparing in the kinds of claims it will allow under the theory of that precedent. In fact, there are only three: the Fourth Amendment violation at issue in Bivens itself, a sexual harassment claim against a member of Congress by one of his secretaries (Davis v. Passman, in 1979), and a claim that a prison inmate died because of negligence in providing medical care by officials (Carlson v. Green, in 1980). The last of those rulings, of course, came 31 years ago, and, after that, the Court regularly has turned down requests to recognize any other claim. In one such rejection, in 2001, in the case of Correction Services Corp. v. Malesko, the Court ruled by a 5-4 vote that private prison corporations cannot be sued under Bivens.

At issue in the new case before the Court — Minneci, et al., v. Pollard (10-1104) — is whether a damages lawsuit may be pursued against the employees of a private company working for the federal government — one step removed from the normal concept under the Bivens precedent creating liability for a federal officer, as such. That sweeping right to sue was established by the Ninth Circuit Court, in a decision that conflicts with rulings of two and perhaps three other federal appeals courts.

The case began in April 2007, at a federal prison in Taft, Calif., operated under contract by a private company, Wackenhut Corrections Corp. (now part of The Geo Group). An inmate, Richard Lee Pollard, was working at the time in the prison’s butcher shop. (Pollard was at Taft serving part of his 20-year sentence for drug trafficking and firearms crimes. He has become known as a “frequent filer” – a prison inmate who regularly sues over grievances; Pollard has filed at least ten lawsuits.)

A cart had been left in the hallway outside the kitchen where Pollard worked, and he tripped over it. He fell, and ultimately was found to have broken both of his elbows. In his lawsuit, he claimed that prison employees made him use his arms in very painful ways, refused initially to provide a splint for his injuries even though a doctor had suggested one, and put him to work at prison tasks before his injuries had healed. His lawsuit, a Bivens claim for damages, contended that he had suffered four violations of his Eighth Amendment rights not to be cruelly punished, over a period of several months. Of the five Wackenhut employees who remain in the case and filed a Supreme Court appeal, three had worked in prison medical jobs, one was a guard, and one was a kitchen supervisor.

A federal judge rejected the claim against Wackenhut, relying on the Supreme Court’s 2001 decision in the Malesko case. The case against the individual Wackenhut employees was dismissed on the ground that they were not acting in any official capacity when Pollard was injured, and that, in any event, Pollard was not lacking in any other remedy, since he could sue for damages under California law. That result was overturned by a divided panel of the Ninth Circuit Court. It ruled that the Wackenhut employees were, in fact, acting officially, because they were carrying out a “fundamentally governmental function.” It borrowed that concept from decisions in cases based on the old Ku Klux Klan Act’s Section 1983. (The Circuit Court agreed that Wackenhut could not be sued.)

The fact that Pollard might sue under state law, the Circuit Court indicated, did not make a real difference. While there might be a separation-of-powers problem if the Court created a Bivens damages remedy in a situation for which Congress had established an alternative federal remedy, the Circuit Court said, there is no such problem when the only alternative is under state law. The Circuit Court did acknowledge, though, that the outcome it decreed would mean greater liability for private employees working at a federal prison than for any federal employees at such a facility, since the federal workers are entitled to a limited form of legal immunity. Although the Circuit Court denied en banc review, eight of its judges dissented from that refusal.

The five private employees took the case on to the Supreme Court, filing their petition last March.

Petition for certiorari

The five prison workers — Margaret Minneci, Jonathan E. Akanno, Robert Spack, Bob D. Stiefer and Becky Maness — raised a single challenge in their petition, arguing against the creation of liability for employees of a private firm working for the government under contract, at least where the suing individual has an alternative remedy and where the sued workers are not actual or contractual employees of the government. They contended that the Circuit Court had extended Bivens “far beyond its carefully prescribed contours,” in addition to creating an express conflict with rulings of other federal appeals courts.

The petition noted that, in its Malesko decision a decade earlier, the Supreme Court had left open the question of Bivens liability for private employees working in a government facility. (In the majority’s opinion in Malesko, then-Chief Justice William H. Rehnquist wrote that “the parties agree that the question whether a Bivens action might lie against a private individual is not presented here.” In that case, individuals had also been sued, along with the corporation, but the claim against the individuals had been dismissed on procedural grounds.)

Noting the Court’s repeated refusal since 1980 to imply other Bivens claims, the petition quoted the criticism of Bivens by Justice Antonin Scalia, who had said in 2001 that “Bivens is a relic of the heady days in which this Court assumed common-law powers to create causes of action,” and who added that it and its two extensions should be limited to the exact circumstances present in those cases.

Moreover, the prison workers contended that a key to the Court’s three prior constitutional liability decisions had been the absence of adequate alternative remedies. Inmate Pollard, it argued, did not face that prospect. And, the petition said, even if there were alternative remedies available, the Court had also made clear that a new Bivens claim should not be recognized when there are “special factors counseling hesitation” before doing so. There are strong reasons not to do so here, they argued.

