Saturday, September 28, 2019

Flores: Judge Blocks Trump Administration Plan to Detain Migrant Children - The New York Times

Judge Blocks Trump Administration Plan to Detain Migrant Children - The New York Times

LOS ANGELES — A federal judge on Friday rejected new regulations that would allow the government to hold children and their parents in detention for indefinite periods, one of the Trump administration’s signature efforts to curtail the large number of families arriving from Central America.

Describing the government’s defense of its proposed new policy as “Kafkaesque” in some of its reasoning, Judge Dolly Gee of Federal District Court for the Central District of California said it was up to Congress, not the administration, to supplant a 20-year-old consent decree that requires children to be held in state-licensed facilities and released in most cases within 20 days.

President Trump has repeatedly criticized the “legal loopholes” that he said force the government to engage in what he calls “catch and release” of migrant families who have been arriving, until recently, in record numbers on the southern border.

Under the 1997 consent decree, known as the Flores agreement, the government must seek to expeditiously release children from detention and maintain a number of minimal standards for them in secure detention facilities.

Tuesday, September 24, 2019

Frankel Article: Corporate Hostility to Arbitration (CL&P Blog)

Frankel Article: Corporate Hostility to Arbitration (CL&P Blog)

Richard Frankel of Drexel has written Corporate Hostility to Arbitration, 50 Seton Hall Law Review (forthcoming 2020). Here is the abstract:
In the last 30 years, corporations have aggressively and successfully pushed the Supreme Court to invalidate virtually all state regulation of mandatory arbitration clauses on the ground that the Federal Arbitration Act (FAA) preempts any state law that expresses “hostility” to arbitration. Under current doctrine, the FAA preempts any state law that is premised on the idea that arbitration is inferior to litigation for resolving disputes, or that treats arbitration clauses less favorably than other contracts.

Yet, at the same time corporations decry state-law hostility to arbitration, they frequently express their own hostility to arbitration in the way they draft their own arbitration provisions. By carving out specific claims from arbitration, adopting procedural rules that approximate litigation, or imposing restraints that make it difficult for their consumers and employees to bring disputes in arbitration, corporations have shown that they believe arbitration to be inferior to litigation in multiple ways.

Although scholars have widely debated the Supreme Court’s arbitration jurisprudence, “corporate hostility” to arbitration has gone largely unnoticed. This article examines the various methods by which corporations express hostility to arbitration and argues that this hostility carries significant implications for FAA preemption doctrine. Currently, contract drafters can exempt claims from arbitration because they believe that arbitration is inferior to litigation. But when states seek to regulate arbitration for those same reasons, they are barred from doing so by the FAA. Thus, corporations can exempt claims from arbitration to maximize their self interest, but states cannot exempt claims from arbitration to protect the public interest.

This dichotomy is anti-democratic and results in bad policy. This article proposes that corporate hostility to arbitration shows that not all hostility to arbitration is improper, and that states should have greater freedom to regulate arbitration clauses without violating the FAA.

R. v. The Prime Minister - the Judgment of the Supreme Court of the United Kingdom

The Supreme Court of the United Kingdom has declared unlawful the Prime Minister's "prorogation" (suspension) of Parliament.  It rules that Parliament remains in session. - gwc
R [on the application of Miller] v. The Prime Minister - Judgment of the Supreme Court 9/24/2019
Both cases raise the same four issues, although there is some overlap between the issues:
 ( 1) Is the question of whether the Prime Minister s advice to the Queen was lawful justiciable in a court of law ?
(2 If it is, by what standard is its lawfulness to be judged ?
( 3) By that standard , was it lawful?
(4 ) If it was not, what remedy should the court grant?

Although the United Kingdom does not have a single document entitled The Constitution, it nevertheless possesses a Constitution , established over the course of our history by common law , statutes, conventions and practice . Since it has not been codified, it has developed pragmatically , and remains sufficiently flexible to be capable of further development .Nevertheless , it includes numerous principles of law , which are enforceable by the courts in the same way as other legal principles . In giving them effect, the courts have the responsibility of upholding the values and principles of our constitution and making them effective . It is their particular responsibility to determine the legal limits of the powers conferred on each branch of government, and to decide whether any exercise power has transgressed those limits . The courts cannot shirk that responsibility merely on the ground that the question raised is political in tone or context.

