Weekly Diaspora: Immigration Reform Falls to the GOP

Catherine Traywick

The precarious fate of comprehensive immigration reform has fallen into the hands of staunch nativists and the road to immigration reform just became more arduous than ever.

This article was originally published by the Media Consortium, of which Rewire is a member organization.

The precarious fate of comprehensive immigration reform has fallen into the hands of staunch nativists. With Republicans now leading the House and a new crop of anti-immigrant  governors stepping up to bat, the road to immigration reform just became more arduous than ever.

The results of the mid-term elections are a heavy blow to immigration reform advocates who have recently contended with a DREAM Act defeat, a pandemic of state-level anti-immigrant measures, attempts to stifle Latino votes, and an allegedly disaffected Latino electorate. And, to add insult to injury, the election season was tainted by a slew of race-baiting campaign aids and sensational anti-immigrant soundbytes (AlterNet has the rundown).

But, amid the upset, there is some hope. Despite pessimistic predictions, Latinos voters defiantly flexed their electoral muscle, effectively creating a “Latino firewall in the west” that helped save the Senate for Democrats, according to Elena Shore at New America Media. Moreover, numerous anti-immigrant measures are finally getting their day in court—though the results of those hearings may be as mixed as the outcome of this election.

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Immigration reform in the hands of House Republicans

While Democrats retained control of the Senate, the Republican seizure of the House bodes ill for comprehensive immigration reform.

As Elise Foley note at the Washington Independent, immigration legislation will now be at the mercy of John Boehner (R-OH), the new speaker of the house, and Representative Steve King (R-IA), who will now chair the immigration subcommittee. Both legislators oppose comprehensive reform and will likely project their shared anti-immigrant agenda on House legislation:

King tends to be on the extreme end of anti-illegal immigration rhetoric: He favors changes to birthright citizenship to keep U.S.-born children of illegal immigrants from receiving citizenship and argues more states should pass immigration crackdowns like Arizona’s SB 1070. King has pushed for more border enforcement and an electrified  fence along the border to keep illegal immigrants out. “We do that with livestock all the time,” he said. […]

Of course, King won’t have ultimate power over the House Republicans’ priorities on immigration. Boehner will set a good deal of the agenda, and is likely to follow some of the plans hinted at in the Pledge to America, a vague but enforcement-heavy document released in September.

Foley also reports that the Congressional Hispanic Caucus, which supports comprehensive immigration reform, lost three House members this election—Reps. John Salazar (D-CO), Solomon Ortiz (D-TX) and Ciro Rodriguez (D-TX).

An influx of anti-immigrant governors

State gubernatorial races proved similarly disappointing for reform advocates, as a host of anti-immigrant candidates were propelled into office on a wave of Tea Party-backed, anti-immigrant sentiment.

Just before the election, Mother Jones’ Suzy Khimm profiled a series of anti-immigrant gubernatorial front runners, most of whom ended up winning.

In Georgia, a state poised to replicate Arizona’s SB 1070, the governor’s seat went to Nathan Deal, “an early supporter of a birthright citizenship bill that would deny granting citizenship to the children of illegal immigrants.” Moreover, in Nevada and New Mexico, two anti-immigrant Latino candidates prevailed: Susana Martinez (R-NM), who was endorsed by Sarah Palin and accused her opponent of defending child-molesting “criminal illegals,” and Brian Sandoval (R-NV), who supports SB-1070 and famously bragged that his children “don’t look Hispanic.”

Brewer skips town to attend SB 1070 hearing

Meanwhile, Governor Jan Brewer (R-AZ) retained her governorship this week, in spite of some really disastrous campaigning. Fittingly, Brewer spent election day appealing the federal injunction issued against SB 1070, the harsh anti-immigrant law that made her famous, last spring.

New America Media’s Valeria Fernández reports that Terry Goddard, Arizona’s current attorney general and democratic gubernatorial candidate, blasted Brewer’s decision to attend the SB 1070 hearing and suggested that her relentless defense of the anti-immigrant law has more to do with her connections to the private prison industry than her concern over public safety:

Goddard pointed to Brewer’s staff—including political advisor Chuck Coughlin, president of High Ground Public Affairs, which also represents Correction Corporation of America (CCA), the country’s largest private-prison company —as evidence that she is more concerned with helping private business make a profit than with public safety.