DRI, a private organization that seeks to curb civil lawsuits in general, joined in urging the Court to hear the prison workers’ case. Given how common it is for private employees to work under contract for federal agencies, DRI argued, the Ninth Circuit ruling may well extend — if it is upheld — far beyond the prison setting.

In response, Pollard’s lawyers argued that the case had not proceeded far enough to develop sufficient facts on which to make a decision, and, while conceding that there was a conflict among the courts, they contended that this alone was not enough for the Court to step in. Moreover, they argued that the Ninth Circuit ruling did not actually contradict Supreme Court precedent, but followed a 1974 Supreme Court decision (West v. Atkins) holding a private doctor liable for failure to provide adequate medical care to a prison inmate, on the theory that the doctor actually was working in the role of a “state actor.”

The Court granted review of the prison workers’ petition on May 16, and the case then went over to the new Term for briefing and argument.

Merits briefs

The five prison workers’ brief on the merits closely paralleled the arguments they had made in winning a grant of review: the narrowness of the Bivens precedent, the significance in such cases of the absence of any alternative remedy, and the inequity of exposing private employees at a federal prison to more severe sanctions than would be faced by federal employees themselves. The absence of alternative remedies, the brief asserted, should be sufficient reason on its own to refuse to extend Bivens to another context.

The Court’s past and consistent refusal, for more than 30 years, to extend its precedents is an indication, the brief argued, that the Court has operated on the assumption that Congress is better equipped than the courts “to balance competing policy considerations” on liability for private employees working under contract for a federal agency.

At the merits stage, the private employees have picked up the fervent support of the federal government. Like the employees, the Solicitor General’s merits brief relied heavily upon the fact that Pollard could sue for damages under California law, and, it argued, probably do better than in a Bivens lawsuit. Under California law, the federal brief said, Pollard could sue for medical malpractice, and also could sue for negligence “based upon a jailer’s duty of care to prisoners.” Those are superior options, it contended, because “state tort law imposes a lower standard of liability than the Eighth Amendment, and employees of private prison corporations generally do not enjoy the special immunities conferred on government employees acting in the same capacity.”

The government, too, argued in favor of leaving the matter to Congress.

The private advocacy group DRI, as in the petition stage, filed a merits brief further supporting the prison employees, predicting “an onslaught of lawsuits seeking Bivens damages.” It contended that this “is a hard bill to swallow in this era of soaring budget deficits, reduced public and private resources, and congested court dockets. It also may have a chilling effect on the initiative taken by private contractor employees on behalf of the government.”

In Pollard’s merits brief, his counsel relied significantly upon the last Supreme Court precedent recognizing a Bivens action — Carlson v. Green in 1980. What Pollard is seeking in this case, against private employees working at Taft for the federal government, “is, in every meaningful sense, the same as that approved in Carlson” — a right to sue against prison personnel carrying out official duties.

The brief urged the Court not to make privately held federal prisoners “the only prisoners in the country, whether federal or state,” who are barred from enforcing their constitutional rights through a damages lawsuit. Indeed, the brief cited language from the Rehnquist opinion in Malesko to suggest that a prisoner’s remedy, if one it to be had at all, was against an individual who committed a constitutional violation, not against an institution or governmental entity.

In addition, the brief sought to stress — as the Ninth Circuit had — that the central question in determining whether an alternative remedy is available is whether there is an alternative federal remedy. Pollard has no such federal remedy, if he cannot sue under Bivens, the brief noted. Moreover, Pollard’s attorneys asserted, federal judges should not be put to the burdensome task of sorting through “a patchwork” of state-provided remedies when the prisoner is in a federal facility.

Finally, the brief said, a Bivens action is entirely “workable” in the federal courts, given their long familiarity with Section 1983 claims. “There is,” the brief said, “a large and ever-growing body of precedent distinguishing permissible from impermissible behavior, rendering the action asserted here workable.”

Pollard has drawn the amici support of civil rights and civil liberties organizations, arguing that the Court has never ruled that the availability of state law remedies bars a claim like Pollard’s, and that state remedies may in fact prove illusory; by a group of law professors, contending that the Court has often assumed — without deciding — that a Bivens remedy would be available in a case like this one; and by the government of Mexico, asserting that many Mexican nationals are being held in privately run detention facilities inside the U.S. — such as immigration detention centers — and thus may be exposed to the same kind of woes that befell Pollard.

Analysis

It is difficult, at the outset, to speculate that the Court took on the case for any other reason than to overturn the Ninth Circuit, and continue its unbroken pattern of three decades of refusing to extend Bivens beyond the three instances where such a remedy has been recognized.

If one looks to the precedent that seems nearest to this case, it perhaps would be the 2001 decision against liability for a private corporation operating a government prison (the Malesko case). That, arguably, is nearest because it involved the question of extending Bivens liability to a private actor. Five Justices who took part in that ruling remain on the bench — three from the majority (Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas), and two Justices from the dissent (Stephen G. Breyer and Ruth Bader Ginsburg). If the three in the majority remain skeptical about extending Bivens as a general proposition, it is entirely plausible that they could attract the support of Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., to make a majority.

