When Will You Personally Know an Immigrant Affected by New Enforcement Regime?

Someone should create one of those “seven degrees of separation” rules with regard to immigrants—that is, an indication of how many close friend-or-family ties away each person in the U.S. is from someone whose run-in with immigration authorities has them thinking, “What?! Not him/her! Is that really legal?”

Such exclamations and protestations have been common in many recent deportations from the United States. Even people who think mass removal is a good idea in general often want to carve out exceptions when they realize it’s going to be applied to a friend or long-time community member.

For instance, The New York Times ran a story called “He’s a Local Pillar in a Trump Town. Now He Could Be Deported.” It described how a town in which the majority voted for Trump was shocked when the manager of a local Mexican restaurant was arrested for being undocumented.

The article quoted one town resident as saying, “I think people need to do things the right way, follow the rules and obey the laws, and I firmly believe in that . . . But in the case of Carlos, I think he may have done more for the people here than this place has ever given him. I think it’s absolutely terrible that he could be taken away.”

For people within my own circle, that “not him” moment came when news surfaced about our long-ago high school theater director, Ruben Van Kempen—who came to the U.S. from Holland the year that most of my classmates were born—being refused Social Security retirement benefits because “The Department of Homeland Security is unable to verify the immigrant document you submitted as evidence of your lawful alien status.”

That’s bureaucratic error piled onto bureaucratic error—not only were the records missing, but Van Kempen had become a U.S. citizen decades ago, meaning that “lawful alien” is no longer the appropriate way to describe him. To suggest that he’s NOT lawful means that he’s undocumented, which is of course grounds for deportation. But fixing that error should be easy, right?

Not in the current harsh immigration enforcement regime. Van Kempen’s case turned into a nightmare of calls to Social Security and the Department of Homeland Security, neither of which agencies would offer help or answer his questions—until there was public outcry and his Congressional Representative stepped in and started asking questions.

But as Van Kempen told the Seattle Times, “I would still be considered an alien in my own country, and my file would still be sitting there buried, if a friend hadn’t thought to contact the Seattle Times . . . But your newspaper can’t profile every immigrant with a problem. That leaves me very unsettled.”

GOP Candidate Greg Gianforte Cited for Misdemeanor Assault on the Eve of Montana’s Special Election

On May 24, 2017, the Gallatin County Sheriff cited Republican congressional candidate Greg Gianforte with misdemeanor assault. (Read the press release.) The citation followed an incident at the GOP candidate’s campaign headquarters in Bozeman, Montana in which Gianforte allegedly attacked Guardian reporter Ben Jacobs. According to Jacobs, Gianforte “body slammed” him after becoming irritated by a question about the Republicans’ health care bill. A Fox News reporter who witnessed the episode said Gianforte grabbed Jacobs by the neck and slammed him to the grounds. Gianforte’s spokesperson issued a statement that portrayed Jacobs as the instigator of the scuffle.

(See the Guardian’s article about the alleged assault, which includes an audio recording of the incident.)

After conducting an investigation, the Gallatin County Sheriff’s Office concluded there was probable cause to believe Gianforte was guilty of misdemeanor assault. Gianforte must appear in court for the citation between now and June 7, 2017. If convicted, Gianforte faces up to six months in jail and/or a maximum $500 in fines. (Mont. Code Ann. § 45-5-201 (2017).)

Montana voters go to the polls today—May 25, 2017—to decide who will fill the House of Representatives seat left vacant by former Congressman Ryan Zinke’s appointment as U.S. Interior Secretary. It’s unclear how Gianforte’s last-minute run-in with the law might affect his chances of prevailing over Democratic candidate Rob Quist in the close special election contest.

Wondering What These ICE “Check-Ins” Are That Are Getting People Deported?

To read the press of late, you might think that every undocumented immigrant in the country regularly checks into an office of Immigration and Customs Enforcement (ICE). The news aspect of this is that such check-ins are increasingly leading to the person’s deportation (removal) from the United States.

Anyone following the news reports has probably seen statements like these:

  • “In cities like New York and Baltimore, fear of ICE check-ins—which once felt customary for non-violent undocumented immigrants—are now causing waves of apprehension.” (The Chicagoist, April 18, 2017.)
  • “. . . numerous faith-based groups, immigration activists . . . and local politicians rallied in support of Ragbir during his “check-in” with ICE . . . What had been fairly routine in past years now seemed ominous. Ragbir, like dozens of others every day, did not know when he entered the Lower Manhattan building if he would see his family again.” (The Villager, March 27, 2017.)
  • “Immigrants—many of whom have lived and worked in the country for decades—have been arrested at home, at work, and at routine check-ins with ICE officials.” (Mother Jones, March 14, 2017.)

All these reports do a good job at conveying the fact that something that was once routine is now a frightening gamble and often a direct pathway to departure from friends, family, and job.

What they don’t convey as well is that the “routine” aspect applies only to a limited number of individuals; in some ways, the cream of the crop. Most of them are people who happened to have been caught up in the immigration system in the past and were specifically and individually deemed low priorities for deportation.

