Category Archives: Immigration

A Mere Gesture: Expedited Due Process For Recent Immigrants

A Mere Gesture: Expedited Due Process For Recent Immigrants

By Kelly Burke

            Due process is a valued right in the American legal system, that denies the deprivation of “life, liberty, or property” at the hands of the government.[1] Over the past few months, the news media has directed Americans’ attention to an influx of immigration of women and children from countries like Honduras, Guatemala, and El Salvador.[2] The dramatic increase in immigration from these countries can be attributed to a fear of violence in the immigrants’ home countries, places affected by total gang domination or severe political unrest.[3] Meanwhile, this influx has caused the government to respond in dramatic fashion, utilizing an expedited removal process in the hopes of quickly dealing with the large population entering the country.[4] However, this expedited process crosses into a grey area of due process rights, leaving many individuals that need protection vulnerable to a hardnosed American legal system. The expedited due process needs to be altered to safe guard immigrants, allowing them more access to legal counsel and a right to a court appointed attorney.

After making entry into the United States, an immigrant is entitled to due process of law under the Fifth Amendment of the Constitution.[5] Among these due process rights afforded to immigrants is the right to an interview before removal if an individual expresses fear in returning to his or her home country.[6] The expedited removal process begins first with the determination of an immigrant’s admissibility into the United States.[7] During this preliminary questioning, an immigration officer determines if an individual intends to apply for asylum or expresses any fear of returning to their home country.[8] If there is any expression of fear, the individual is entitled to an interview with an asylum officer. [9] To stay in the country the immigrant must express “credible fear” of returning to their country.[10] However during these interviews, immigrants do not have the right to counsel appointed by the court.[11] Instead, an immigrant may only obtain counsel themselves and are only given a “reasonable opportunity” to obtain counsel.[12]

In a complaint lodged with the United States District Court of the District of Columbia, plaintiffs allege various facts that portray their due process rights on shaky grounds.[13] In the complaint the plaintiffs point out that the Artesia detention center is isolated, far away from access to legal counsel.[14] Furthermore, access to the telephone is limited to a phone call once a day that only last a few minutes.[15] People brought into the Artesia detention center are only told of their right to obtain their own counsel upon entering the detention facility, after a long day of processing and transportation.[16] Personal visits between attorneys and clients are hardly private or confidential and Immigration and Customs Enforcement (“ICE”) agents stand within earshot of what should be privileged conversations.[17] Mothers are also required to keep their children close when speaking about their fears of physical violence or sexual assaults to their attorneys because there is no one else available to watch their children during these meetings.[18] Furthermore, children are not entitled to a separate interview from their parent and therefore not allowed to give their own reasons for fearing to return to their home countries.[19]

In Mullane v. Central Hanover Bank, Justice Robert Jackson wrote, “A process which is a mere gesture is not due process.”[20] The expedited due process afforded to immigrants is a mere gesture in the guise of affording immigrants their due process rights. These immigrants now subject to the confusing system of United States law should be entitled to greater protection against deportation. One of the greatest protections that should be afforded to these individuals is the right to a court appointed attorney. While this option may cause many American taxpayers to cringe, detention and removal are serious impingements on an individual’s liberty. Being forced to return to a country that could present certain death to an individual deserves to be given more weight than it is currently treated with in the American legal system. In these immigration cases, it is undeniably harder for foreign and non-English speaking to understand their procedural rights and how to respond in interviews. These individuals that usually only have the barest understanding of the American legal system and are the most vulnerable to misunderstanding are require attorneys the most.

However, in the case that a court attorney cannot be appointed, then the court must ensure that individuals in detention centers have adequate information and access to Pro Bono attorneys. Individuals in the detention facility need to meet with their attorneys for more than a few minutes and decide adequate legal courses of action. Their conversation should truly be in private and subject to privilege between an attorney and client. The most basic due process rights need to be afforded to these individuals to give them an adequate opportunity to understand the questioning process and what is expected of them through the process.