Thus, even if Breyer and Ginsburg were to pick up the support of Justices Elena Kagan and Sonia Sotomayor, they would still be one short of a majority.

What Pollard may have mostly in his favor is the possibility that the Court could decide that its precedents — relying heavily upon the absence of any alternative remedies as a rationale for permitting a Bivens action — do not really apply when the availability of remedies for a federal claimant like Pollard is one under state, not federal, law. Separation-of-powers principles have been very persuasive for the Court in refusing to create a new remedy if Congress had provided one. That is not a factor in Pollard’s case, he and his supporters have pointed out.

On the other hand, the question of available alternatives is only one-half of the formula the Court has used in deciding whether to create a Bivens remedy. The other half — that rather vague concept of whether there are “special factors counseling hesitation” — has been working repeatedly to defeat pleas for Bivens extensions. That factor could lead the Court to accept the argument of the private workers and their supporters that this is a matter better left to legislation, by Congress.

The Court is expected to decide the case next year.

Posted in Minneci v. Pollard, Analysis, Featured, Merits Cases

Recommended Citation: Lyle Denniston, Argument preview: A new Bivens remedy?, SCOTUSblog (Oct. 27, 2011, 6:11 AM), http://www.scotusblog.com/2011/10/argument-preview-a-new-bivens-remedy/

Restrictionist Lawyer Reveals Long-Term Assault on Immigrant Children » Immigration Impact

Restrictionist Lawyer Reveals Long-Term Assault on Immigrant Children » Immigration Impact

Today, the head of the legal arm of one of the most notorious restrictionist groups in the nation boldly admitted his work on Alabama’s new anti-immigrant law aims to end public education for the children of immigrants. Michael Hethmon of the Immigration Reform Law Institute (IRLI), an offshoot of the Federation for American Immigration Reform (FAIR), made no bones about being the author of the education provision in HB 56—which on its face requires public schools to determine the immigration status of enrolling students and their parents, but in reality chips away at children’s ability to get an education.

In fact, FAIR’s long-term vision to erode any and all rights afforded to the children of immigrants becomes increasingly clear with each new FAIR initiative—from attempts to repeal access to birth certificates at the state level through their state legislative arm (State Legislators for Legal Immigration) to IRLI’s litigation strategies in the courts that attempt to turn U.S. policy against immigrant children.

In defense of the education provision, Alabama Attorney General Luther Strange assured a judge that the provision would require nothing more than data collection and that “no child will be denied an education based on unlawful status.” However in the same New York Times article, Hethmon of IRLI admitted that HB 56’s education provision is just a first step:

The man who wrote the schools provision … that it is not meant as a deterrent — at least not yet. It is, however, a first step in a larger and long-considered strategy to topple a 29-year-old Supreme Court ruling that all children in the United States, regardless of their immigration status, are guaranteed a public education.

Hethmon then goes on to explain why this data collection provision is an important part of bigger plans and why they were careful no to go too far in HB 56:

Mr. Hethmon said the problem with these challenges is that they have not taken the trouble to gather the evidence the court found missing in Plyler.

“The toughest question has been obtaining reliable — and I mean reliable for peer-reviewed research purposes — censuses of the number of illegal alien students enrolled in school districts,” he said. “That information could be compared with other sorts of performance or resource allocation issues.

That information is then passed on to the State Board of Education not only to prepare an annual report with the data but also to “contract with reputable scholars and research institutions” to determine the costs, fiscal and otherwise, of educating illegal immigrants.

Because no one is actually barred from attending school and the data is not passed on to law enforcement, the provision passes constitutional muster, Mr. Hethmon said.

But it also potentially enables a fresh challenge to Plyler v. Doe, and the idea that schools are obligated to provide a free education to illegal immigrants.”

There is no doubt the “reputable scholars and research institutions” Hethmon refers to include FAIR’s research arm and sister group, the Center for Immigration Studies. If the Alabama Department of Education continues to collect data on the immigration status of immigrant children and makes it public, it won’t be long before FAIR and CIS produce data on the “fiscal costs of educating the children of immigrants in Alabama.”

While the New York Times article also quotes well-respected legal scholars who feel the chances of a repeal of Plyer V. Doe are highly unlikely, the damage that would be done by allowing these anti-immigrant groups access to private student data is undoubted. FAIR will exploit this information in order to wage a public relations campaign against the children of immigrants.

FAIR and company, also known as the Tanton Network, are continuing to build an elaborate infrastructure and execute a long term plan that systematically chips away at the rights of immigrant children. It’s time Americans, beginning with Alabamians, put their collective foot down against this.

Voices from Inside Detention « Detention Watch Network: Monitoring & Challenging Immigration Detention, Immigration Enforcement & Deportation

Voices from Inside Detention « Detention Watch Network: Monitoring & Challenging Immigration Detention, Immigration Enforcement & Deportation

Voices from Inside Detention

October 28, 2011
by carlosperezdealejo

Written by Molly Lauterback, Immigrants’ Rights Project, Via ACLU Blog of Rights

We may be immigrants but we are still human beings. This is an experience I don’t want anyone to go [through].”

