Tag Archive for: immigrants

Cyrus Mehta

Impact of the Overturning of Roe v. Wade on Immigrants

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By Cyrus D. Mehta, Kaitlyn Box*, and Jessica Paszko**

On June 24, 2022, the Supreme Court issued its opinion in Dobbs v. Jackson Women’s Health Organization, overturning the landmark decision Roe v. Wade, and holding that there is no constitutional right to an abortion. Justice Alito, writing for the majority, first held that abortion is not implicitly protected by any constitutional provision, including the Due Process Clause. The opinion further states that although the Due Process Clause protects some rights that are not specifically enumerated in the Constitution, those rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” Because abortion was not a recognized legal right until the latter half of the 20th century, according to the majority, and was until then often punishable as a criminal offense, the court reasons that it cannot fall into the category of activities protected by the Due Process Clause. The opinion also addresses whether the right to obtain an abortion “part of a broader entrenched right that is supported by other precedents”. The Court concludes that overturning Roe would not upset other precedential decisions that involve fundamental rights not specifically mentioned in the Constitution, like Griswold v. Connecticut (contraception), Obergefell v. Hodges (same-sex marriage), and Lawrence v. Texas (same-sex sexual conduct), because abortion involves a unique moral question not implicated in other cases – the destruction of “potential life”. Finally, the Court held that the doctrine of stare decisis does not require the preservation of Roe because this doctrine is not an “inexorable command” and other landmark Supreme Court cases have overturned prior precedential decisions.

On the other hand, according to one commentator, ending the forced sexual and reproductive servitude of black girls and women who were forcibly brought into the country was a critical part of the passage of the 13th and 14th Amendments, which sought to protect them from forced pregnancies and provide them privacy and freedom. The opinion in Dobbs will likely not be the last word as present and future generations of activists will seek to continue to restore women’s rights to privacy and bodily autonomy.

Until then, the Dobbs decision will have a devastating impact on the countless women in the United States who will no longer have access to safe and legal abortions, and the demise of Roe also carries worrying implications for other precedential Supreme Court decisions, including those that concern the rights of immigrants. Though the majority asserted that overturning Roe would not undermine other decisions involving fundamental rights due to the unique moral question posed by the right to abortion, Justice Thomas in his concurring opinion recommended that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.

Plyler v. Doe, which held that children of undocumented immigrants have the right to receive a K-12 education in the United States, escaped Justice Thomas’ mention, but has much in common with decisions like Roe and Obergefell. The Court in Plyler stopped short of calling education a “fundamental right”,  focusing instead on the Equal Protection Clause argument that undocumented children would suffer undue hardship due to circumstances outside their control if they were denied access to an education. According to Justice Burger’s dissenting opinion, once the Court established that undocumented children are not a suspect class and that education is not a fundamental right, the Court’s analysis should have considered whether the legislative classification bore a rational relationship to a legitimate state purpose. Under this rational-basis level of scrutiny, Justice Burger opined that it would not be irrational for a state to conclude that it owes a lesser responsibility to undocumented individuals. He further reasoned that because unlawfully present individuals have no right to be here, the state may reasonably, and constitutionally, elect not to provide them with governmental services at the expenses of those who are lawfully in the state. In the final part of his dissent, Justice Burger remarked at how the majority’s opinion effectively set social policy and impermissibly usurped Congress’ policymaking role.

The idea that Plyler could be the next landmark decision that is threatened is not purely speculative. Governor Greg Abbott of Texas has already indicated that he would like to see Plyler to be revisited in the aftermath of Roe’s demise. On the other hand, Abbott’s attempts to get Plyler overruled will not be a slam dunk even under the Supreme Court’s current composition since providing undocumented children access to public education was not based on substantive due process but equal protection.