Immigrants in this expedited system are facing the horrors of violence in returning to their own countries without adequate safeguards to protect those with legitimate fears from being returned to extremely dangerous environments. While court appointed attorneys may cost the American taxpayers a little more, immigration due process rights should change to include the right to a court appointed lawyer before removal is decided. At the very least, individuals in the detention centers deserve to have adequate opportunities and time to meet with their attorneys in private settings.

[1] U.S. Const. amend. V.

[2] Leigh Caldwell, Influx of Immigrant Children Expected to Last Through the Summer, Cable News Network (June 10, 2014), http://www.cnn.com/2014/06/10/politics/children-immigrant-crossings.

[3] Id.

[4] Complaint for Injunctive and Declaratory Relief at 11, M.S.P.C. v. Sec. of the Dep’t. of Homeland Def. , No. 1:14-cv-01437 (D.C. Cir. Aug. 22, 2014).

[5] 8 C.F.R. § 1240.3.

[6] 8 C.F.R. § 1225

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] See Id.

[12] Id.

[13]See generally Complaint for Injunctive and Declaratory Relief, M.S.P.C., No. 1:14-cv-01437.

[14] Id. at 3.

[15] Id. at 97.

[16] Id. at 105.

[17] Id. at 121.

[18] Id. at 125.

[19] Id. at 149.

[20] 339 U.S. 306, 315 (1950)

Despite Legal Action, The Effects of HB 56 Live on

Despite Legal Action, The Effects of HB 56 Live On

Brian Padgett

In a recent study published in the American Journal of Public Health, researchers affiliated with the University of Alabama Birmingham’s (UAB) School of Public Health conducted a study on the effects of H.B. 56 on minority groups and their health care decisions.[1] The primary finding of the study, conducted between May and July of 2012, is that HB 56 restricted access to health care because Latino and Latina persons (both immigrants and non-immigrants) thought that their ethnicity would complicate their efforts to acquire health care for both themselves and their U.S.-born children.[2]

HB 56, first passed in 2011, was modeled on an anti-immigration law passed earlier that year in Arizona. The law contained several provisions which were ultimately declared unconstitutional by the United States Supreme Court. These provisions included sections making it illegal for an illegal immigrant to apply for a job, prohibitions on offering immigrants transportation unless the driver ascertained their immigration status, and also forbidding the renting of personal property to illegal immigrants without confirming that the renter was not an illegal immigrant.[3] The remaining provisions of HB56 have also been under attack by the American Civil Liberties Union and other rights groups. These lawsuits have led to settlements between plaintiffs and the Alabama legislature, which have further limited the remaining provisions of HB 56.[4]

HB 56 was not billed as a health care law upon its passage, but the UAB study helps to show that complex laws that appear targeted at a particular group often haven unexpected, and mostly unknown, side-effects. The study noted that several Latina women who otherwise would have sought out medical care were unsure what documentation they needed to provide their doctors, and also if such documentation would be used against them later in immigration or removal proceedings.[5] Although the study was limited in scope, only involving thirty participants over a three-month period[6], it seems likely that concerns remain among immigrant groups regarding HB 56 and healthcare. Since the law has not been declared unconstitutional as a whole, confusion continues as to which sections remain in effect. Without large-scale education in immigrant communities regarding their access to health care, at least some Alabama residents will likely continue to forego healthcare due to concerns about HB 56.


[1] Kari White, Valerie A. Yeager, Nir Menachemi, and Isabel C. Scarinci.  (2014). Impact of Alabama’s Immigration Law on Access to Health Care Among Latina Immigrants and Children: Implications for National Reform. American Journal of Public Health. e-View Ahead of Print. http://ajph.aphapublications.org/doi/abs/10.2105/AJPH.2013.301560 (accessed January 20, 2014).

[2] Id.