This is just one excerpt from the hundreds of letters we receive at the Immigrants’ Rights Project. Immigration detainees across the country have sent us their stories for years. We have letters from individuals who first wrote us in 2007 and again, three years later, still sitting behind bars while their immigration cases slowly move through the system.

The thousands of people who languish in detention on any given day deserve to have their voices heard. The Immigrants’ Rights Project began this story collection project to give these individuals a space to share their experiences and an opportunity to speak out about their lives in detention.

Click here to read through some of them. We will be adding more to our website periodically.

Learn more about immigration detention: Sign up for breaking news alerts from the ACLU, follow ACLU on Twitter, and like ACLU on Facebook.

Thursday, October 27, 2011

New Detention Report by @LIRSorg Reconciles Immigration Enforcement with Humanitarian Concerns « Detention Watch Network: Monitoring & Challenging Immigration Detention, Immigration Enforcement & Deportation

New Detention Report by @LIRSorg Reconciles Immigration Enforcement with Humanitarian Concerns « Detention Watch Network: Monitoring & Challenging Immigration Detention, Immigration Enforcement & Deportation

OCTOBER 27, 2011

via Leslie Velez, Director for Access to Justice, at Lutheran Immigration and Refugee Service

New report explores how the federal government can enforce smarter, spend less, and preserve dignity

BALTIMORE, October 27, 2011 – On any given day, 33,400 immigrants, including 1,400 asylum-seekers, are held in a network of more than 250 immigration detention centers across the United States with little or no judicial review or access to a lawyer. Incarceration has become the default means of immigration enforcement and represents a widespread violation of human rights on American soil. Locking up migrants now costs U.S. taxpayers $1.9 billion a year and is expected to increase in 2012.

With intractable gridlock in Washington, comprehensive immigration reform has become a distant dream. Meanwhile the Obama administration has increased enforcement efforts claiming it must enforce the ‘law of the land’. In response to this deadlock Lutheran Immigration and Refugee Service (LIRS) releases Unlocking Liberty, a report that explores key policy reforms that can relieve the suffering of hundreds of thousands of immigrants who are unnecessarily detained every year.

“Immigration authorities have been presented with the false choice between immigration enforcement and the humane treatment of migrants,” said LIRS President and CEO Linda Hartke. “There are proven and effective alternatives to detention available that allow us to uphold two of our greatest traditions as a country: the fair treatment of vulnerable people and respect for the rule of law.”

Community-based alternatives have proven to be more cost-efficient and humane than detention. Since the 1980’s, projects operated by non-profit organizations in the United States and abroad have provided tailored supervision, case management, and legal and social services to participants resulting in high appearance rates in immigration court at a far lower cost to the government than traditional detention.

While alternatives to detention save the government up to $100 a day per immigrant, they also lower the human cost of prolonged and indefinite detention experienced by those whose lives are unnecessarily put on hold while the courts deal with the tremendous backlog of immigration cases.

“There is a fundamental difference between prudence and excessive precaution,” said Leslie E. Velez, Director for Access to Justice at LIRS. “And that difference is felt in the lives interrupted, the families separated, and the unnecessary psychological harm done to those who have experienced significant trauma.”

The report points to an individualized risk assessment tool as the first critical step in reforming immigration enforcement. Pivotal to determining the necessary level of supervision is a process by which every individual is screened to assess the likelihood of absconding or any imminent security threat. This in turn allows for a presumption of release to be established under which the government must prove a need to detain someone. Current mandatory detention policies fail to discriminate between immigrants who are a flight or security risk and those for whom detention is unnecessary or inappropriate.

“We need to look at migrants as individuals,” said Velez. “Once we can shift from a one-size-fits-all approach to an individualized case-by-case determination of who should be detained, we will quickly see how often detention is disproportionate to our needs and harmful to the lives of migrants.”

The full report, along with additional media, expert interviews, and resources, is available atwww.lirs.org/dignity.

About Lutheran Immigration and Refugee Service

LIRS welcomes refugees and migrants on behalf of the Evangelical Lutheran Church in America, the Lutheran Church—Missouri Synod and the Latvian Evangelical Lutheran Church in America. LIRS is nationally recognized for its leadership advocating with and on behalf of refugees, asylum seekers, unaccompanied children, immigrants in detention, families fractured by migration and other vulnerable populations, and for providing services to migrants through over 60 grassroots legal and social service partners across the United States.

Tuesday, October 25, 2011

Counties Defy Feds, Vow Not to Detain Immigrants on ICE’s Behalf - COLORLINES

Counties Defy Feds, Vow Not to Detain Immigrants on ICE’s Behalf - COLORLINES

Counties Defy Feds, Vow Not to Detain Immigrants on ICE’s Behalf

Tuesday, October 25 2011, 10:00 AM EST Tags: deportation dragnet, Secure Communities

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Cooperating with the federal government’s immigration enforcement agenda may be mandatory for local law enforcement, but localities are finding ways around the federal government’s programs.