In addition to leaving open the possibility for other fundamental rights cases to be overturned, the Court’s decision in Dobbs will also have a disproportionately severe impact on certain immigrant women who need access to an abortion. The decision will undoubtedly cause the most harm to the women who have the least financial resources available for reproductive care. According to some sources, immigrant women who seek abortions are often lower-income and less likely to have medical insurance than U.S. citizens who seek the same care. While no states currently have abortion laws in place that attempt to prosecute residents who travel to another state to seek an abortion, a now-blocked Missouri law would have allowed individuals to sue anyone who assisted a woman in crossing state lines to seek an abortion. If similar state laws follow, a criminal conviction of this type could render non-citizens inadmissible to the United States and consequently ineligible for a host of immigration benefits, including visas and permanent residence, as well as leaving individuals vulnerable to being placed in removal proceedings.

Even where traveling across state lines to obtain an abortion does not carry the possibility of criminal convictions, this option will not be available to incarcerated women, including those in immigration detention facilities. Of the thirteen states that have “trigger laws” in place that immediately banned or restricted abortion upon the overturning of Roe, seven, including Idaho, Oklahoma, South Dakota, Wyoming, Kentucky, Arkansas and Mississippi, have some of the country’s highest rates of incarcerated women. Reports of women in immigration detention facilities being denied access to abortions, or receiving delayed or insufficient reproductive care, were already rampant. After the Court’s decision in Dobbs, it is likely that women with the least freedom to seek reproductive care will suffer even more.

 

Cyrus Mehta

Immigrants Are Not Undesirable Criminals

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During his campaign and after he became president, Trump has unfortunately changed the narrative by linking immigrants, especially undocumented immigrants, to rapists, murderers, terrorists and job stealers. Trump has exploited the crimes committed by a few immigrants to link all of them to criminal activity. The fact that a person may have crossed the border illegally does not make them a criminal with a tendency to commit even more crimes in the United States. While we undoubtedly sympathize with the victims of such crimes, it is morally reprehensible to taint all immigrants with the conduct of a very few. The criminal justice system can effectively punish perpetrators of all crimes, whether they may be immigrants or US citizens.  Most immigrants are hardworking and honest, trying to make a better lives for themselves, while also benefiting the United States. They are also valiantly trying to legalize their status in an immigration system that urgently needs an upgrade. Indeed, a Cato Institute report establishes that immigrants, even undocumented immigrants, commit lesser crimes than native Americans.

Some in the media have latched onto this false narrative to further sensationalize the issue. When I was invited to debate Tucker Carlson on Fox News on March 27, 2017 I accepted believing it is important for an immigration attorney to speak out loudly and boldly, no matter how ruthless the TV host may be.While Carlson may limit the conflation to crimes with undocumented immigrants, this has the tendency to extend to even legal immigrants as exemplified in Trump’s travel ban. Nationals of the countries affected in the ban are people entering the United States legally as students, temporary workers or as refugees,  but they are still considered suspect as the Trump’s travel ban directly links to nationals of Muslim majority countries suspected of terrorism.  This sort of stereotyping is not just false, but it is also extremely dangerous. A few weeks ago, a US citizen killed an Indian engineer who was legally in the United States on an H-1B visa under the false perception that he was a dangerous immigrant. By Carlson’s logic, the immigrant would not have committed a crime if he or she had not been let into the United States in the first place. But how do you determine this in advance as to who will commit a crime in the future? Does this  mean that our entire immigration system has to shut down?  Or do we no longer take in people fleeing persecution to prevent risking one of them or one of their descendants from committing a crime in the future, even though America is known as the beacon of hope for the persecuted? Is there a way to determine whether one born in the United States will be the next Timothy McVeigh or Adam Lanza?

We can only hope that this virulent fever in America breaks soon because it goes against the long cherished notion that America is nation of immigrants.

Watch the clip below:

Cyrus Mehta

History Will Trump Donald

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Donald Trump, the billionaire real estate mogul and GOP Presidential candidate, has called Mexican immigrants rapists and drug dealers who are demoralizing the country. His popularity among a certain section in the Republican party has surged as a result, and Trump continues to stand by his demagogy.

Trump’s latest foray into immigrant scapegoating for political gain is nothing knew. Anti-immigration movements have been around since this nation’s inception, and Trump is following in their footsteps. The good news is that they became irrelevant very quickly, and so will Trump.

