Expanding the Rights of Immigrants by Voting ‘Yes’ for a New York Constitutional Convention

By Cyrus D. Mehta and Sophia Genovese-Halvorson

On November 7, 2017, voters in New York will get an opportunity to decide whether to hold a Constitutional Convention in order to improve New York’s Constitution. The next opportunity to engage in this unique democratic experiment will arise in 2037.

The latest polls have shown that large numbers of voters want changes in New York’s Constitution that the legislature has failed to enact – e.g. an entitlement to healthy air and clean water, strict limits on the outside employment of legislators, independent ethics enforcement, an end to gerrymandering, making it easier to register and vote, closing campaign finance loopholes, term limits, and the expansion of immigrants’ rights and protections. At the same time, a poll is showing that New Yorkers oppose calling for the Convention.  Many reasonable people oppose voting for a New York Constitutional Convention in the age of Trump, dark money and Brexit. But when we run away from democracy itself out of fear, we will never be able to improve the rights of New Yorkers even beyond the US Constitution, including immigrants.  We have this opportunity only once every 20 years.

Some say the path forward is to replace New York’s elected representatives with others who will make the needed reforms.  However, as the late Governor Mario Cuomo observed, our elected representatives live in a cocoon of unaccountability and incumbent protection.   The system is designed to secure their reelection.  That system needs to be changed, and it will take an outside force to do it. Short of calling a Constitutional Convention, the only way to amend the Constitution, or to pass any law, is with the approval of the legislature. But as just explained, elected officials are in favor of maintaining the status quo.

There is also an understandable, but misguided, fear that certain protections, such as the labor bill of rights, the duty of the legislature to care for the needy, the right to a free public education, and the preservation of the Adirondack Park will be at stake. However, these are indeed rights and protections that were created through the Constitutional Convention process. The New York Times, while unfortunately coming out against the Convention, has called these concerns “overwrought.” The history of the Convention has not been one of stripping rights; rather, it has a rich history of creating radical advancements in human rights for all New Yorkers. The 1938 Constitutional Convention affirmed the duty of the state to aid the needy, promote public health, educate its children, and care for the physically and mentally handicapped. It is not as if a vote in favor of a Constitutional Convention would give a carte blanche to delegates to adopt any reforms of their choosing. The last state Constitutional Convention was in 1967, where voters ultimately rejected the proposed changes created by the Convention Committee. Then there is the claim that reform minded delegates won’t get elected and that the Convention will be “hack filled.”  The strikes us as having too little trust in voters who having called for a Convention to effect reform would supposedly turn around and elect people opposed to reform.  Voters in a progressive state like New York are much smarter than how they are perceived by opponents to the Convention.

The 2017 Convention Vote will again provide New Yorkers with the opportunity to continue the tradition of expanding rights in the New York Constitution, including the expansion of rights and protections afforded to immigrants. Albany had not been able to bring about any meaningful reforms for immigrants. Our “gerrymandered” elected representatives are so entrenched that only a criminal conviction, rather than votes, can dislodge them.  If we can broaden equal rights for all New York residents, including immigrants regardless of status, we will not need to rely on Albany that is in a perpetual logjam and stalemate. For example, New York’s Department of Motor Vehicles will be compelled to issue drivers licenses to all New York residents, regardless of immigration status, based on the broader equal protection clause in the New York Constitution that can be developed through a Constitution Convention.

Cyrus Mehta’s Op-Ed in The New York Daily News forcefully and eloquently advocates for expanded equal rights for all New York residents, including immigrants. It is reproduced below:

“The N.Y. constitutional convention immigrants need”

As the federal government threatens undocumented immigrants, New Yorkers have an opportunity to provide vital protections to those immigrants living in the state. On Election Day, voters can choose to convene a constitutional convention where the rights of those immigrants could be strengthened in ways that the federal government cannot erase.

It’s an opportunity we must not miss.

New York has always been a magnet for immigrants. The Statue of Liberty is here — not in Washington, D.C. — for a reason. Yet the state Constitution has never addressed the discrimination immigrants face.

It addresses only discrimination based on race and religion, not on country of origin or immigration status. Notably, it does not even prevent discrimination based on gender.

That’s a misfit for the character of our state. In 2015, more than 4.5 million foreign-born individuals constituted 22.9% of New York’s population. Only California has a higher count.

More than 3 million foreign-born immigrants live in New York City, more than in any other city in the world. They represent over 37% of the city’s residents.

Among these immigrants are an estimated 817,000 in New York State, including 575,000 in New York City, without valid federal authorization. These undocumented immigrants — who pay taxes, otherwise observe our laws, and enrich our communities — contributed $40 billion to New York’s economy and $1.1 billion to state and local taxes in 2015.