Last week northern California’s Santa Clara County became the latest locality to pass an ordinance that will likely curb the number of its residents who get handed over to federal immigration authorities through the immigration enforcement program Secure Communities. That same week, Washington, D.C. mayor Vincent Gray signed an executive order reaffirming the rights of D.C. residents not to get harassed by law enforcement officers about their immigration status.

These announcements are the latest in a string of similar moves from other counties which have attempted to push back on the federal government’s interpretation of its Secure Communities program. S-Comm, as the initiative is often called, allows immigration officials to check the fingerprints of everyone booked into a local or county jail against federal immigration records. Even if the person is wrongfully arrested or never charged with any crime, they become subject to deportation if they’re found to be undocumented. If a match is found, Immigration and Customs Enforcement — if it doesn’t already have an agent posted inside the local jail — will call local law enforcement and ask them to detain a person while ICE agents come down to the jail to take them away for detention proceedings.

Santa Clara County has now determined that enforcing such detainers for ICE are “requests” from the federal government which it’s under no obligation to carry out. It’s further argued that holding onto people in county jails for ICE is a costly financial burden that localities, which are not reimbursed by the federal government, should not to have enforce.

“Today is historic,” said Santa Clara County Supervisor George Shirakawa on the day of the vote, New America Media reported. “We now have the most progressive policy in this field, and the whole nation will be looking at us as Santa Clara County makes it official: we don’t do ICE’s job.”

Washington, D.C. Mayor Gray signed an executive order that also promised to stop the practice of holding onto people for ICE longer than the legally mandated 48-hour period, which localities have done as a courtesy to the federal agency.

“We’re not going to be instruments of federal law when it comes to immigration status,” Gray said last week, Washington D.C.’s WTOP reported.

Such resistance comes as the federal government is pushing harder and harder to limit states’ attempts to opt out of the once-optional program. This past summer, after the governors of Illinois, New York and Massachusetts all attempted to opt out or distance their states from the program, the Department of Homeland Security (DHS) responded by canceling every contract it had drawn up with participating states. DHS argued that the program was not optional after all.

The program has been a cornerstone of the Obama administration’s deportation agenda, and been a primary driver of the administration’s record-breaking deportation rates.

While the loudest resistance to the program has come from immigrant rights advocates, local law enforcement officers have also been vocal in their criticisms. Traditionally, immigration violations are civil offenses that are not enforced by local law enforcement.

But that’s no longer the case.

The school of thinking among a growing number of law enforcement experts, and not just immigrant advocates, is that forcing police to help the federal government enforce immigration law breaks down trust in a community, and hampers police officers’ ability to do their primary job of ensuring public safety.

Partnerships between local law enforcement and immigration officials “creates the very distinct impression that police are agents of ICE,” said Stephen Smith, the organizing director of the Illinois Coalition of Immigrant and Refugee Rights. “And if you think the police are agents and you are part of a mixed status family, you don’t call the police and you don’t report crimes on your own.”

Earlier this summer San Francisco Sheriff Michael Hennessy, citing exactly this reasoning, announced that he’d no longer honor ICE detainer requests for people who were arrested by not charged with a crime; those who were victims of domestic violence and those with no prior criminal record. Last month Illinois’ Cook County, where the cost of detaining people on behalf of ICE amounts to $15.7 million dollars a year, passed a local ordinance similar to Santa Clara County’s. Smith credited local law enforcement officials in Illinois and around the country for providing leadership on the issue to get these ordinances passed.

“The unsung heroes in this are the law enforcement officials who are providing legitimacy to claims that if anything, these programs make us less safe, not more safe,” Smith said.

While other attempts to end participation in Secure Communities have not been successful, localities have been able to assert this kind of resistance so far.

“I think what sheriffs and what localities are doing in setting this trend is totally within their right and within their scope of local jurisdiction,” said B. Loewe, a spokesperson with the National Day Laborer Organizing Network, which is organizing to dismantle Secure Communities. “How their agencies respond to [detainer] requests is within their purview.”

“Jurisdictions who ignore detainers bear the risk of possible dangers to public safety,” ICE spokesperson Gillian Christensen said this summer, US News reported.

According to Smith, such framing is a disingenuous ploy, since local ordinances that limit localities’ cooperation with detainer requests do not bar the federal government from picking up the tab for these costs.

Secure Communities is slated to be operational across the entire country by 2013.

Monday, October 24, 2011

Fear is Biggest Obstacle, Says Farmworkers’ Union | Labor Notes

Fear is Biggest Obstacle, Says Farmworkers’ Union | Labor Notes

Eduardo Soriano-Castillo
| October 24, 2011
A new Farm Labor Organizing Committee report says tobacco pickers struggling to organize are stymied by fear. The report adds to years of pressure calling on Reynolds and other tobacco giants to meet with the union. Photo: Barb Howe.

An undocumented farmworker leader was deported last week, reinforcing the findings of a new Farm Labor Organizing Committee report that says tobacco pickers struggling to organize are stymied by fear.

Workers fear to ask for a drink of clean water. They fear asking for a break. They fear arrest and deportation, and they fear losing their ability to feed their families, if they’re targeted for trying to unionize.

The report, “State of Fear: Human rights abuses in North Carolina’s tobacco industry,” was produced with Oxfam, an international relief and development organization. The Farm Labor Organizing Committee (FLOC) represents more than 6,000 farmworkers in North Carolina.

The report was unveiled at a September rally in Dudley, North Carolina, where farmworkers and community supporters gathered with researchers, farm workers, and FLOC President Baldemar Velasquez.

Researchers conducted in-depth interviews with 103 farm laborers. During the course of their interviews one theme came up again and again: fear.

According to the report, nine out of 10 tobacco workers are undocumented, and their immigration status contributes to the fears they face every day.

All this fear means that grievances go on unaddressed and the suffering continues in North Carolina’s blazing heat. FLOC farmworkers have been pressuring Reynolds Tobacco since 2007 to come to the table and open a dialogue.

Research findings include:

  • One in four workers interviewed said they were paid less than federal minimum wage of $7.25 an hour.

  • A majority of workers reported suffering from green tobacco sickness caused by high doses of nicotine absorbed through the skin. Workers also said employers don’t supply adequate protective gear like gloves to reduce exposure.

  • Workers report that clean water is rarely available, which increases the risk of heat stroke, a leading cause of death for farmworkers. According the Centers for Disease Control and Prevention, 68 farm workers died from heatstroke between 1992 and 2006, representing a rate nearly 20 times greater than for all U.S. workers.

  • Laws requiring that workers have cold, fresh water readily available are being ignored.

  • Workers report living in squalor, with insect and rodent infestations, non-functional showers and toilets, overcrowding, beds without mattresses and leaky roofs.

FLOC is calling for industry leaders like Reynolds to create a council that brings together manufacturers, growers, farmworkers, and their chosen representatives to address conditions in the fields.

Briana Connors, a FLOC organizer, said the union isn’t pushing for a union election or a voluntary recognition of a majority through card check at this stage.

“We have a small but growing unofficial committee of trained FLOC leaders in place throughout the fields of North Carolina,” Connors said. “They do a lot of member-to-member outreach and leadership development at the work site.”

The anti-immigrant atmosphere in the South is hindering the union’s efforts.

“Because of high turnover and the recent wave of legislative attacks on immigrants we are facing an unprecedented level of fear from the workers to organize or even voice the most basic of grievances,” Connors said. “Just last week we got the bad news that one of our leaders in Georgia has been deported as a result of a routine traffic stop.”

Building Pressure

Justin Flores, a FLOC organizer in Dudley, North Carolina, said the report adds to years of direct action.

Every year, the union and its faith allies have held demonstrations at the tobacco giant’s shareholder meetings, with several activists making their way inside to carry protest messages to company executives.

FLOC has also targeted JP Morgan Chase, one of Reynolds’ main lenders. FLOC joined with community allies and religious leaders for nationwide protests in February, calling attention to the mistreatment of farmworkers and foreclosed-on homeowners at almost 200 Chase locations.

Auto Workers President Bob King announced the UAW had divested hundreds of millions of dollars from Chase last year in solidarity with farmworkers.

Phillip Morris and British American Tobacco, which owns 40 percent of Reynolds, agreed in May to meet with FLOC workers and organizers. The date of that meeting is still to be set.

“We know the pressure is working and now it’s just about making sure we get concrete commitments out of these meetings,” Flores said. “We’re changing how the tobacco giants do business.”

S-Comm Silences Domestic Violence Victims

S-Comm Silences Domestic Violence Victims

S-Comm Silences Domestic Violence Victims

Posted by Amy Woo, October 21, 2011 | Source: Bilingual Weekly News

Ed. Note: In commemoration of Domestic Violence Awareness Month, the following piece explores the ramifications of Pres. Obama’s federal immigration enforcement program known as Secure Communities, or S-Comm, on immigrant victims of domestic violence.

USA – For years, Yan endured brutal beatings and repeated rapes at the hands of her husband. An undocumented immigrant from Asia, she never called the police out of fear that she would be deported and forever separated from their child, who was born in the United States.

Her husband constantly told her as much, so she never sought help and felt trapped in her nightmare marriage. Ultimately, thinking she had nowhere to go and no one to turn to, Yan and her child returned to her country of origin, where at least she had her family to support her.

Undocumented immigrant victims of domestic violence are conditioned by their abusers to fear the police. An abuser will tell a victim that if she were to call the police, when the police arrive, he will tell them that she hit him, she’ll be arrested, deported and ultimately never see her children again.

With the enormous progress that the domestic violence movement has made in empowering victims to seek help such threats should be empty. However, Secure Communities – a controversial immigration enforcement program that allows federal authorities to screen fingerprints of those arrested by local police to identify undocumented immigrants — lends credibility to abusers’ threats by making deportation a very real possibility.