Between 1830 and 1860, when there was virtually unrestricted immigration, 4.5 million immigrants arrived into the United States. Amongst them were Irish and Germans who were Catholic, and there was an over simplified view that Catholics would never be good citizens as they were beholden to the Pope and subject to the orders from the church. Samuel Morse, well known as the inventor of the telegraph and Morse code, was also a nutty xenophobe, who warned:

 

How is it possible that foreign turbulence imported by shiploads, that riot and ignorance in hundreds of thousands of human priest-controlled machines should suddenly be thrown into our society and not produce turbulence and excess? Can one throw mud into pure water and not disturb its clearness?

TheKnow Nothing movement emerged in the 1850s with the objective of preventing the Irish from participating in national affairs. One of the pamphlets of the Know Nothing party warned:

It is notorious that the grossest frauds have been practiced on our naturalization laws, and that thousands and tens of thousands have every year deposited votes in the ballot box, who could not only not read them, and knew nothing of the nature of the business in which they were engaged, but who had not been six months in the country, and, in many cases, hardly six days.

After the Irish got assimilated, Jews and Italians in the latter part of the 19th century became the targets of accusations that they could never become 100 percent Americans. A leading sociologist of his time Edward Ross stated that Jews were “the polar opposite of our pioneer breed. Undersized and weak muscled, they shun bodily activity and are exceedingly sensitive to pain.” Regarding Italians, Ross noted that they “possess a distressing frequency of low foreheads, open mouths, weak chins, poor features, skewed faces, small or knobby crania and backless heads.”

Trump’s remarksover 120 years later about Mexicans are not too different, and in the same vein as the anti-immigrant demagogues that preceded him:

“When Mexico sends its people, they’re not sending the best,” Trump said last month when he announced that he was seeking the Republican nomination. “They’re sending people that have lots of problems, and they’re bringing those problems. They’re bringing drugs. They’re bringing crime. They’re rapists and some, I assume, are good people, but I speak to border guards, and they’re telling us what we’re getting.”

The good news is that many corporations, including Macy’s, NBC, ESPN and two celebrity chefs, have severed business ties with the real estate magnate. While Trump’s popularity may grow with a certain segment within the Republican party, he and his party should always remember the drubbing that Mitt Romney got in the 2012 Presidential elections when he advocated that immigrants “self deport” from the United States. Trump will viciously sue for breach of contract, and it is hoped that courts will be sympathetic to possible defenses that the contracts may have became impossible to follow through by the other party caused by Trump’s inflammatory remarks. Any business association with Trump will cause embarrassment to the other contracting party resulting in business losses, it can be argued.

Trump’s hypocrisy also comes through loud and clear since many of his properties have been built on the backs of the hard and honest labor of immigrants, and the current construction of a luxury hotel in Washington DC may have undocumented immigrants, according to a Washington Post article.  In response to whether he has hired undocumented workers, Trump cavalierly and insensitively said in a CNN interview, “I can’t guarantee it. … I wish they’d give us the names. We would get rid of them immediately.” This statement is legally problematic. An employer verifies all employees on Form I-9, and the USCIS Handbook, M-274, provides clear instructions to employers.  If the documents that were submitted by the new hire are facially valid, an employer does not have a clear basis to terminate a worker soley based on a tip that the worker is not legally in the country.

Indeed, the Office of Special Counsel for Immigration-Related Unfair Practices at the Department of Justice remains especially vigilant against employers who may indulge in discriminatory practices. In an OSC letter to an employer dated October 14, 2011, the OSC provided the following caution regarding employers responding to anonymous tips on an employee’s immigration status:

OSC cautions employers to respond to anonymous tips with restraint because these tips may be based, in whole or in part, on such factors an individual’s presumed citizenship status, national origin, accent, or cultural customs. Such factors are not relevant in determining whether an individual is authorized to work in the United States. In addition, whether an employer should respond to an anonymous tip depends upon the specific facts at hand, including the credibility and substantive nature of the information provided.

