How Jeff Sessions is Quietly Transforming Immigration Law to Promote His Anti-Immigrant Agenda

By Samantha Kulhanek

Associate Editor, Vol. 24

Seal_of_the_Executive_Office_for_Immigration_ReviewThe Attorney General’s authority to refer Board of Immigration Appeals (“BIA”) decisions to himself for review was established via regulation in 1940,[1] and yet this power appears to be receiving more attention today than it ever has.[2] The appointment of Jeff Sessions as Attorney General prompted a string of these unique reviews,[3] in which Sessions has attempted to profoundly alter the way immigration courts interpret certain provisions of the Immigration & Nationality Act (“INA”).

The most publicized example of Sessions’s exercise of this referral power thus far has been his decision in Matter of A-B-, where he attempted to effectively narrow the circumstances in which individuals fleeing gang violence or domestic abuse may receive asylum in the U.S.[4] However, some of Sessions’s other decisions resulting from his use of the referral power have received relatively little attention, and yet may have massive consequences for the immigration system. Three decisions in particular have attacked the discretion of immigration judges and threaten to interfere with their judicial independence and how they handle their dockets.

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Countering Violent Extremism Under the Trump Administration: The True Focus is Minority Communities, Not Domestic Extremism

By Mackenzie Walz

Associate Editor, Vol. 24

PF_17.07.26_MuslimAmericans_lede_640x320Through the Homeland Security Act of 2002, Congress established the prevention of domestic terrorist attacks as one of the Department of Homeland Security’s primary missions and appropriated ten million dollars “for a countering violent extremism (CVE) initiative to help states and local communities” combat these threats.[1] Pursuant to the Act, in 2011 the Obama Administration created and implemented the “first national strategy” to prevent domestic violent extremism, entitled “Empowering Local Partners to Prevent Violent Extremism in the United States.”[2] Taking a community-based approach, the program was designed to distribute federal funds to local organizations – educational institutions, non-profits, or law enforcement agencies – which would provide community members with the requisite resources and education to identify signs of extremist radicalization.[3] The ultimate goal was for community members and local leaders to develop relationships of trust through this engagement, which would empower community members, once educated, to report any identified signs of extremism.[4]

While the program was designed to combat all types of violent extremism, in operation and effect it targeted Muslim-American communities.[5] Instead of building relationships of trust between community members and these local leaders, as it was intended to do, it bred mistrust, as the program in some communities “appeared to be doubling as a means of surveillance.”[6] This mistrust made some members of the Muslim-American community hesitant to reach out to law enforcement officers to report signs of radicalization,[7] rendering the outreach program less effective.

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Department of Education Reopens Anti-Discrimination Case, Sparks Controversy

By Rose Lapp

Associate Editor, Volume 24

NR09WaksmanInstitute3254_pgIn 2011, The Zionist Organization of America filed a religious discrimination claim against Rutgers University with the Department of Education Office of Civil Rights (“OCR”). The complaint had three claims. One of these claims, the one being addressed by the Department of Education and by this piece, arose out of an event held on campus by a pro-Palestinian group.[1] Allegedly, there was originally free admission to the event, but the organizers began charging admission “only after [they] observed ‘150 Zionists’ who ‘just showed up.’”[2]

Under Title VI of the Civil Rights Act of 1964, OCR has jurisdiction over discrimination on the basis of race, color and national origin.[3] Under Title IX of the Educational Amendments of 1972, the office has jurisdiction over sex discrimination claims.[4] Section 504 of the Rehabilitation Act of 1973 and the Age Discrimination Act of 1975 gives OCR jurisdiction over discrimination on the basis of disability and discrimination on the basis of age, respectively.[5] The office does not, however, have jurisdiction over religious discrimination claims.

In 2014, on the grounds that there was insufficient evidence of discrimination on the basis of national origin, the Department of Education closed the case.[6] However, now four years later, Kenneth Marcus, the current Assistant Secretary for the Office of Civil Rights at the Department of Education, has reopened the case.[7] He has indicated that he will reexamine the complaint as “possible discrimination against an ethnic group,”[8] and has expanded the definition of anti-Semitism in the OCR context to a “working definition” that is used in other government agencies.[9] This definition includes “denying the Jewish people their right to self-determination” and “applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.”[10] These changes will likely have serious consequences for discrimination claims brought by Jewish students.

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Trump’s Efforts to Deport People Back to “Sh**hole” Countries Stalled by Equal Protection Clause

By Kerry Martin

Associate Editor, Vol. 24

TPSHow racist can the President of the United States be in determining immigration policy before he violates the Equal Protection Clause? A lot depends on who the target is—and with recipients of temporary protected status, Trump may have picked on the wrong people.

Donald Trump announced his candidacy with anti-Latino animus (“When Mexico sends its people…”)[1] and has not backed down since entering the White House. In response to allegations of crime by Central American immigrants on Long Island, President Trump remarked: “They come from Central America. They’re tougher than any people you’ve ever met. They’re killing and raping everybody out there.”[2] Of Haitians, Trump said they “all have AIDS”[3] and asked, “why do we need more Haitians?”[4] And in response to an immigration proposal that would have included protections for Salvadorans, Haitians, and some Africans, Trump inquired, “Why are we having all these people from shithole countries come here?”[5]

This racial animus seems inextricable from every immigration policy decision made by the Trump Administration, from ramping up internal enforcement and border protection, to pushing for legislation that would curb “chain migration” and fund a border wall. But it has proven difficult, at least for purposes of stating a legal claim, to tie these broad-sweeping policy choices to Trump’s racist statements, even if “[e]veryone knows”[6] that the two are related.

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Do Indigent and Incarcerated Women Have a Real Right to Reproductive Justice?

By Hira Baig
Associate Editor, Volume 23

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Reproductive justice is not just concerned with women having access to the healthcare they need, it is also concerned with the disparate impact caused by restrictions on reproductive healthcare. Historically, the more restrictions the Court allows on abortion, the more challenging it becomes for indigent women, women of color, and incarcerated women to get the healthcare they need. In order to achieve reproductive justice, scholars and advocates alike ought to think of a comprehensive way to help all women access the reproductive healthcare they need before, during, and even after pregnancy.

Currently, the doctrine surrounding reproductive healthcare, primarily abortion, does not account for women’s social contexts and allows restrictions that keep minority and indigent women from enjoying equal protection of the laws. It comes as no surprise that indigent women face severe restrictions when trying to access abortion. Incarcerated women, however, face even greater hurdles.

Today, prisons and jails in the United States confine approximately 206,000 women.[1] Approximately 6-10% of women are already pregnant when they enter a prison or jail.[2] Doctor visits for pregnant women in prison are infrequent, with only 54% of women who reported being pregnant in state prisons receiving pregnancy care.[3]

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The End of Mass Incarceration: A Blueprint for Transformative Change

By Rasheed Stewart
Associate Editor, Vol. 23

He sued the Philadelphia Police Department over 75 times.[1]  As a career civil rights and criminal defense attorney he routinely represented individuals subjected to the oppressive forces of racism pervading law enforcement and the criminal justice system.[2] His nationally acclaimed representation of arrested protestors involved with the “Black Lives Matter” movement solidified his reputation among black and brown people as an authentic, hard-nosed movement lawyer.[3]  And now, as Philadelphia’s District Attorney, Larry Krasner has managed to put forth a radical, yet replicable platform for ending mass incarceration.

Within three months, Krasner has issued several of the most transformative policies that any prosecutor in U.S. history has dared to even imagine.  Rather unsurprisingly, Krasner’s new policies have quickly managed to enrage union leaders of the Philadelphia Fraternal Order of Police,[4] while simultaneously galvanizing influential civil rights activists like Shaun King, in supporting his vision for systemic change.[5]  To demonstrate his unrelenting approach to transformative change, Krasner has hit the ground running with a flurry of noteworthy edicts.  First, to “broadly reorganize the office’s structure and implement cultural change,” Krasner dismissed 31 members of the office just three days into office, including trial attorneys and several supervisor level staff members.[6]  Second, in responding to a judge’s order, Krasner publicly released a secret list of current and former police officers whom prosecutors have sought to keep off the witness stand after a review determined they had a long history of lying, racial bias, or brutality.[7]  Moreover, Krasner’s ‘Do Not Call’ list now legitimately sends the foreboding message that cronyism between police officers and ADA’s have no place in an ethically transformed criminal justice system.

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The Color of Blight: Michigan’s Troubled History of Urban Renewal Complicates Detroit’s Comeback

By David Bergh
Associate Editor, Volume 23
Online Publications Editor, Volume 24

image.pngThe governmental power of eminent domain has deep roots in the Anglo-American legal tradition. Early English law held that the power to expropriate land was inherent in the Crown’s sovereign authority.[1] As an element of the Crown’s sovereignty, this power was essentially limitless – the King or Queen could take land without compensation, as William I did following the Norman Conquest.[2] The requirement that compensation be paid developed as the absolute power of the Crown waned.[3] This legal doctrine was little altered in the early years of the United States. The Michigan Constitution of 1835 contains no affirmative grant of the power to use eminent domain, only the requirement that property could not be taken “without just compensation therefor.”[4] The fact that the power of eminent domain inhered in the residual sovereignty of the states was endorsed by the U.S. Supreme Court in 1878.[5]

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Can They Do That? (Part 3): Reversing Modern-Day Redlining

By John Spangler
Associate Editor, Volume 23
Production Editor, Volume 24

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Patrick Miles Jr. – Michigan candidate for Attorney General

Detroit remains the most segregated metropolitan areas in the United States.[1]  This is in part thanks to historical practices such as “redlining” where majority African-American neighborhoods were deemed “too risky” for mortgage lending.[2]  Though overt discrimination in housing has been outlawed[3], the systems created for that purpose often remain, in whole or in part.  One Democratic candidate for Michigan Attorney General, Pat Miles, has pledged to use the office to combat modern-day redlining.[4]  Patrick Miles Jr., who prefers to go by Pat, is the former U.S. Attorney for the Western District of Michigan, serving from 2012 to 2017.  Prior to that appointment, his experience was largely in private sector and telecommunications law.  As part of our ongoing series examining the campaign pledges of candidates for that office, we have to ask: can he do that?