The projected expansion of Secure Communities to every jurisdiction in the U.S. severely undercuts the advances made by advocates to empower battered immigrant women to seek help.

Heightened distrust of police

Only about 19 percent of undocumented domestic violence victims come forward to report their abuse to the police. Some fear deportation, while others have had negative experiences with police in their countries of origin.

For such women, it is not unusual to have previously called the police in their country of origin, only to be told that the abuse was a family matter, not requiring police involvement. Furthermore, such calls often enrage the abuser, putting the victim in even greater danger.

Often times, if abuse victims don’t already fear the police, abusers will convince victims they should be afraid of police. Part of the fear involves police procedures when officers respond to a domestic violence incident.

If both the victim and batterer have wounds (including defensive wounds on the batterer, such as scratches), the police must determine the primary aggressor. If the victim does not understand or speak enough English to explain the truth of the situation, the police may determine that there was mutual combat and arrest both parties. Even worse, the victim may be the only one taken into custody.

Consider what happened to Lin, a battered woman who emigrated to the U.S. with the help of her husband, a U.S. citizen. Upon her arrival, her once-loving husband became extremely abusive, beating her regularly and forcing her to perform unwanted sexual acts. There were threats to kill her, and at one point he pointed a gun to her head.

One day, after a sever beating, he called the police himself. Since he was over a foot taller than her and much stronger, he grabbed her hands and used them to hit himself. When the police arrived, because both Lin and her husband had red marks on them and Lin could not clearly explain what happened in her broken English, they were both arrested. She was later released without being charged, but not before being detained in a holding cell over an entire weekend.

The hope is that in situations like this, justice will prevail and the victim will be exonerated. However, the reality is that some victims are not able to resolve matters quickly at all.

Agatha, an undocumented immigrant originally from Latin America, was wrongfully arrested for domestic violence and had to go through an entire jury trial before being exonerated.

With her bail amount beyond what her family could afford, Agatha describes her incarceration as “the most horrifying” time of her life. She could not eat or sleep for fear of being deported and never seeing her children again. Had she been arrested when Secure Communities was in effect, her greatest fear might have become a reality, even had she been acquitted.

In situations like Agatha’s, the victim finds that in reaching out for help she risks being ripped away from her children and possibly returned to a country where she will be marginalized and persecuted for being a divorced woman, a single mother, or for being perceived as “rejected” by her spouse.

Domestic violence victims should not have to choose between their own and their children’s safety, or being forever separated from their children and sent back to their home countries.

Secure Communities is a significant setback that not only dis-empowers domestic violence victims, but reinforces the structures and beliefs that allow for the perpetuation of domestic violence.

Amy Woo is a staff attorney with the Los Angeles-based Asian Pacific American Legal Center.

Private Paramilitary Training Complex Slated for Border Hits a Hitch | the narcosphere

Private Paramilitary Training Complex Slated for Border Hits a Hitch | the narcosphere

Private Paramilitary Training Complex Slated for Border Hits a Hitch

However, Opponents of Planned Facility Remain Wary of Shell Game Shenanigans

A paramilitary service company’s plan to develop a nearly 1,000-acre military and law-enforcement training facility near the California border with Mexico is now in the process of being scuttled by a foreclosure action on the property.

At least $1 million is still owed on the property by the company, called Wind Zero, according to the current notice of default obtained by Narco News — and some sources familiar with the foreclosure process indicate the amount owed, including interest and penalties, exceeds $1.5 million.

“The note [loan] on the property is in default, and we are going through the foreclosure process,” confirms Stewart Cowan, a San Diego attorney representing the note holder, Donna Perrine, who sold the 944-acre site to Wind Zero in 2007.

A check of public records for the Wind Zero property shows that the owner also is in arrears on 2010 taxes owed to Imperial County, Calif., to the tune of nearly $2,800. David Black, a senior planner with Imperial County, says he is not aware of either the foreclosure or the taxes owed with respect to the Wind Zero project.

“I was the project planner for that project, but I have not kept up on the foreclosure or tax matters,” Black says. “If they come in to apply for building permits, then it might become an issue. But nothing has been done on the (Wind Zero) project since they received approval in December of last year.”

The proposed Wind Zero project, which would be developed in three phases at a cost of up to $100 million (some $15 million for Phase 1), has been billed by Wind Zero as a privately operated, state-of-the-art training center that would employ up to 200 people and serve as economic boon to the small California border towns of Nomirage and Ocotillo, located in Imperial County some 80 miles east of San Diego and less than a dozen miles from the Mexican border.

The paramilitary training center is slated to include numerous shooting ranges allowing for some 57,000 rounds of ammunition to be fired off daily; a mock-up of an urban neighborhood for practices assaults; a 6-mile dual-use race track for teaching defensive and offensive driving (and for private-pay recreational use); an airstrip and multiple heliports; and enough housing and RV camper space (along with a 100-room hotel) to accommodate a small battalion of warriors.