First, a bit of history. Immigration enforcement authorities in this country have rarely if ever received the amount of funding from Congress they’d like. So, they use “prosecutorial discretion” to pick and choose who to try to deport.

Past administrations focused on removing people who had criminal records or presented security risks. Lowest on the priority list were productive members of society who had lived here for a long time with no criminal records and who had family, community, church, employment, and other ties.

Deciding who is and who isn’t a high priority is not a casually made decision. In many cases, an undocumented immigrants who got arrested by ICE had to  supply extensive documentary evidence of their U.S. ties and good character before ICE would agree to stop pressing forward with their case.

If successful, the undocumented person didn’t obtain the same rights as, say, a green card holder. They were put into a sort of limbo status. Efforts to remove them were put on hold, on the condition that they continue to keep up their high standards of behavior and check in with ICE on an annual basis. The threat of removal is and was always there.

So, it’s only minority of undocumented immigrants in the U.S. who are required to check in with ICE. For Americans who advocate the deportation of every last immigrant in the U.S., the natural conclusion is, “Well, arresting them at their check-ins is at least a starting point.”

But immigration advocates point out the absurdity of Trump claiming that his administration would focus on deporting “bad hombres,” then turning around and deporting the people lowest on the enforcement priority list–the people who were already known to the authorities, and being tracked and monitored. For now, anyway. Because, as John Amaya, former deputy chief of staff at ICE under President Obama, told WNYC News, “I don’t think they want to be detaining individuals–bringing them in during the regular check-ins only to detain them and remove them–because then no one’s going to be reporting. . . It would be a huge burden, and I think that’s why we want to make sure people do report and trust law enforcement.”

Undocumented Parents in U.S. Face Reality of Possible Separation

One of the more popular new articles on Nolo’s website is called “Arrest by ICE: How Can I Arrange to Protect My Child in the Event of Deportation?

The reason is obvious: Statements and order by Trump Administration officials express hostility toward the entire U.S. undocumented population, and recent actions by officers of Immigration and Customs Enforcement (ICE) indicate that it has wasted no time in acting upon this new mandate.

By way of background, the Obama administration also deported large numbers of undocumented immigrants–so many that President Obama was dubbed “Deporter-in-Chief” by immigration advocates.

But it also sought to conserve ICE resources by setting clear priorities: Undocumented immigrants with close family and community ties were to be largely left alone, so that ICE’s limited energies could be directed toward people who had committed crimes or were deemed to be security risks.

That set of priorities, and the predictability that came with it, is essentially gone. Thus we hear news reports of, for example:

  • U.S. citizen children watching as their mother, who has lived in the U.S. for 21 years, is taken away in an ICE van.
  • Deportation of another mother of U.S. citizen children, in the face of Mexican government protests that she had no criminal record and the action thus violated U.S. norms for deportation.
  • Deportation of a young man who was under the protection of Deferred Action for Childhood Arrivals (DACA) and detention of another DACA-holding young man.
  • Arrest of a young undocumented woman who spoke out publicly about the raids that picked up her father and brother.

Some have wondered whether the media is highlighting the most dramatic cases and fomenting fear, The Washington Post ran the numbers, however, and found that arrests of noncriminal undocumented persons have doubled under Trump.

Undocumented parents of U.S. citizen children would do well to at least discuss what their emergency plan is and, as the Nolo article explains, “make specific arrangements to ensure their children will be cared for in the event of deportation.”

Seventh Circuit Rules: Sexual Orientation Discrimination Illegal Under Title VII

Earlier this week, the U.S. Court of Appeals for the Seventh Circuit became the highest court in the country to rule that sexual orientation discrimination is illegal under Title VII of the Civil Rights Act of 1964. While Title VII does not explicitly include sexual orientation as a protected class, the court held that discriminating on the basis of sexual preference is a form of gender stereotyping that qualifies as illegal “sex” (or gender-based) discrimination.

Title VII has long prohibited employers with 15 or more employees from discriminating on the basis of certain characteristics, such as sex. Over the years, some courts have expanded the definition of what qualifies as sex discrimination. For example, the Supreme Court has held that same-sex harassment is illegal (a man harassing another man, or a woman harassing another woman).  And some federal circuit and district courts have held that discrimination based on gender stereotypes—such as a woman not being feminine enough or a man being too effeminate—qualifies as illegal sex discrimination.

Based on these legal precedents, the Equal Employment Opportunity Commission (EEOC) has started to pursue claims against employers for discriminating against gay and lesbian employees. However, the EEOC’s interpretation is not authoritative, and not all courts agree that sexual orientation discrimination is prohibited by Title VII.

The U.S. Court of Appeals for the Seventh Circuit recently sided with the EEOC, holding that sexual orientation discrimination is a form of illegal sex discrimination until Title VII. This decision is contrary to the recent holdings of the Eleventh and Second Circuits, which decided that sexual orientation discrimination is not illegal under Title VII. As a result, there is now a split of authority among federal appeals courts—which could mean that the issue will make its way up to the Supreme Court.

Several states and cities already expressly prohibit sexual orientation discrimination. To learn more, see our state articles on employment discrimination.