The study Mr. Miles cited in his pledge to defend consumers was conducted by Reveal, a project of the Center for Investigative JournalismIts analysis of data from 61 metro areas across 2015 and 2016 resulted in a blunt conclusion: “Fifty years after the federal Fair Housing Act banned racial discrimination in lending, African Americans and Latinos continue to be routinely denied conventional mortgage loans at a rate far higher than their white counterparts.”[5]  In Detroit, that trend meant an African-American applicant was almost twice as likely to be denied a conventional home mortgage.[6]

Defenders of current mortgage practices point to what they believe are flaws in that data.  They argue that high rejection rates are a result of large lenders and technology, making applying for a mortgage easier and leading to more applicants with subpar credit.[7]  Yet this explanation ignores that federal housing policy codified racial minority populations as a lending risk for years, and those policies’ effects persist today.[8]  Without the access to long-term investment and wealth from generations ago, today’s minority borrowers are still subject to these trends.[9]      Continue reading

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Forever Barred: Examining Felony Disenfranchisement in Florida

By Shanene Frederick
Associate Editor, Volume 23
Executive Articles Editor, Volume 24

Desmond Meade was convicted on felony drug and firearm charges back in 2001.[1] Meade, who previously battled drug addiction and experienced homelessness, went on to earn a law degree from Florida International University College of Law.[2] However, his decades-old convictions continue to affect his life today in the form of disenfranchisement. In 2016, Meade could not vote for his wife during her bid for office in the Florida House of Representatives because Florida permanently bars those with felony convictions from voting after they complete their sentences.[3]

As the director of Floridians for Fair Democracy, Meade and his team of volunteers have petitioned for over two years in an effort to get a constitutional amendment proposal on Florida’s November 2018 state ballot. [4] Last month, Floridians for Fair Democracy announced that the campaign, Florida Second Chances, had surpassed 799,000 certified signatures, putting it above the required threshold to get on the ballot.[5] If passed, the amendment would restore voting rights to over 1.5 million Floridians, who have been subject to what are arguably the harshest felony disenfranchisement laws in the country. [6]

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The states take various approaches to felony disenfranchisement.  As of 2016, all states but Maine and Vermont bar those incarcerated from voting, thirty states restrict those on felony probation from voting, and thirty-four states restrict parolees from voting.[7] Florida is one of twelve states that strip away voting rights post-sentence and post-parole.[8] The effects of Florida’s disenfranchisement scheme are particularly startling: Florida holds 27 percent of the nation’s disenfranchised population, and the total 1.5 million post-sentence disenfranchised individuals make up 48 percent of those who are disenfranchised post-sentence nationally.[9] In 2016, 10.4 percent of Florida’s eligible voting age population was denied the right to vote.[10]

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Gerrymandering: Beyond the Partisan Divide

By Elliott Gluck
Associate Editor, Volume 23

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Pennsylvania’s old Congressional map.

Pennsylvania has a long history of a fierce partisan political divisions, due in part to its extremely diverse electorate, geography, and economy.[1] This divide results in massive campaign spending each election cycle and has earned Pennsylvania the label of a battleground or purple state every four years.[2] With this background in mind, it should be no surprise that Pennsylvania is a hub for the practice of gerrymandering which often has a disproportionate effect on communities of color. For partisan gerrymandering, “[t]he playbook is simple: Concentrate as many of your opponents’ votes into a handful of districts as you can, a tactic known as ‘packing.’ Then spread the remainder of those votes thinly across a whole lot of districts, known as ‘cracking.’”[3] Fortunately, the Pennsylvania Supreme Court has stepped in, dubbing the Republican created map used over the last six years unconstitutional.[4] In turn, the Court redrew a far more equitable map that may provide a model for nonpartisan redistricting in years to come.[5]

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The new Congressional map drawn by the Pennsylvania Supreme Court in the wake of its recent decision.

The new map moves away from the fracturing of communities into disparate districts like the Republican map and attempts to keep counties and municipal areas intact when establishing congressional districts.[6] While the Republican drawn map split 28 of Pennsylvania’s 67 counties into separate congressional districts, the new map will only divide 13.[7] An analysis conducted by the Washington Post finds that the new map erases many of the zig-zag lines that were commonplace under the Republican plan, especially in and around urban areas, and eliminates over 1,100 of electoral boarders, a reduction of approximately 37 percent.[8] This focus on compact districts and keeping communities intact when drawing congressional lines is especially notable in Philadelphia, where the new map splits the city into fewer districts.[9] Each of these changes moves towards congressional districts looking “geographically normal,” a goal shared by many nonpartisan experts in the field.[10] Under the new map, districts are defined by strong community ties, unlike the old map where a seafood restaurant held the seventh congressional district “together like a piece of Scotch tape.”[11]

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