Goddard isn’t the first to make such a claim. Media outlets have reported on Arizona legislators’ suspicious connections to the private prison industry for several months. In June, Beau Hodai revealed for In These Times how SB 1070 was steered and shaped by private prison lobbyists:

… the bill’s promoters are as equally dedicated to border politics as they are to promoting the fortunes of private prison companies, like Corrections Corporation of America (CCA) and Geo Group, which stand to reap substantial profits as more undocumented residents end up in jail.

Hodai’s findings were further validated by a much-publicized NPR investigation last week.

All of the bad press has done little to hurt Brewer, however. She retained her governorship and managed to collect $3 million in private donations to continue defending SB 1070, which she is prepared to take all the way to the Supreme Court.

Of course, that may not be necessary—as Fernández notes, “longtime legal observers who watched the hearing said the judges seemed to be leaning toward partially reinstating the provisions” previously thrown out by federal Judge Susan Bolton. It’s still too soon to tell for sure, but preliminary indicators suggest that legal challenges to recently passed anti-immigrant legislation will obtain mixed results. Two lawsuits against SB 1070 have already been dismissed, while several other anti-immigrant measures have recently been overturned, blocked, or delayed by federal judges.

The fight for comprehensive immigration reform has clearly taken a big hit on all fronts—not least of which, electorally. But while election results were disappointing for reform advocates, they also clearly demonstrated the undeniable electoral might of Latinos—who, in spite of low expectations, came out in strong numbers and disproportionately supported pro-immigration candidates. It’s not over till it’s over.

This post features links to the best independent, progressive reporting about immigration by members of The Media Consortium. It is free to reprint. Visit the Diaspora for a complete list of articles on immigration issues, or follow us on Twitter. And for the best progressive reporting on critical economy, environment, and health care issues, check out The Audit, The Mulch, and The Pulse . This is a project of The Media Consortium, a network of leading independent media outlets.

News Human Rights

Lawsuit: Religious Groups Are Denying Abortion Care to Teen Refugees

Nicole Knight Shine

The suit accuses the federal government of paying millions to religious grantees that refuse to provide unaccompanied minors with legally required reproductive health services.

Two years ago, 17-year-old Rosa was raped as she fled north from her home country in Central America to the United States. Placed in a Catholic shelter in Florida, the teen learned she was pregnant, and told shelter officials that if she couldn’t end the pregnancy, she’d kill herself. She was hospitalized for suicidal thoughts. Upon her release, the facility in which she’d been originally placed rejected her because of her desire for an abortion, according to a federal lawsuit filed Friday. So did another. Both, reads the lawsuit, were federal contractors paid to care for unaccompanied minors like Rosa.

Rosa’s story is one in a series sketched out in a 16-page complaint brought by the American Civil Liberties Union (ACLU) against the U.S. Department of Health and Human Services (HHS). The suit accuses the federal government of paying millions to religious grantees—including nearly $20 million over two years to the U.S. Conference of Catholic Bishops (USCCB)—that refuse to provide unaccompanied minors with legally required reproductive health services, including contraception and abortion. The grantees are paid by the federal Office of Refugee Resettlement (ORR) to house and care for young refugees.

The lawsuit, brought in U.S. District Court in San Francisco, amounts to a fresh test of the degree to which Catholic organizations and other faith-based groups can claim exemptions from federal laws and regulations on religious grounds.

“Religious liberties do not include the ability to impose your beliefs on a vulnerable population and deny them legal health care,” said Jennifer Chou, attorney with the ACLU of Northern California, in a phone interview with Rewire. “The government is delegating responsibility … to these religiously affiliated organizations who are then not acting in the best interest of these young people.”

Mark Weber, a spokesperson for the HHS, which includes the ORR, told Rewire via email that the agency cannot comment on pending litigation.

Escaping turmoil and abuse in their home countries, young refugees—predominantly from Central America—are fleeing to the United States, with 33,726 arriving in 2015, down from 57,496 the year before. About one-third are girls. As many as eight in ten girls and women who cross the border are sexually assaulted; it is unknown how many arrive in need of abortion care.

The federal ORR places unaccompanied minors with organizations that are paid to offer temporary shelter and a range of services, including reproductive health care, while the youths’ applications for asylum are pending. But documents the ACLU obtained indicate that some groups are withholding that health care on religious grounds and rejecting youths who request abortion care.

The 1997 “Flores agreement” and ORR’s contracts with grantees, which the ACLU cites in its lawsuit, require referrals to “medical care providers who offer pregnant [unaccompanied immigrant minors] the opportunity to be provided information and counseling regarding prenatal care and delivery; infant care, foster care, or adoption; and pregnancy termination.”