An employer is only under a duty to investigate further if it knows or has knowledge that would lead a reasonable person to believe that an individual is not authorized to work in the United States, and a clear example would be if the employer received specific information from the government that certain employees have committed document fraud. See Mester Mfg. Co. v. INS, 879 F.2d 561 (9th Cir. 1989); New El Rey Sausage v. INS, 925 F.2d 1153 (9thCir. 1991). By that token, a mismatch letter from the Social Security Administration that an employee’s name and number may not match should not give rise to a conclusion that the employee is not authorized to work in the United States as the mismatch may be caused for a number of other reasons. The same reasoning should apply to an anonymous tip that lacks credibility.

Probably Trump does not care to know these nuances, but he should if he dismisses workers on tips and suspicions especially if the documents verified on the Form I-9 are bona fide, or his company may be penalized by OSC for unfair immigration related employment practices. This would further damage his party’s credibility with Hispanic and new American voters if not already damaged, as Trump shared the podium with Sheriff Joe Arpaio who has a federal conviction for racial profiling.

Like all the other anti-immigrant personalities and movements who have come before him, Trump too will become irrelevant and will be consigned to the trash bin of history if he continues to indulge in demagogy against Mexican immigrants. Even if Trump tries to justify his anti-immigrant remarks by linking immigrants to crime, these unfortunate incidents are isolated when compared to crimes perpetrated by American citizens. Indeed, immigrants tend to have lower crime rates than the general population.  Trump has been losing business, and his towers if still emblazoned with his name will also embarrass, and will probably soon be viewed in the same way like other symbols that are now despised such as the Confederate flag.

Cyrus Mehta

EBOLA AND INADMISSIBILITY

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By Cyrus D. Mehta and David A. Isaacson

The United States has started Ebola screenings at 5 major airports.  Will these screenings really be effective, or are they being implemented by the administration to demonstrate that it is doing something to assuage public fears?  The administration has also been criticized by Republican leaders who are pushing to restrict, if not completely block off, air travel from West Africa. The tragic death of Thomas Duncan in Dallas from Ebola who had flown into the United States from Liberia has further exacerbated these fears. 