Detained: how the US built the world's largest immigrant detention system

Detained: how the US built the world's largest immigrant detention system

ABA: immigration courts near collapse

Monday, September 23, 2019

Immigration courts irredeemably dysfunctional and on the brink of collapse by Nolan Rappaport

By Immigration Prof

© Getty Images


Less than a week ago, news reports offered the stunning news that the nation's immigration courts had a backlog of one million cases.  Nolan Rappaport on the Hill offers the following unsettling analysis:


"The American Bar Association (ABA) concluded in a recent report on "Reforming the Immigration System" that the immigration courts are facing an existential crisis. They are irredeemably dysfunctional and on the brink of collapse.

The number of cases pending before the immigration courts has increased to unprecedented levels. The backlog and increased wait times for a hearing are negatively impacting the fairness and effectiveness of the immigration system. People with valid persecution claims have to wait years to be granted asylum, and individuals with non-meritorious claims are allowed to remain in the country for lengthy periods of time.
Moreover, judicial independence has been called into question by politicized hiring practices and the adoption of policies that undermine immigration judges’ ability to perform their role as neutral arbitrators."

Saturday, September 21, 2019

Tom Nichols Trump must go
There is no spin, no deflection, no alternative theory of the case that can get around the central fact that President Trump reportedly attempted to use his office for his own gain, and that he put the foreign policy and the national security of the United States at risk while doing so. He ignored his duty as the commander in chief by intentionally trying to place an American citizen in jeopardy with a foreign government. He abandoned his obligations to the Constitution by elevating his own interests over the national interest. By comparison, Watergate was a complicated judgment call.

The Supreme Court Failed Again ~ East Bay Sanctuary ~ immigration Prof Blog

Thursday, September 12, 2019

Expanding rights of "gig" workers California Senate passes Assembly Bill 5

Image result for assembly bill 5
The union--led fight for expanded rights of the non-unionized workers of the "gig economy" has passed a major milestone.  The California Senate has passed and Governor Gavin Newsome said he will sign Assembly Bill 5 which will greatly expand the number of workers treated as employees rather than "independent contractors".  The results will include workers compensation coverage, wage and hour law protections, and perhaps a boost to the unions who seek to represent the workers of  companies like Uber and Lyft.    The measure's key provisions are explained below in the sponsor's statement. - gwc

...The bill would provide that for purposes of the provisions of the Labor Code, the Unemployment Insurance Code, and the wage orders of the Industrial Welfare Commission, a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that [1]the person is free from the control and direction of the hiring entity in connection with the performance of the work, [2] the person performs work that is outside the usual course of the hiring entity’s business, and [3] the person is customarily engaged in an independently established trade, occupation or business. ...

Sotomayor: court indulges Trump rules

Justice Sotomayor warns the Supreme Court is doing “extraordinary” favors for Trump

The Trump administration thinks the court is its personal fixer. The court isn’t doing much to disabuse it of this idea.