Shell Game

Despite the money problems apparently afflicting the Wind Zero project, opponents of the development indicate that there is still some concern that a paramilitary front company, such as an affiliate of Xe (formerly Blackwater), could still purchase the property out of foreclosure and proceed with the project.

In fact, the planned Wind Zero training center is not unlike a similar project proposed several years ago in southern California by Xe, then called Blackwater (which, like Wind Zero, was founded by former Navy SEALs). Blackwater pulled the plug on that controversial project in early 2008 due to community opposition.

“There have been rumors floating around that Wind Zero [led by former Navy SEAL Brandon Webb] has some type of affiliation with Xe, and that it is possible Wind Zero could sell it’s interest in the project,” says Larry Silver of the California Environmental Law Project. Silver is representing the Sierra Club and the Desert Protective Council in a lawsuit against Wind Zero and Imperial County, Calif. — which has sanctioned the development of Wind Zero’s paramilitary training center.

Attorney Cowan concedes that there is nothing to prevent a company like Xe, or an affiliate of Wind Zero, from buying the note due on the property where the Wind Zero training center is slated to be constructed.

“They could show up at the courthouse in Imperial County and buy the note at the foreclosure auction,” he says.

Narco News attempted to contact Wind Zero top gun Webb, but phone calls were not returned. According to prior media reports, Webb insists Wind Zero is not affiliated with Xe, but rather he considers the East Coast company to be a competitor.

Webb addressed the issue in an interview with the San Diego Reader in January of this year.

From the Reader story:

Anger over Wind Zero’s proposal intensified in June 2007 when Brian Bonfiglio, Blackwater’s vice president, showed up at a presentation that Wind Zero chief executive Webb was giving at a community meeting.

“There’s been a lot of negativity about this Blackwater [Xe] issue,” Webb says during a January 17 phone interview. “There’s this big conspiracy that we’re a shadow company for Blackwater, but it’s ridiculous. [Bonfiglio] showed up at the meeting, and I didn’t even know until afterwards. If we were associated, then the worst thing I could do would be to bring a member of Blackwater to a community meeting.”

Broker in the Weeds

However, sources told Narco News that in late September, about a month after the notice of default on the Wind Zero site was recorded, a broker from Texas by the name of David Keener contacted Cowan to make an offer on the property.

Cowan confirms that he was contacted by Keener, whom, he says, “made an offer on the property that was considerably less than the value of the note.”

“Donna [Perrine, the holder of the note] rejected the offer, and there was no deal made with Keener,” Cowan adds.

In a check of Texas corporation records, Narco News discovered that Keener is listed as the registered agent for MDJ Texas Reality Holdings LLC. Those same records show that MDJ is affiliated with a company called Holland Park Capital of Austin, Texas, whose registered agent is an individual named Mark Jansen.

A Form D Notice of Exempt Offering of Securities filing that Wind Zero lodged with the U.S. Securities and Exchange Commission in July 2009 lists Jansen as an executive officer and director of Wind Zero.

Narco News was unable to reach Jansen for comment. However, Keener, when contacted in Texas, did confirm that he knows Jansen and had a business relationship with him. However, Keener says he is now the sole owner of MDJ and it is no longer affiliated with Holland Park Capital.

Keener also says he was not representing either Jansen or Arlington, Va.-based Xe in the bid to acquire the Wind Zero property in Southern California.

Xe is owned by USTC Holding LLC, which counts as members of its board of directors former Bush Administration U.S. Attorney General John Ashcroft, former Clinton Administration General Counsel Jack Quinn, and retired U.S. Navy Admiral Bobby R. Inman. Listed as a director of Wind Zero is former Navy Captain and RAND Senior Management Systems Analyst John Birkler , according to Wind Zero's 2009 Form D filing with the SEC.

RAND bills itself as a nonprofit, nonpartisan think tank, but, in reality, it has a long history of close ties to the military and private-sector warfare complex. RAND media spokesman Warren Robak told Narco News previously that “John Birkler and his involvement with Wind Zero is a private matter — it has nothing to do with RAND.”

Keener would say only that he was representing in his bid for the Wind Zero property “an investor from the East Coast who was familiar with the [Wind Zero] project.”

The environmental groups represented by Silver and the Quechan Indian Tribe (the land slated for the Wind Zero project is the site of a tribal burial ground) filed their separate lawsuits earlier this year in California Superior Court seeking a judicial order that will undue Imperial County’s approval for the planned Wind Zero project.

Silver says the Sierra Club and Desert Protective Council have no plans to drop their lawsuit, even if the Wind Zero property is sold — given the concern that a third party affiliated with either Wind Zero or Xe may still seek to purchase the property out of foreclosure (at a significantly reduced price) and move forward with the project under the existing development agreement with Imperial County.

“There is a hearing in the case set for Nov. 10, and we are prepared to ask the court to set aside the approval for the project,” Silver says. “If the judge says no, then we plan to appeal.”