[3] Mike Cason, ‘HB56 Two Years Later: Settlement Takes Bite Out of Alabama’s Immigration Law.’ November 3, 2013. http://blog.al.com/wire/2013/11/hb56_two_years_later_constitut.html

[4] Id.

[5] Jesse Chambers, ‘UAB Study Says Alabama’s Immigration Law Keeps Latina Women and Kids From Getting Health Care,’ January 23, 2014. http://blog.al.com/spotnews/2014/01/uab_study_says_alabamas_immigr.html

[6] White et al., supra note 1.

Papers Please, An Analysis of Both Sides of the Voter ID Debate

“Papers Please”, An Analysis of Both Sides of the Voter ID Debate

Nathan Gilbert

  1. Introduction

In 2011, the legislature of the state of Alabama passed a controversial new law requiring prospective voters to present a government issued form of photo identification before voting.[1]  Alabama was not the first state to pass such a law; in fact, at least 20 states have passed similar legislation requiring a photo ID to vote.[2]  These statutes, many of which were passed in the states that make up the former Confederacy[3], have been extremely contentious and have elicited passionate arguments on both sides.[4] 

Proponents of these voter ID laws argue that their purpose is to protect the integrity of the ballot from would-be voter fraud.[5]  They assert that voter fraud is rampant and widespread, especially in certain areas, and that requiring voters to present photo identification will merely serve to safeguard the process from illegal and fraudulent voting.[6]  Supporters often say that these laws have no partisan basis and are merely a way to ensure the reliability of the democratic system.[7] 

Opponents of these laws, however, paint a much different picture. They claim that voter ID laws are a solution in search of a problem and that the burden of voter ID laws is unfairly borne by historically underrepresented groups such as minorities, women, and the poor.[8]  Additionally, some opponents of voter ID laws claim that these laws were passed with a distinctly partisan agenda in mind and that they serve to intentionally disenfranchise traditionally Democratic voters.[9]

  1. Arguments In Support of Voter ID

Supporters of voter ID laws claim that these laws are necessary to prevent what they perceive to be widespread voter fraud.[10]  They point to various instances where they claim elections were tampered with by fraudulent voting[11]. To supporters, opponents’ arguments that the requirements of obtaining photo identification to vote are too onerous and have the potential to disenfranchise voters are “fundamentally dishonest” and even “intensely racist”.[12] They argue that a photo ID is required for most everything in American society today such as driving, cashing a check, buying alcohol, obtaining a job, or checking into a hotel.[13]  If requiring photo ID for these things is so simple that it seems common place, then why should a process as sacred to our republic be any different?  Supporters of these laws, and the states that have passed them, claim that there is no racial, class, or partisan basis for them.[14]  However, even some supporters do claim, with little to no factual basis that almost all voter fraud in this country is perpetrated by supporters of the Democratic Party.[15] Conservative commentator Martin Wright explains, “Voter fraud is usually an organized activity, not some spur-of-the-moment decision by its perpetrators, the overwhelming majority of whom are Democrats – as we have seen with the IRS and FEC, the spirit of Tammany Hall is still very much alive and well in the Democrat(sic) Party.”[16] To supporters, the requirement to obtain a government issued photo ID is merely a “simple process” that does not present a large burden on anyone with a desire to participate in the electoral process.[17]

  1. Argument Opposing Voter ID

Probably the chief argument in opposition to the photo ID requirements for voters is that the problem of in-person voter fraud does not truly exist, or does not exist in a great enough quantity so as to warrant voter ID requirements that could, and they argue, will, potentially disenfranchise voters.[18]  Opponents of voter ID do not argue that states do not have an interest in ensuring that the person presenting themselves to vote is in reality who they say they are.  However, they do argue that the current laws that do not require a photo ID are sufficient.[19] 