In 2016, the federal government awarded 56 grants to 30 organizations to provide care to unaccompanied minors, including 11 that the ACLU claims impose religious restrictions on reproductive health care.

In one case, ORR officials struggled to find accommodations for 14-year-old Maria, who wanted to end her pregnancy, according to the complaint. An ORR official wrote, according to a document the ACLU obtained, that the agency would have liked to transfer Maria to Florida to be near family, but “both of the shelters in Florida are faith-based and will not take the child to have this procedure,” meaning an abortion.

In another, the complaint reads, 16-year-old Zoe was placed with Youth for Tomorrow, a faith-based shelter in Virginia, where she learned she was pregnant. She asked for abortion counseling, which was delayed nearly two weeks, the complaint says. Learning of her decision to end the pregnancy, Youth for Tomorrow asked to transfer Zoe elsewhere because of its abortion prohibition, even though Zoe said she was happy at the shelter.

For vulnerable youths, such transfers represent a form of “secondary trauma,” according to the ACLU’s Chou.

“These women have already endured so much,” she told Rewire. “The process of transferring these youths from shelter to shelter tears them away from their only existing support system in the U.S.”

Federal officials, according to the complaint, were aware that the religious grantees would withhold abortion referrals. In one case, the Archdiocese of Galveston-Houston was awarded more than $8 million between 2013 and 2016, although it stated in its grant application that rape survivors wouldn’t be offered abortion care, but instead permitted to “process the trauma of the rape while also exploring the decision of whether to keep the baby or plan an adoption.”

The lawsuit also claims that a contract with the U.S. Conference of Catholic Bishops included language requiring unaccompanied minors who were pregnant to be given information and counseling about pregnancy termination, but the ORR removed that language after the USCCB complained.

The USCCB did not respond to Rewire‘s request for comment. But in a letter last year to the ORR, the USCCB and five religious groups, including some ORR grantees, wrote they could not facilitate health-care services for unaccompanied minors that run contrary to their beliefs.

The lawsuit is the second the ACLU has filed recently against the federal government over religious privileges.

Last month, the ACLU filed a Freedom of Information Act suit demanding that the federal Centers for Medicare & Medicaid Services release complaints against federally funded Catholic hospitals, where patients have reported being denied emergency medical care in violation of federal law.

In 2009, the ACLU also sued the federal government for allowing USCCB to impose religious restrictions on a taxpayer-funded reproductive health program for trafficking survivors. In 2012, a district court ruled in the ACLU’s favor, and the government appealed. The First Circuit Court of Appeal later dismissed the case as “moot” because the government did not renew USCCB’s contract.

Analysis Law and Policy

Millions Wait While Supreme Court Appears Ready to Dawdle on Immigration Reform

Jessica Mason Pieklo

Oral arguments Monday showed a conservative block of Supreme Court justices willing to let immigration reform languish well beyond President Obama's time in office.

Oral arguments Monday in United States v. Texas, the case challenging the Obama administration’s 2014 executive actions on deferred deportation of immigrants, were a good reminder that the Republican game plan for the rest of the Supreme Court term is resulting in both terrible politics and terrible law. Rather than hold hearings on the nomination of Merrick Garland to replace the late Justice Antonin Scalia, which could potentially sway the Court to a more centrist majority, Republicans are trying to run out the clock. By doing so, they hope to save what remains of a term that was supposed to be packed with conservative wins—chief among them killing off the Obama administration’s deferred deportation actions.

But like many recent Republican political strategies, the consequences of this intentional delay are potentially devastating for millions of people.

At issue in United States v. Texas is the Obama administration’s immigration program known as Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), and the expansion of an existing program, Deferred Action for Childhood Arrivals (DACA). In a nutshell, to qualify under the current versions of these programs, individuals must have continuously resided in the United States since January 1, 2010; register with the government; and pass a criminal background check. There are more steps and details to qualify, obviously, but the gist of the actions, according to the Obama administration, is to try to keep families together. The administration’s actions do not grant legal residency status to any qualified person; they simply put prosecuting individuals’ cases at a low-level priority, which could theoretically mean enough time for them to obtain lawful status.

Combined, the programs are estimated to benefit approximately four million undocumented immigrants now living in the United States.

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The deferred action programs are effectively exercises of prosecutorial discretion. All law enforcement officers, from your local cop to FBI agents, have a certain amount of legal discretion in determining whether and to what degree a particular law should be enforced. In the context of immigration law, that prosecutorial discretion comes in the form of immigration agents determining whether or not to initiate deportation proceedings. Just how much prosecutorial discretion and under what circumstances it can be employed is at issue in this case.