Wednesday, September 11, 2019

Supreme Court Stays order blocking Trump anti refugee rule

Two days ago District Judge Jon Tigar issued a nationwide injunction blocking the Trump administration from implementing a rule that barred virtually all asylum applications by people crossing the southern border.  The new Interim Final Rule, issued July 16,  declared ineligible for asylum anyone entering via the southern border who did not apply for asylum in Mexico or other third country. Today the United States Supreme Court - over a strong dissent - has allowed the policy to proceed, staying the order below despite the abruptly issued Rule's plain inconsistency with the Asylum Act 8 USC 1158.
Justice Sonia Sotomayor in Barr v. East Bay Sanctuary explains the operation of the new Rule issued in July:
The Attorney General and Secretary of Homeland Security promulgated the rule at issue here on July 16, 2019. See 84 Fed. Reg. 33829. In effect, the rule forbids almost all Central Americans—even unaccompanied children—to apply for asylum in the United States if they enter or seek to enter through the southern border, unless they were first denied asylum in Mexico or another third country. Id., at 33835, 33840; see also 385 F. Supp. 3d 922, 929–930 (ND Cal. 2019).
The background is described in this AP report.  Justice Sotomayor, joined only by Ruth Ginsburg renounces the Rule in passionate terms:
Once again the Executive Branch has issued a rule that seeks to upend longstanding practices regarding refugees who seek shelter from persecution. Although this Nation has long kept its doors open to refugees—and although the stakes for asylum seekers could not be higher—the Government implemented its rule without first providing the public notice and inviting the public input generally required by law. After several organizations representing immigrants sued to stop the rule from going into effect, a federal district court found that the organizations were likely to prevail and preliminarily enjoined the rule nationwide,
A federal appeals court narrowed the injunction to run only circuit-wide, but denied the Government’s motion for a complete stay. Now the Government asks this Court to intervene and to stay the preliminary decisions below. This is an extraordinary request. Unfortunately, the Court acquiesces.
An Order lifting an injunction is supposed to be granted only when the equities tilt sharply in favor of the party seeking a stay - here the United States government.   That only the two most liberal justices dissented shows that the prospects for reinstating the injunction are dim.  When the issue finally reaches the Supreme Court it will undoubtedly have before it decisions by the two southern border courts: a pro-Trump administration ruling by the conservative Fifth Circuit in New Orleans and the adverse opinion of the Ninth Circuit in San Francisco. - gwc

Uber drivers cannot be compelled to arbitrate OT claims - 3rd Circuit -

Image result for uber logo
The Federal Arbitration Act demands that agreements to arbitrate be enforced but " a provision in § 1 sets an outer limit, providing that “nothing” in the FAA “shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,” [The District] Court ruled that Singh did not fall within the ambit of the residual clause of § 1 because that clause only extends to transportation workers who transport goods, not those who transport passengers. We disagree with this reading. Consistent with our longstanding precedent, we hold that the residual clause of § 1 may extend to a class of transportation workers who transport passengers, so long as they are engaged in interstate commerce or in work so closely related thereto as to be in practical effect part of it." Joseph Greenaway, Judge, U.S. Ct. of Appeals, 3rd Circuit
Uber drivers cannot be compelled to arbitrate OT claims - 3rd Circuit -

In Jaswinder Singh v. Uber Technologies 939 F.3d 210 federal appeals court has ruled that Uber cannot enforce an arbitration clause in a class action lawsuit claiming the company’s New Jersey drivers are misclassified as independent contractors.
The U.S. Court of Appeals for the Third Circuit ruled Wednesday that Uber drivers fall under an exemption to the Federal Arbitration Act for transportation workers engaged in foreign or interstate commerce. The appeals court reversed a U.S. District Court judge who granted Uber’s motion to dismiss the case and compel arbitration.
At issue in the case is Section 1 of the Federal Arbitration Act, which provides that nothing in the FAA shall apply to contracts of employment of seamen, railroad employees or any other class of workers engaged in foreign or interstate commerce.
Lawyers for named plaintiff Jaswinder Singh claimed that, to the extent that he had an agreement with Uber, it fell under the residual clause of Section 1 of the FAA—the “any other class of workers” portion. U.S. District Judge Freda Wolfson ruled that Singh did not fall under the residual clause because that clause only applies to workers who transport goods, not those who transport passengers. But the court of appeals disagreed, holding that the residual clause of Section 1 may extend to a class of transportation workers who transport passengers, as long as they are engaged in interstate commerce or in work closely related to interstate commerce as to be in practical effect part of it.
But because the record is unclear on whether the plaintiff and class are engaged in interstate commerce, the appeals court remanded the case to the District Court for further proceedings.
Singh and the class were represented by Justin Swidler, Matthew Miller and Daniel Horowitz of Swartz Swidler in Cherry Hill, New Jersey.
Uber was represented by Theane Evangelis, Theodore Boutrous Jr., Samuel Eckman and Joshua Lipshutz of Gibson Dunn as well as Paul Lantis and William Simmons of Littler Mendelson. Uber and it’s legal team did not respond to a request for comment.
The New Jersey lawsuit seeks the right of Uber drivers to be paid overtime for working in excess of 40 hours a week, and states that drivers’ expenditures for tolls, gas and mobile phone expenses are an unlawful constructive deduction under New Jersey law. The suit claims Uber drivers are entitled to overtime because they do not have the authority to hire and fire other employees and did not perform work related to management operations that involved the exercise of discretion over matters of importance.

Monday, September 9, 2019

Ankle monitors and informants: How ICE chose the 7 Mississippi food plants to raid

Ankle monitors and informants: How ICE chose the 7 Mississippi food plants to raid 

The human impacts of immigration raids in Mississippi have caught the nation's attention.
Jimmie E. Gates and Alissa Zhu, Mississippi Clarion Ledger offer some insights, based on court documents submitting by the U.S. govbernment to secure search warrants, about how the immigration enforcement operation worked. 
According to the report, over more than a decade, hundreds of undocumented workers across the country told federal officials that they worked at food processing plants in Mississippi. In some instances, immigrants were released from detention with ankle monitors while awaiting removal proceedings. Authorities tracking their GPS coordinates were able to see they were coming and going from Mississippi food processing plants.
Later, hundreds of immigration officiers raided seven Mississippi plants owned by four companies. They are suspected of "willfully and unlawfully employing" undocumented workers, unsealed search warrants say. Workers reported hearing the roar of helicopters and seeing agents round up mostly Latino workers for questioning. Many wept as they waved goodbye to their family and friends being taken away on buses for processing. A total of 680 people were arrested. Of those, about 300 were released the same day, according to U.S. officials. Those who remain in detention are being held in a ICE facility in Louisiana.
As for the employers, no fines or arrests have taken place, though federal officials say investigations into the companies are ongoing.
The raids and arrests have had impacts on the Mississippi communities where the food processing plants are located.  For some pictures, click here.

ICE Arrests 680 at Mississippi Food Processing Plants -ImmigrationProf Blog

IICE Arrests 680 at Mississippi Food Processing Plants - ImmigrationProf Blog

Yesterday, Immigration and Customs Enforcement (ICE) conducted raids in Mississippi.  CNN reported that "It was the first day of school in Morton, Mississippi, Wednesday, and many undocumented parents and their children went together to the first morning drop off, said Elizabeth Iraheta. By the end of the day, some of those children were all alone, she said. . . . . US immigration authorities arrested about 680 undocumented immigrants at seven sites in six different cities in Mississippi on Wednesday. The raids are `believed to be the largest single-state immigration enforcement operation in our nation's history,' said US Attorney for the Southern District of Mississippi Mike Hurst.  Officials declined to provide details about what sites had been targeted, citing what they said was an ongoing criminal investigation. CNN affiliates reported the raids occurred at food processing plants throughout the state."

HAPPENING NOW: In Forrest, Mississippi where one of the raids happened nearby Children of those who were arrested are left alone in the streets crying for help. Strangers and neighbors are taking them to a local gym to be put up for the night. FULL STORY TONIGHT ON @WJTV.
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"JACKSON, Miss. – U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) executed multiple federal criminal search warrants at seven agricultural processing plants across Mississippi Wednesday morning as part of an ongoing HSI worksite enforcement criminal investigation.
In addition to executing federal search warrants and seizing business records pertaining to the ongoing federal criminal investigation, deportation officers with ICE Enforcement and Removal Operations (ERO) in partnership with HSI detained approximately 680 removable aliens who were unlawfully working at the plants.                                                                     
All the unlawfully present foreign nationals arrested Wednesday are being interviewed by ICE staff to record any potential mitigating humanitarian situations. Based on these interviews, and consideration of their criminality and prior immigration history, ICE is determining on a case-by-case basis based on the totality of the circumstances which individuals will be detained and which persons may be released from custody at present. In all cases, all the illegal aliens encountered as part of this operation are either being placed into removal proceedings before the federal immigration courts, and for those who already received due process and have been ordered removed, processed for removal from the U.S.
A 24-hour toll-free hotline is available for family members of those arrested in this operation to address questions about their detention location and status, and the removal process. This hotline operates in English and Spanish; the phone number is 1-855-479-0502. 
This HSI-led operation was conducted in coordination with the U.S. Attorney’s Office for the Southern District of Mississippi, of which U.S. Attorney D. Michael Hurst Jr. will prosecute any resulting federal criminal charges.
HSI is the federal law enforcement agency responsible for upholding the laws established by the 1986 Immigration Reform and Control Act (IRCA), which requires employers to verify the identity and work eligibility of individuals they hire. These laws help protect jobs for U.S. citizens and lawful U.S. residents, eliminate unfair competitive advantages for companies that unlawfully hire an illegal workforce, and strengthen public safety and national security.
Unauthorized workers often use stolen identities of legal U.S. workers, which can profoundly damage for years the identity-theft victim’s credit, medical records and other aspects of their everyday life.
HSI’s worksite enforcement investigators help combat worker exploitation, illegal wages, child labor and other illegal practices. Worksite enforcement investigations often involve additional criminal activity, such as alien smuggling, human trafficking, money laundering, document fraud, worker exploitation and/or substandard wage and working conditions.
In addition to worksite enforcement operations like this one, HSI also uses I-9 audits to create a culture of compliance among employers. In July 2018, ICE announced a two-phase operation under this effort."
Southern Poverty Law Center Attorney Julia Solórzano, with the SPLC’s Immigrant Justice Project, issued the following statement on today's workplace raids in Mississippi: 
“Today’s raids are part of the ongoing war against immigrant families and the communities in which they live. These sorts of raids terrorize workers and their families. What’s more, today’s raids needlessly ripped parents from their children during the first week of school. 

“It is especially sickening that days after immigrants were targeted by a gunman in El Paso, Texas, workers at plants across Mississippi witnessed armed agents descending on their workplace.

“It’s also worth noting that immigration agencies that have repeatedly blamed ‘over capacity’ detention facilities for the horrific treatment of those imprisoned nevertheless detained more than 600 people today. 

“Our attorneys and advocates are closely monitoring the situation and exploring options to assist those impacted.”  

UPDATE (Aug. 9): ABC News reports that several hundred individuals arrested during an immigration roundup across Mississippi earlier this week, leaving children without parents in some cases, have been released, a U.S. Immigration and Customs Enforcement spokesman said.   Young children were seen crying on local news video about being separated from their mothers and fathers.  Children of adults detained in the raids were taken to local elementary schools until they could be reunited with extended family members.  ICE Southern Region Communications Director Bryan Cox defended the agency's handling of the matter, saying as arrests were made, those detained were allowed to make arrangements to have their children picked up and that schools were notified.  Immigration advocates condemned the raids, and focused on the children of those set to be deported.

Judge Tigar Doubles down on National Injunction in East Bay Sanctuary - ImmigrationProf Blog

Judge Tigar Doubles down on National Injunction - ImmigrationProf Blog

Jacqueline Thomsen for reports on big news from the Northern District of California.
This morning, U.S. District Judge Jon Tigar of the Northern District of California reinstated a nationwide injunction blocking the Trump administration’s new asylum restrictions, after the U.S. Court of Appeals for the Ninth Circuit initially limited the order to just the circuit’s geographic bounds.
Judge Tigar wrote that, although there may be circumstances in which a national injunction is inappropriate, the case before him—challenging a new rule that stops asylum seekers who pass through a third country before arriving at the U.S.’s southern border from being granted asylum—merits such an order.
“The question now before the court is whether those harms can be addressed by any relief short of a nationwide injunction. The answer is that they cannot,” Tigar wrote on September 9 in the latest salvo in the East Bay Sanctuary case.
A Ninth Circuit panel had limited the injunction to the geographic boundaries of the Ninth Circuit, but said “the district court retains jurisdiction to further develop the record in support of a preliminary injunction extending beyond the Ninth Circuit.”  Judge Tigar wrote that “the most plausible reading” of the Ninth Circuit’s ruling means he is permitted to fill out the record of the case, and issue a subsequent order on a nationwide injunction as a result.  He said that, if the circuit were to disagree with this order and his interpretation of their ruling, he would issue an indicative ruling saying he would grant the immigration groups’ motion to reinstate the national injunction.
Last month, a Ninth Circuit panel split over the breadth of the national injunction.  Judges Milan Smith and Mark Bennett wrote in the majority opinion that “the nationwide scope of the injunction is not supported by the record as it stands.”
Here are some reactions to the latest injunction:
Melissa Crow, senior supervising attorney at the Southern Poverty Law Center’s Immigrant Justice Project: “This ruling levels the playing field for all the vulnerable individuals and families seeking refuge in the United States. With this decision, regardless of where they cross the border, these people should be able to seek asylum. Sadly, while this ruling removes a major hurdle, far too many obstacles remain, as this administration’s war on asylum-seekers appears to know no bounds.”
ACLU attorney Lee Gelernt: “The court recognized there is grave danger facing asylum-seekers along the entire stretch of the southern border.”
Baher Azmy, Center for Constitutional Rights legal director: “We are gratified the court recognized the reality on the ground, which is that Trump’s asylum ban is affecting thousands of asylum-seekers all across the border —just as it was unlawfully intended to do — and not just at California ports of entry.”