While the equal protection clause of the U.S. Constitution covers all persons within the jurisdiction of any state, the U.S. Supreme Court has applied a relaxed standard of review to discrimination against undocumented immigrants. As a result, laws depriving those immigrants of basic civil rights have been upheld.

An amendment to the state Constitution could prohibit such discrimination — and finally reflect the values of New York, where over the decades governors and mayors, Republican and Democratic alike, have consistently defended the rights of undocumented residents.

While it’s federal laws that mandate that undocumented immigrants be removed — subject to the executive branch’s priorities, which are at least in theory supposed to be focused on threats to public safety — the likelihood is uncertain. Even if the federal government initiates removal, proceedings can take years.

More importantly, immigration status is often uncertain. Immigrants can gain authorization to remain by falling in love with and marrying an American. More than 800,000 young undocumented people who came into the United States before the age of 16 received authorization to remain under Deferred Action for Childhood Arrivals — an Obama-era program.

President Trump has canceled DACA, but suggested in a tweet that “Congress can legalize DACA,” and added that, if not, he “will revisit the issue.”

Basic rights should not hinge on such vagaries.

People are undocumented because the federal immigration system, desperately in need of sensible reform, has not provided meaningful pathways to legal status for many who have family or jobs in the United States. As New York will continue to be home to undocumented immigrants, it is only fair that the state Constitution provide equal civil rights to all, regardless of immigration status.

Once such equal rights are established, they will preclude discrimination against New York residents based on their immigration status.

For example, New York would have to grant driver’s licenses to undocumented immigrants. That would help ensure that our roads are safe and provide a boon to those who need to drive in order to work or take their children to school.

Such an expanded protection against discrimination in our state Constitution could not be erased by the federal government.

In specific areas, federal law may preempt the states — but, under our federal system, state law governs most civil rights, such as the right to contract, to an education, to buy a home, to drive and more.

At a time when the federal government seeks to force state and local law enforcement to punish undocumented immigrants in ways that go beyond valid federal preemption and financial incentives, asserting New York’s sovereign lawmaking and enforcement rights is vital.

The first step in getting from here to there is voting yes on a constitutional convention.

(This blog represents the personal views of the authors and not necessarily those of any organizations that they may be a part of)

Sophie Cruz and Pope Francis: Shattering Myths About Immigrants

How are immigrants currently combating labels and stigmas and what can we do more to promote immigrant pride?

I am participating in #MoreThanALabel: Immigrant Stories, Simmons College’s online MSW Program’s campaign to promote transcending labels. By participating in this campaign, I will be sharing my thoughts and how I believe we can shatter the stigmas often attributed to immigrant communities.


As Pope Francis arrived in the United States on September 23, 2015 and was cheered by thousands in Washington DC, Sophie Cruz, a 5 year old US citizen whose parents are undocumented, came forward and handed him a t-shirt and a letter. The t-shirt  read, “Pope: rescue DAPA, so the legalization would be your blessing.”

Sophie then said this later in the day:

“I believe I have the right to live with my parents. I have the right to be happy. My dad works very hard in a factory galvanizing pieces of metal. All immigrants just like my dad feed this country. They deserve to live with dignity. They deserve to live with respect.”

President Obama’s executive action announced last November 2014 would have allowed Sophie’s parents to defer their deportations and apply for temporary authorization to remain in the United States so that they could contribute more meaningfully to America. While millions of immigrants and their supporters cheered after Obama’s announcement, not everyone was pleased. Texas, along with 24 more states and governors, sued to block the Deferred Action for Parent Accountability (DAPA) program. Judge Andrew Hanen in a Texas federal district court readily agreed with the plaintiffs that DAPA was not issued in accordance with law and blocked the program. Also blocked was the expansion of another program that was announced in 2012 to allow those who came before 16 and who fell out of status for no fault of their own to defer their deportation. The expansion would have granted work permits for 3 years instead of 2 years, and would have also lifted the age limit of 31. The Fifth Circuit Court of Appeals is about to decide whether to reverse the lower court or not. It is anticipated that the Fifth Circuit will affirm Judge Hanen’s decision, and the battle will move up to the Supreme Court.