While the airport screenings would apply to all travelers from affected West African countries, including U.S. citizens, non-citizens would certainly be more vulnerable. The fears stemming from the Ebola epidemic are redolent of an earlier time when immigrants who travelled to the shores of the United States were processed at Ellis Island and excluded for a host of diseases, notably including the eye infection trachoma. A Marine General recently warned about hordes of Ebola infected immigrants running for the U.S. border, stoking similar fears today. Anti-immigrant groups are using Ebola, along with ISIS, to further their argument that immigrants are dangerous to the United States, and several Republican politicians including former Massachusetts Senator and current New Hampshire Senate candidate Scott Brown, North Carolina Senate candidate Thom Tillis, and Senator Rand Paul, have cited Ebola to support increased border security along the U.S.-Mexico border. 
Pursuant to section 212(a)(1)(A)(i) of the Immigration and Nationality Act (INA), aliens who are determined to have a communicable disease of public health significance are ineligible to receive visas and ineligible to be admitted in the United States. By regulation, under 42 CFR 34.2, the term “communicable disease of public health significance” includes “quarantinable communicable diseases as listed in a Presidential Executive Order,” a list which has included Ebola and other viral hemorrhagic fevers since President George W. Bush issued Executive Order 13295 in 2003. Under the authority of INA section 232, 8 U.S.C. 1222, aliens arriving in the United States may be subjected to detention and physical and mental examination to determine whether they are afflicted with a condition that would render them inadmissible, such as Ebola. 
Interestingly, however, under INA 232(b) and 42 CFR 34.8, an applicant for admission who was suspected of having Ebola and found inadmissible on that basis, who disputed the finding, could appeal to a board of medical officers. Presumably, even if one has been quarantined after showing signs of being infected but has recovered, he or she ought to be admitted into the United States.  And since INA §212(a)(1) is not among the grounds which can be a basis for expedited removal under INA §235, 8 U.S.C. §1225, this would presumably all take place, even for a nonimmigrant, in the context of regular removal proceedings before an Immigration Judge, unless DHS felt it could argue with a straight face that the nonimmigrant also fell under INA §212(a)(6)(C) or §212(a)(7) and was thus amenable to expedited removal.  The nonimmigrant might, for example, be said to have lied to a consular officer or DHS officer about their illness and thus become inadmissible under INA §212(a)(6)(C)(i). 
A Lawful Permanent Resident (LPR), on the other hand, at least if returning from a trip of less than 180 days and not having committed any crimes or taken any other actions which would otherwise cause them to be treated as an applicant for admission, would not be regarding as seeking admission to the United States, pursuant to INA section 101(a)(13)(C), 8 U.S.C. §1101(13)(C). That is, the LPR would be considered rather as if he or she had never left the United States at all, because under section 101(a)(13)(C), becoming medically inadmissible under section 212(a)(1) doesn’t cause an LPR to be regarded as seeking admission in the way that certain criminal conduct does. So the LPR would be allowed in, if perhaps under quarantine, not necessarily because he or she were admissible but because admissibility is irrelevant for someone who is not an applicant for admission. There does not appear to be any provision in INA section 237, regarding deportability, which would relate to those who become afflicted with contagious diseases after already having been admitted.
An LPR who had been out of the United States for more than 180 days could potentially be in a more troubling situation. Under INA §101(a)(13)(C)(ii), an LPR who “has been absent from the United States for a continuous period in excess of 180 days” is not entitled to the statutory protection against being regarding as seeking admission, so such an LPR could be found inadmissible under INA 212(a)(1)(A)(i) if infected with Ebola. And although a waiver of such inadmissibility is available pursuant to section 212(g)(1) of the INA, that section requires for a waiver of 212(a)(1)(A)(i) inadmissibility that the waiver applicant have a qualifying relative of one of various sorts, unless he or she is a VAWA self-petitioner.  So an LPR absent from the United States for more than 180 days who does not have a spouse, parent (if the LPR is unmarried), son, or daughter who is either a U.S. citizen, or an LPR, or someone who has been issued an immigrant visa, might not be allowed back into the United States after being infected with Ebola, having become an inadmissible applicant for admission and being ineligible for a 212(g)(1) waiver.  
We wonder whether such a loss of LPR status due to an infection would be constitutional, but we know that according to the Supreme Court, long-term absences from the United States can strip returning residents of some of their constitutional protections. The regrettable decision in Shaughnessy v. Mezei, 345 U.S. 2006 (1953), which upheld the refusal to admit a returning resident without a hearing and his resulting indefinite detention on Ellis Island, has never been overturned (though its practical effect with regard to the permissible length of detention under current statutes was limited by Clark v. Martinez, 543 U.S. 371 (2005)), and Mr. Mezei had lived in the U.S., apparently lawfully although before the INA of 1952 was enacted and the modern LPR status created, for many years before his 19-month absence. An LPR who is absent from the United States for more than 180 days and becomes infected with Ebola in the meantime may be at risk of becoming the modern Mezei. At the very least, however, the government should be held to the burden of showing such an LPR’s alleged medical inadmissibility by clear, convincing, and unequivocal evidence, as in Woodby v. INS, 385 U.S. 276 (1966), just as LPRs alleged to be inadmissible on other bases have been found entitled to the protection of the Woodby standard in such cases as Ward v. Holder, 733 F.3d 601 (6th Cir. 2013). (The BIA in Matter of Rivens, 25 I&N Dec. 623 (BIA 2011), has acknowledged that clear and convincing evidence is required to declare an LPR an applicant for admission under INA §101(a)(13)(C), although it reserved judgment on the question whether there is a difference for these purposes between clear and convincing evidence as mentioned in INA §240(c)(3)(A) and clear, unequivocal and convincing evidence as mentioned in Woodby.)