Law enforcement officers reside, constitutionally speaking, in the executive branch. So does the president of the United States. That means, generally speaking, prosecutorial discretion is a function of executive power.

Yet Texas, joined by 25 other Republican-controlled states, argues the president does not have the power to defer deportation of large numbers of people under DAPA and the expanded version of DACA.

In other words, Texas and the conservative-run states are challenging the administration’s use of executive power when it comes to immigration reform.

Those states filed a lawsuit in federal district court in Texas in February 2015 challenging the administration’s actions, arguing they were beyond the scope of its authority and that states risked the immediate harm of a couple thousand dollars in administrative damages without immediate court action. The district court agreed and issued a highly unusual nationwide injunction blocking the administration’s immigration actions from taking effect anywhere in the country, even in states not joined in the lawsuit or ideologically opposed to the measure. Not surprisingly, the ultra-conservative Fifth Circuit Court of Appeals upheld the injunction. The Department of Justice appealed that decision to the Roberts Court, which in January agreed to hear the case.

It’s not entirely clear that the district court had the initial authority to issue the ruling that it did, which is a legal issue to be sorted out at some point. But here’s the sticky part: Nobody, even the most dedicated court watchers, really knows when that will be! Maybe the Roberts Court will address it. Maybe they won’t. Maybe it’ll take a separate lawsuit in a separate jurisdiction to test the enforceable limits and logic of the order, should we get a non-decision in the form of a tie in United States v. Texas.

And such a tie may very well happen. Before Scalia’s death, the conventional logic among court watchers was that the Roberts Court could split 5 to 4 ruling against the administration unless immigration advocates could convince Justice Anthony Kennedy to build on an earlier decision he authored supporting, in very broad terms, the executive’s authority to deal with immigration matters. That case, Arizona v. United Statesinvolved SB 1070, Arizona’s infamous “papers please” law that purported to empower local law enforcement to detain people on possible immigration violations, despite the fact that immigration enforcement is squarely within the power of the federal government and not the states. In striking many of the provisions as unconstitutional, Justice Kennedy stressed in that decision the importance of prosecutorial discretion.

Specifically, Kennedy wrote, “Discretion in the enforcement of immigration law embraces immediate human concerns,” such as “unauthorized workers trying to support their families.” He continued:

The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation’s international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission.

Deferred deportations are, at their very essence, exercises of executive authority. Given Kennedy’s language in Arizona v. United States, it’s reasonable for immigration advocates to have considered Kennedy a swing vote in support of the administration. I mean, he wrote about “human concerns” like undocumented workers trying to support their families as a justification for exercising discretion in not initiating deportation proceedings against every undocumented person possible.

But the Justice Kennedy concerned with the human toll of deportation seemed to be missing in action during oral arguments Monday, which makes it increasingly likely the Court will deadlock 4 to 4 on whether the deferred deportation actions are constitutional.

Rather than lean on his recent embrace of executive power on immigration matters, Justice Kennedy appeared concerned that the administration had created an entirely new policy that veered away from executive action and into legislative. “And it seems to me that that is a legislative, not an executive act,” Kennedy said to Solicitor General Donald Verrilli during arguments. Verrilli pushed back, but Kennedy didn’t seem to be buying it.

Kennedy went on to describe why he was considering the programs legislative acts rather than exercises of prosecutorial discretion. “The briefs go on for pages to the effect that the president has admitted a certain number of people and then Congress approves it,” Kennedy said. “That seems to me to have it backwards. It’s as if the president is setting the policy and the Congress is executing it. That’s just upside down!”

Should the Court split 4 to 4, the immediate impact would be to leave in place the Fifth Circuit ruling. But such a ruling would effectively answer nothing as to the constitutionality of DAPA and DACA expansion, leaving those policies up for a possible re-hearing the next term or even a challenge in another jurisdiction.

The point is we would get uncertainty in the law, and approximately four million people would continue with uncertainty as to the policies’ effect on their lives.

Which brings us back to the Republicans in Congress and their current strategy of running out the clock on the Garland nomination. The best chance conservatives have to hold onto what started out as a promising Supreme Court term for the kind of hot-button issues their base loves—abortion, birth control, immigration, and union busting—is to hope for as many ties this term as possible, find a way to win the presidency in 2016, and appoint their own replacement for Scalia. It is in every way an extension to the conservative approach to governing since Obama was first elected: Sit on the ball and run out the clock. The big question now is whether, and to what extent, the conservatives on the Roberts Court are willing to play along.