Young Sophie’s actions and her interaction with Pope Francis today are powerful and poignant, and perhaps more effective than the current legal team defending the lawsuit. She has shown how mean spirited the efforts have been to block DAPA. Immigrants work very hard and like her dad they “feed this country.”  Pope Francis in turn wants to highlight the lack of access for migrants as one of the most pressing issues of our time.  Sophie and Pope Francis have further shown how wrong Donald Trump has been in falsely claiming that undocumented immigrants from Mexico are criminals and rapists.  While Trump and others wish to abolish birthright citizenship protected by the Fourteenth Amendment, Sophie and the Pope have demonstrated that repeal of birthright citizenship will result in absurd and disastrous results. Birthright citizenship renders all born in this country to be treated equally as Americans no matter who their parents are or where they came from, and it also prevents a permanent underclass from taking root that will continue for generations. The demonization of immigrants reached another nadir recently  when Trump did not dissuade anti-Muslim comments in his rally and Dr. Carson categorically stated that he would never support a Muslim to be President of the United States.

In their serendipitous encounter today, Sophie and Pope Francis courageously shattered the false labels and stigmas that are associated with immigrants. It is not that people want to remain undocumented. They are forced to remain undocumented because our immigration system is terribly broken and does not afford meaningful pathways to legally come to America to work like Sophie’s dad or to unite with families. Congressional inaction in not expanding these pathways has contributed to the buildup of 12 million plus undocumented people, who work hard and contribute to the well being of America, and who now according to Trump, should all be deported. We hope that Sophie and Pope Francis reverse this deplorable trend and shine the way towards repairing America’s broken immigration system. America will only be made great again when Sophie can live without fear and succeed!


By Cyrus Mehta

Immigration lawyers commonly encounter a client who is undocumented and asks about options to obtain status. If in the event there are no options, the next question is whether there are any options that might arise in the future. In the course of counseling the client who is not in status, can the attorney recommend that this person remain in the U.S. in this unlawful status until a benefit “may” accrue in the near or distant future? Even if the attorney may not directly advise the client to remain in the U.S. in violation of the law, would an attorney advising the client of a potential future immigration law be implicitly encouraging the client to remain in violation of the law, and also be implicating any ethical obligations?

This situation indeed is one of the great paradoxes in immigration practice, since an individual who is in undocumented status need not expect to remain eternally undocumented. A classic example is one who is “grandfathered” under § 245(i) of the INA. So long as an immigrant visa petition or labor certification was filed on behalf of this person on or before April 30, 2001 that was “approvable as filed,” and if the principal applicant, for whom the labor certification was filed was physically present in the U.S. on December 21, 2000 (in cases where the labor certification or petition was filed after January 14, 1998), this individual can ultimately adjust status in the U.S. when she is eligible to do so.

In the meantime, while this individual is waiting to become eligible for adjustment of status, he or she continues to remain unlawfully in the U.S. and may also be placed in removal despite having an approved petition, but unable to adjust status until the priority date becomes current. We encounter yet another paradox when such a person who is potentially eligible under § 245(i) is issued a Notice to Appear and is placed in removal proceedings. The Board of Immigration Appeals has held that it may be an abuse of discretion for an Immigration Judge to deny a continuance to a respondent who has a prima facie approvable visa petition, in both the family and employment context, and is also potentially eligible for adjustment of status. See e.g. Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009); Matter of Rajah, 25 I&N Dec. 127 (BIA 2009).

Indeed, being documented or undocumented is part of the same continuum. A thoroughly undocumented person, when placed in removal proceedings, can seek cancellation of removal under stringent criteria pursuant to INA §240A(b), such as by being physically present in the U.S. on a continuous basis for not less than 10 years, by demonstrating good moral character during this period, by not being convicted of certain offenses and by demonstrating “exceptional and extremely unusual hardship to the alien’s spouse, parent, or child,” who is a citizen or a permanent resident. Similarly, the undocumented person can also apply for asylum within one year of his or her arrival in the US, and can do so even later, if exceptional or extraordinary circumstances are demonstrated. Conversely, a documented person, such as one in H-1B status can according to the government also technically be considered not in status, during the pendency of an extension request, although this position has been successfully challenged.

Such a person whose visa has long since expired could also possibly get wrapped up in a romantic encounter with a U.S. citizen, marry, and dramatically convert from undocumented to permanent resident within a few months. At times, Congress bestows such permanent residency, as we have already seen, through section 245(i) or the LIFE Act, or a person can obtain Temporary Protected Status (TPS), if a calamity were to befall his or her country such as the recent TPS program and its extension for Haitians after the devastating earthquake on January 12, 2010. Millions of undocumented immigrants, including children, who have fallen out of status or entered without any status, are waiting for Congress to pass legislation that could legalize their status. Immigration lawyers also advocate on their behalf, and help them draft petitions and accompany them to the offices of elected representatives.

The following extract from the U.S. Supreme Court’s decision in Plyer v. Doe, 457 U.S. 202 (1982), which held that undocumented children could not be deprived of a public education, is worth noting:

To be sure, like all persons who have entered the United States unlawfully, these children are subject to deportation. But there is no assurance that a child subject to deportation will ever be deported. An illegal entrant might be granted federal permission to continue to reside in the country, or even become a citizen.

Against this backdrop, the immigration lawyer must be mindful of certain limitations. On the one hand, a lawyer is under a duty to act zealously. According to Rule 1.3 of the ABA Model Rules of Professional Conduct, “A lawyer shall act with reasonable diligence and promptness in representing a client.” Comment 1 to Rule 1.3 provides, “A lawyer should …take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.” On the other hand, a lawyer can only zealously represent his or her client within the bounds of the law. Under Model Rule 1.2(d), “A lawyer shall not counsel a client to engage or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist the client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

The key issue is whether counseling a client to remain in the U.S., even indirectly (such as by advising of future immigration benefits), is potentially in violation of Model Rule 1.2(d) or its analog under state bar ethics rules.

While practitioners must ascertain the precise language of the analog of Model Rule 1.2(d) in their own states, one can argue that overstaying a visa is neither “criminal” nor “fraudulent” conduct. Even while an entry without inspection (EWI) might be a misdemeanor under INA §275, it is no longer a continuing criminal violation to remain in the U.S. after the EWI. Although being unlawfully present in the U.S. may be an infraction under civil immigration statutes, it is not criminal or fraudulent, and given the paradoxical situation where an undocumented noncitizen can eternally hope to gain legal status, a lawyer ought not to be sanctioned under Model Rule 1.2(d) or its state analog with respect to advising individuals who are not in status in the U.S.

Of course, the most prudent approach is to refrain from expressly advising or encouraging a client to remain in the U.S. in violation of the law; and instead, present both the adverse consequences and potential benefits to the client if he or she chooses to remain in the United States in violation of the law. In fact, adopting such an approach becomes imperative when remaining in the U.S., in certain circumstances, does constitute criminal conduct. For instance, failure to depart after a removal order within 90 days under INA §243 renders such conduct a criminal felony. Even here there is an exception at INA §243(a)(2), which provides: “It is not in violation of paragraph (1) to take any proper steps for the purpose of securing cancellation of or exemption from such order of removal or for the purpose of securing the alien’s release from incarceration or custody.” Moreover, there are provisions that allow a person who received a final removal order many years ago to reopen if the government consents to such reopening and there is available relief against deportation. See 8 C.F.R. § 1003.2(c)(3)(iii); 8 C.F.R. § 1003.23(b)(4)(iv).

The latest Immigration and Customs Enforcement Memo on prosecutorial discretion by John Morton, June 17, 2011, instructing officials to exercise prosecutorial discretion in a number of situations also behooves the immigration attorney to zealously advise his or her clients of all options notwithstanding INA §243. The ICE Memo instructs that an individual who is removable, but is on low enforcement priority, can ask ICE for supervised release (and can then request employment authorization), deferred action or can seek to reopen with the government’s consent the removal order if there is relief available.

What about a state law that makes it criminal for an unauthorized immigrant to remain in the state? We can argue at this point that the major provisions of the laws of Arizona, Georgia and Indiana have been enjoined as being unconstitutional. Many of these state laws could snare people who may not technically be registered under federal law, but may be allowed to remain in the US by the federal government and even be given employment authorization such as battered spouses who have filed self-petitions under the Violence Against Women Act, U visa applicants (victims of certain crimes ) or TPS applicants. Moreover, while a state may seek to banish the so called individual from its territory, under the federal immigration system, he or she must first be placed in proceedings. While in proceedings, this individual can then potentially apply for relief such as cancellation of removal, and can get employment authorization even while continuing to remain unlawfully present. The author commends readers to David Isaacson’s A PRELIMINARY LOOK AT SOME OF THE CONSTITUTIONAL AND PRACTICAL PROBLEMS WITH ALABAMA’S NEW IMMIGRATION LAW in order to fully understand the contradictions between a state’s immigration law and the federal immigration law.

In closing, Comment 9 to Model Rule 1.2(d) is a golden nugget, which summarizes the delicate balance that the attorney ought to strike when representing a client who may be undocumented but who has potential relief in the future:

Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

(This blog include extracts from How To Walk The Ethical Line – Being Less Stressed Out, by Cyrus D. Mehta, Sam Myers, and Kathleen Campbell Walker, AILA’s Immigration Practice Pointers (2011-12 Edition)).