New York University School of Law’s Brennan Center for Justice has conducted substantial research in this field and has concluded that in person voter fraud, the type that could potentially be stopped by requiring photo ID, is so rare that it could be insignificant when considering the huge number of votes cast in American elections.[20]  In fact, statistically speaking, “It is more likely that an individual will be struck by lightning than that he will impersonate another voter at the polls.”[21] Taking into account the extreme rarity of in person voter fraud, the price of disenfranchising legitimate voters who lack the required necessary ID is simply unconscionable.  Opponents of these laws rely on facts such as the following to illustrate their point:

  • “11 percent of eligible voters… lack the required photo ID” necessary to vote under these laws.[22]
  •  “Nearly 500,000 eligible voters do not have            access to a vehicle and live more than 10 miles from the nearest state ID-issuing office.”[23]
  • “People of color are more likely to be disenfranchised by these laws since they are less likely to have photo ID than the general population.”[24]
  • Only 48% of American voting-age women have access to a birth certificate (often a requirement to obtain most government issued photo identification) bearing their current legal name, as opposed to their maiden name.[25]

In addition, some opponents of these laws argue that the true motive of the laws’ supporters is not an altruistic desire for fair and honest elections, but rather to systematically disenfranchise traditionally left-leaning constituencies (the poor, people of color, and students) for their own political gain.[26]  It is no secret that President Barack Obama and the Democratic Party benefitted heavily from record turnout from these groups in the historic 2008 elections.[27]  Some even see these laws restricting voting rights as a stealth continuation of the Jim Crow laws that kept poor and minority voters disenfranchised in the American South for generations.[28] Congressman John Lewis opined that today’s restrictions on voting rights are akin to Jim Crow laws and are simply “the same face with a different mask.”[29] Republican politicians have consistently used ‘dog whistle’ issues, such as bussing and states’ rights, to signal their race-baiting intentions to their white constituents.[30]  It can be argued that these new voter ID statutes are just a continuation of the dark legacy of voter suppression by the dominant racial and social class.

  1. Conclusion

The right to vote select one’s leaders is one of the “fundamental rights” that Americans enjoy.[31] Regardless of one’s political affiliation, all Americans can likely agree that it is important that we safeguard the voting rights of our citizens from threats in any form they may come.  But the question of whether state laws requiring voters to present a photo ID are a necessary step to safeguard the system or a discriminatory tool used to disenfranchise poor and minority voters is one that sharply divides Americans and that division does not seem to be abating in the foreseeable future.

 


[1] Ala. Code § 17-9-30 (2011).

[2] See, Voter Identification Requirements, National Conference of State Legislatures (2013),

[3] See id. Of the 20 states that have passed photo voter ID laws, all of those that made up the former Confederate States of America are included: Georgia, Tennessee, Arkansas, Mississippi, North Carolina, Texas, Virginia, Florida, Louisiana, South Carolina, and Alabama. Id.

[4] William Browning, ‘Jim Crow is Alive,’ Says Missouri Democrat During Contentious Voter ID Debate, Yahoo!- News (Feb. 14, 2013), http://www.news.yahoo.com/jim-crow-alive-says-missouri-democrat-during-contentious-175500855.html.

[5] See Hans A. von Spakovsky, Democracy in Danger: Case Studies of Election Fraud, Heritage Foundation (Oct. 27, 2008) at 3, available at s3.amazonaws.com/thf_media/2008/pdf/sr24.pdf.

[6] Id. at 1.

[7] Jonathan S. Toobin, Voter ID Laws Are Inherently Reasonable, Not Racist or Republican, Christian Science Monitor (July 23, 2012), http://www.csmonitor.com/Commentary/Opinion/2012/0723/Voter-ID-laws-are-inherently-reasonable-not-racist-or-Republican.

[8] See Keesha Gaskins & Sundeep Iyer, The Challenge of Obtaining Voter Identification, Brennan Center For Justice at New York University School of Law (July 29, 2011), http://www.brennancenter.org/sites/default/files/legacy/Democracy/VRE/Challenge_of_Obtaining_Voter_ID.pdf.