As a practical matter, it is unlikely that any non-citizen found to be infected with Ebola would be turned away on the next flight home, or even paroled into the US for a removal proceeding, as this would expose others to the Ebola virus.  He or she would be quarantined in a hospital and treated in the United States. If this person fully recovers, he or she should be found admissible.  Otherwise, this person will unfortunately under the current state of medical advances in the treatment of Ebola most likely not be alive.
While the United States should not be nonchalant about the spread of deadly infectious diseases such as Ebola, the question is whether screenings at airports are the right way to deal with the problem? Ebola can incubate in a person for up to 21 days before an infected person shows symptoms, as was the case with Mr. Duncan. It has recently come to light that Mr. Duncan’s treatment was less than satisfactory as he was discharged from the hospital when he had a high fever.  There are very few passengers who fly into the United States each day from the three countries that are at the epicenter of the Ebola epidemic – Liberia, Sierra Leone and Guinea. Blocking off flights from these countries, due to political grandstanding, will hurt these countries’ economies even further, and will have an adverse impact on trade and investment. This will further hinder their efforts to stem Ebola, and one way to stem an epidemic is to keep people working and normal. In addition, perceived fears about who has Ebola can result in racial profiling of people of certain nationalities, resulting in wrongful denial of visas or admission into the United States. 
As a recent editorial in the Washington Post aptly stated, “The answer to Ebola is fighting it there, at the source, not at the U.S. border. No one is protected when a public health emergency is used for political grandstanding.” Centers for Disease Control and Prevention Director Thomas Frieden sensibly told reporters, “Though we might wish we can seal ourselves off from the world, there are Americans who have the right of return and many other people that have the right to enter this country.”  As The Economist noted in its recent article on the topic that Dr. Frieden and Dr. Anthony Fauci, head of the infectious diseases component of the National Institutes of Health, have explained, “quarantining West Africa would be unwise.  It would weaken governments, trap Americans and spur travellers to move in roundabout ways that make them harder to track.” If the administration believes that screening those who arrive in the United States for Ebola symptoms may be a helpful component of a broader anti-Ebola strategy, it should not taken too far. We must also be careful not to exclude from the United States people who show no real signs of being infected, and accord those who do appear to have been infected full due process to either contest or overcome inadmissibility.

Cyrus Mehta

Immigrant Power: Naturalized American Wins Boston Marathon

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Today is a day to celebrate. One year after the devastating bombings at the Boston Marathon, Meb Keflezighi won the Boston marathon. Keflezighi is a naturalized American. “I’m blessed to be an American and God bless America and God bless Boston for this special day,” Keflezighi said.

Read more here: http://www.star-telegram.com/2014/04/21/5753571/american-meb-keflezighi-wins-boston.html#storylink=cpy

This victory resonates much stronger as it comes one year after the horrific bombs resulted in 3 deaths and over 260 injured. The surviving bombing suspect, Dzhokar Tsarnaev, is also a naturalized American. His brother, Tamerlan Tsarnaev, who got killed in the shootout last year, unsuccessfully tried to naturalize.

In the immediate aftermath of last year’s bombings, Senator Grassley cynically attempted to tie the Boston marathon attacks to immigration reform. “We appreciate this opportunity to talk about immigration reform in light of all that has been happening in Massachusetts, ” said Senator Grassley. Fortunately, the Senate immigration reform bill, S. 744, still got passed, but it included provisions that would make it more difficult for people to get registered provisional status depending on their country of origin as a result of additional security screening,  and another provision would lead to the revocation of asylum or refugee status if the person visited his or her country of persecution without good cause.

Today, after Keflezighi’s spectacular win, against all odds, no one can and should link immigrants to terrorism. Most immigrants are like Keflezighi, who aspire success for themselves and their families. This is the story of immigration, which is also an Americans story, told over and over again.

Even after the 9/11 attacks, and despite the unfortunate profiling of immigrants from certain countries in the immediate aftermath, immigrants still won. Although  immigration benefits, including obtaining a green card through a marriage with a US citizen, are now viewed through the prism of national security, the immigration system was never radically altered. There was no diminishing of the already meager quotas, and immigrants still came and continue to come to America to make it richer and more diverse.

In this context, Keflezighi’s win is most powerful. An American, who was born in Eritrea,  has won the Boston marathon after Lisa Larsen Weidenbach won in 1985 and Greg Meyer in 1983. While an immigrant has won for America today, millions of  immigrants, through their achievements big and small, win for America all the time.

The urgency to reform our broken immigration system is felt more so today when we can be attracting many more Mebs who will not only excel in sports, but also in scientific achievements and creating innovative companies.  The marathon began last year when the Senate deliberated on and passed a comprehensive immigration reform bill. When will the House joins the race to reach the finishing line and help us all win big time for America?