Monday, September 2, 2019

Where Does Affirmative Action Leave Asian-American Students? - NY Times Magazine

Name: Alex Chen, 18.
Education: Yale University, class of 2023.“I believe the existence of affirmative action reflects the countless historical injustices that have led to such a complex situation, and any single person or perspective, much less a short photo caption, can’t possibly capture its nuances. But I absolutely think that our generation’s willingness to discuss the hard topics of race and class and privilege will eventually lead to a satisfactory solution for everybody, even beyond college admissions.”
Despite this annoyingly long lead the article is a very thoughtful discussion of the complex issue of who gets into Harvard, the challenge posed by Edward Blum -  the architect and funder of many successful lawsuits designed to eradicate affirmative action.
I find myself asking in the odd position of skepticism about whether high SAT or other standardized test scores should create any rights at all. - gwc

Where Does Affirmative Action Leave Asian-American Students? - NY Times Magazine

For the purposes of this article, Alex Chen, an 18-year-old senior at the Bronx High School of Science in New York City, is the “typical Asian student.” Alex has a 98 percent average at one of the city’s elite public high schools, scored a 1,580 on the SAT and, as far as he knows, has earned the respect of his teachers. Alex is also the vice president of technology for the Bronx Science chapter of the National Honor Society, the director of graphics and marketing for TeenHacks L.I. (“the first hackathon for teens in Long Island”), a member of the cross-country team, the vice president of the school’s painting club, the president of the Get Your Life Together club (visitors from various businesses come talk to students) and the senator for his homeroom. In his free time, he plays Pokémon and goes on long jogs through Van Cortlandt Park in the Bronx. His parents, Qiao and Su, emigrated from China in the ’90s and worked their way through commuter colleges in Queens. They live along with Alex’s little brother in a modest apartment in outer Queens. In the specific yet ultimately abstracted and perhaps inhuman calculations particular to selective college admissions, Alex is a first-generation (considered a plus), middle-class (minus) Chinese-American (minus, arguably) with two college-educated parents (minus) from a major American city (minus) with aspirations to study either computer science (minus, given all the Asians who want to go into STEM disciplines) or political science (plus).
When I first met him in early August 2018, we struggled to find a time to meet up to talk about his thoughts on affirmative action and its effect on Asian-American students. Deep into the summer vacation before his last year of high school, Alex had been interning in the office of Assemblywoman Yuh-Line Niou while also completing a study on congressional legislators with a professor at New York University. There just was no time.
After Alex canceled our first agreed-upon date, I told him that in addition to writing for The New York Times Magazine, I was also writing a book, ran a small production company and had an 18-month-old daughter. And yet, despite these various jobs (as well as the fact that I wasn’t on summer vacation), I could meet him on any day and at any time for however long he pleased. My flexible schedule wasn’t a favor to him but simply a reflection of the life of a relatively productive adult.
“Well, that’s you,” Alex said, a bit scornfully.
We finally settled on a meeting in the financial district. Alex suggested a Dunkin’ Donuts exactly one door down from his internship office. When I arrived, I saw that it had no tables or booths, just three stools pushed up against the front window. I was hungry and slightly irritated, so I texted him and said I’d meet him at a Cuban lunch counter nearby. He walked through the front door a moment later — thin, with short-cropped hair, a neatly tucked button-up shirt and creaseless pants. He had a look of mild agitation about him, one that never really subsided. We shook hands.