[9] See Jamelle Bouie, Republicans Admit Voter-ID Laws Are Aimed at Democratic Voters, The Daily Beast (Aug. 28, 2013), http://www.thedailybeast.com/articles/2013/08/28/republicans-admit-voter-id-laws-are-aimed-at-democratic-voters.html (“And the particular restrictions imposed by Republican lawmakers- limiting the acceptable forms of identification…- certainly do appear aimed at Democratic voters.”).

[10] Toobin, supra note 7.

[11] See Spakovsky, supra note 5.

[12] Martin Knight, Why Democrats Really Oppose Voter ID, RedState (Aug. 17, 2013), http://www.redstate.com/martin_a_knight/2013/08/17/why-democrats-oppose-voter-id/.

[13] Id.

[14] See Toobin, supra note 7.

[15]  Knight, supra note 11.

[16] Id.

[17] John Gerardi, Arguments Against Voter ID Are Ridiculous, The Daily Caller (July 16, 2012), http://www.dailycaller.com/2012/07/16/arguments-against-voter-id-laws-are-ridiculous/.

[18] See Eugene Robinson, Witch Hunt for the Zombie Voter, The Washington Post (Apr. 30, 2012), http://articles.washingtonpost.com/2012-04-30/opinions/35454507_1_hispanic-vote-voter-id-bill-photo-id-laws (“There is no Widespread Voter Fraud. All available evidence indicates that fraudulent voting of the kind that photo ID laws would presumably prevent- someone shows up at the polls and votes in someone else’s name- just doesn’t happen.”).

[19] See Eugene Robinson, The GOP’s Crime Against Voters, The Washington Post (July 9, 2012), http://articles.washingtonpost.com/2012-07-09/opinions/35488080_1_new-voter-id-law-pennsylvania-voters-mike-turzai (“[T]he Justice Department under Bush conducted an extensive, nationwide, five-year probe of voter fraud- and ended up convicting a grand total of 86 individuals… Most of the cases involved felons or immigrants who may not have known they were ineligible to vote. Not one case involved the only kind of fraud that voter ID could theoretically prevent.”).

[20] See Justin Levitt, The Truth About Voter Fraud, Brennan Center For Justice at New York University School of Law (2007) at 3, http://brennancenter.org/sites/default/files/legacy/The%20Truth%20About%20Voter%20Fraud.pdf.

[21] Id. at 4.

[22] Gaksins & Iyer, supra note 8, at 1.

[23] Id.

[24] Id.

[25] Citizens Without Proof: A Survey of Americans’ Possession of Documentary Proof of Citizenship and Photo Identification, Brennan Center For Justice at New York University School of Law (Nov. 2006) at 2, http://brennancenter.org/sites/default/files/legacy/d/download_file_39242.pdf.

[26] See Bouie, supra note 9.

[27] See Sam Roberts, 2008 Surge in Black Voters Nearly Erased Racial Gap, The New York Times (July 20, 2009), http://www.nytimes.com/2009/07/21/us/politics/21vote.html?_r=0 (“But with Barack Obama on the ballot, the makeup of the 131 million who voted last year was markedly different. While the number of non-Hispanic white voters remained roughly the same, 2 million more blacks, 2 million more Latinos and 600,000 more Asians turned out.”).  

[28] Saki Knafo, Voting Rights of Black American Trampled by ‘New Jim Crow,’ Civil Rights Advocates Say, The Huffington Post (July 25, 2013), http://www.huffingtonpost.com/2013/07/25/black-america-2013_n_3647789.html.

[29] Id.

[30] See Frank Rudy Cooper, Masculinities, Post-racialism and the Gates Controversy: The False Equivalence between Officer and Civilian, 11 Nev. L.J. 1, 33-34 (010)

Follow

Get every new post delivered to your Inbox.

%d bloggers like this: