News

Refugees and Immigrants, Outlook and Hope for 2018 and Beyond

Chattanooga State’s Paralegal Program, and the International Law Section of the Tennessee Bar Association are sponsoring a free invite-only seminar “Refugees & Immigrants, Outlook & Hope for 2018 & Beyond” to be held on Oct. 26 from 3:00 p.m. – 4:30 p.m. at Chattanooga State, “Mobile Classroom” Library, Chattanooga, Tenn. 
 
Chattanooga State’s Global Scholars Honors Program is also hosting an empowering exhibition “Love Without Borders” featuring artwork from refugee children living in Greece from 10 a.m. - 6 p.m. on Oct. 26.   Attendees of the seminar will have the opportunity to have direct interactive discussions with the speakers, and will be able to explore this powerful exhibition.
 
The speakers on the panel include community leaders in the areas of refugee & immigrant rights advocacy law and policy.
 
The seminar will provide an overview of the global & U.S. refugee & immigrant rights & advocacy landscape as it concerns Tennessee for 2018 and beyond, and both policy & legal views of the ever-changing global view(s) of refugees and immigrants.
 
The panel discussion will last from 3 p.m. -  4 p.m. and then followed with a FAQ session for attendees, along with a light reception of beverage & desserts.  
read more »

Federal Judge Partially Blocks Third Travel Ban

A federal judge has partially blocked President Donald Trump’s third travel ban, which was set to take effect tomorrow, the ABA Journal reports. U.S. District Judge Derrick Watson said that the third version of the ban, which includes Iran, Libya, Somalia, Syria, Yemen and Chad, “improperly uses nationality as a proxy for risk” and violates the ban on nationality-based discrimination in the Immigration and Nationality Act. Watson did not rule on claims that the third travel ban amounted to religious discrimination.
read more »

DOJ Tells Supreme Court to Drop 'Moot' Travel Ban

The U.S. Department of Justice told the Supreme Court yesterday it should drop a pending challenge to President Donald Trump’s travel ban because the ban has been replaced with a new version, the ABA Journal reports. The third and newest version of the ban removed Sudan and adds Chad, North Korea, and certain citizens of Venezuela. The DOJ said that due to the changes, the case is moot. It also asked the Supreme Court to vacate lower court rulings in the case.
read more »

9th Circuit: Immigration Courts Must Consider Ability to Pay in Setting Bond

The 9th U.S. Circuit Court of Appeals has upheld an injunction requiring immigration judges to consider financial ability to pay when setting bond, the ABA Journal reports. “No person may be imprisoned merely on the account of his poverty,” wrote Judge Stephen Reinhardt for the panel. The American Bar Association previously filed an amicus brief in the case that said immigration courts should be required to consider ability to pay and flight risk before deciding on bond.
read more »

9th Circuit: Immigration Courts Must Consider Ability to Pay in Setting Bond

The 9th U.S. Circuit Court of Appeals has upheld an injunction requiring immigration judges to consider financial ability to pay when setting bond, the ABA Journal reports. “No person may be imprisoned merely on the account of his poverty,” wrote Judge Stephen Reinhardt for the panel. The American Bar Association previously filed an amicus brief in the case that said immigration courts should be required to consider ability to pay and flight risk before deciding on bond.
read more »

SCOTUS Kicks Off Term Today

The U.S. Supreme Court took the bench today to kick off what Justice Ruth Bader Ginsburg is calling a “momentous” term, CNN reports. This year’s big issues include gerrymandering, voting rights, religious liberty, privacy and immigration issues. Cases up for the Court include that of a Colorado baker who refused to bake a cake for a same-sex wedding, a case of whether investigators need to obtain a warrant for cell tower data and the case of the Trump Administration’s travel ban, which might have to be sent back down to a lower court due to the recent changes made to the order.
read more »

SCOTUS Kicks Off Term Today

The U.S. Supreme Court took the bench today to kick off what Justice Ruth Bader Ginsburg is calling a “momentous” term, CNN reports. This year’s big issues include gerrymandering, voting rights, religious liberty, privacy and immigration issues. Cases up for the Court include that of a Colorado baker who refused to bake a cake for a same-sex wedding, a case of whether investigators need to obtain a warrant for cell tower data and the case of the Trump Administration’s travel ban, which might have to be sent back down to a lower court due to the recent changes made to the order.
read more »

Magazine Probes Immigration Issues in Tennessee

Attorney General Herbert Slatery's decision to pull out of a multi-state anti-DACA effort is an example of how immigration politics in Tennessee are complicated — and changing, the New Yorker magazine reports in its latest edition. “Our office has decided not to challenge DACA in the litigation, because we believe there is a better approach,” Slatery wrote in a letter addressed to Tennessee’s two Republican senators. While the state legislature has pushed through strong anti-immigration laws, the magazine reports, it also nearly passed a bill that would allow undocumented students who grew up in the state to qualify for in-state tuition at public universities.

read more »

Appeals Court Holds Grandparents Exempt from Trump Travel Ban

The 9th Circuit Court of Appeals has upheld a district court’s decision on exemptions from the Executive Order travel ban issued by President Donald Trump, the ABA Journal reports. The dispute grew from the U.S. Supreme Court decision that allowed the ban against nationals from six majority-Muslim countries to take effect. That ban exempted individuals with “a credible claim of a bona fide relationship with a person or entity” in the U.S. The federal government clarified what it considered “close family” with a list that did not include grandparents and other extended family. This ruling ads grandparents and other extended relatives onto the exemption list.
read more »

Trump Administration to Phase Out DACA Program

The Trump Administration today announced that it would end protections for the so-called “dreamers” – undocumented immigrants brought into the United States as children, The Washington Post reports. The move offers current enrollees in the Deferred Action for Childhood Arrivals program the chance to continue working until their permits expire, and calls on Congress to address the issue via legislation. 
read more »

Tenn. AG Pulls Out of DACA Suit, Urges Congressional Action

In a letter to Senators Lamar Alexander and Bob Corker, Tennessee Attorney General Herbert Slatery altered his position on the Deferred Action for Childhood Arrivals (DACA) program and pulled the state out of a planned lawsuit against the federal government that will take place should the Trump administration not announce plans to phase out the program by Sept. 5. Slatery noted the “human element” at stake and instead asks the senators to support bipartisan legislation to address the program.
read more »

Houston Mayor Will Represent People Deported While Seeking Aid During Hurricane

With catastrophic storms and flooding wreaking havoc on the city of Houston, the city’s mayor has pledged to represent in court  undocumented immigrants who are afraid to seek aid for fear of deportation, Above the Law reports. A Harvard Law-educated attorney, Mayor Sylvester Turner responded to concerns that undocumented immigrants would not seek help from the floods due to a “show me your papers” law scheduled to take effect on Sept. 1. “I don’t care who you are, what your status is, I do not want you to run the risk of losing your life or a family member because you are concerned about SB 4,” Turner said, adding that he would represent those detained himself if need be.
read more »

ABA ‘Disappointed’ by Arpaio Pardon

The American Bar Association has expressed disappointment that a pardon was granted to former Arizona sheriff Joe Arpaio, who was convicted of criminal contempt of court for ignoring a judge’s order to cease racial profiling practices within the Maricopa County Sheriff’s Office. “Granting Arpaio an expedited pardon sends the wrong message to the public,” said ABA President Hilarie Bass via prepared statement, adding that an individual's own interpretation of justice "cannot be swapped for the rule of law."
read more »

To Be or Not to Be a Sanctuary City, That Is the Question?

 
I. Introduction
 
Sanctuary Cities are currently discussed every day either on TV, radio, at work and at home, and the topic will not be resolved anytime soon. Therefore, this article attempts to discuss where Sanctuary Cities started, and where Sanctuary Cities are going. Overall, Sanctuary Cities demonstrate the current immigration law policy divide in the United States, and yet also demonstrate the possible solutions to make immigration law policy whole and complete again.  
 
II: The Formation and Evolution of Sanctuary Cities
 
The term Sanctuary City can be found in the Fugitive Slave Act of 1793.  The first “Sanctuary Cities” were Northern cities which sheltered runaway slaves from federal agents seeking to enforce the property rights of slaveholders.
 
During the Reagan Administration in the 1980s, citizens of El Salvador and Guatemala fled their countries, and were treated as “economic migrants” rather than political refugees by the United States. People fleeing these countries were smuggled across the border, and sheltered by the Sanctuary Movement, which was led by the faith community.  Overall, approximately 2,000 people or more were sheltered by members of the Sanctuary Movement.  
 
Early in President Barack Obama’s presidency, deportations reached a record high of approximately 400,000 a year, and in 2014, the Obama Administration narrowed its standards for deportation and focused primarily on people who were deemed threats to national security, convicted of serious crimes, or recent border crossers. Under the new policy, deportations dropped slightly, while still remaining at historically high levels, reaching 333,341 in 2015.   
 
In response, cities began to adopt policies intended to limit cooperation with President Obama’s implementation of the Secure Communities policy.  President Obama’s administration threatened Sanctuary Cities with the loss of funding for noncompliance with federal law.  By the end of President Obama’s second term, however, more than 200 jurisdictions refused to cooperate with the program following a 2014 federal ruling that ICE waivers are voluntary. Under President Obama, the Sanctuary City as it is understood today was created, and cities began implementing specific and systematic policies that restricted cooperation with federal immigration officials.
 
Early in his term, President Donald Trump signed an Executive Order which threatened Sanctuary Cities with extensive loss of federal funding. In May, the Department of Justice backed away from its more aggressive implementation of President Trump’s January Executive Order, and defined a “Sanctuary City” as only those jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373.”  This is a much narrower interpretation than the commonly understood meaning of the term, and, in fact, of the earlier expressed views of the Attorney General who had stated that jurisdictions declining to hold individuals in custody pursuant to an ICE detainer request were “willfully violat[ing] federal law” and “threaten[ing] public safety.” 
 
By contrast, Section 8 U.S.C. 1373(a) only makes it illegal for a municipality to prohibit its law enforcement personnel from sharing information with federal immigration officials. It says nothing about policies that forbid inquiring into immigration status in the first place. Additionally, it imposes no requirement to comply with detainer requests. Thus, under the Justice Department’s definition, only those municipalities that enacted policies that expressly forbade information sharing would be considered a Sanctuary City. The DOJ has currently only identified eight such jurisdictions. 
 
While the legal definition of a Sanctuary City does not currently include those jurisdictions that have policies limiting compliance with Immigration and Customs Enforcement (ICE) detainer and information requests, this may be subject to change.  Currently, the term Sanctuary City is most commonly used to describe municipalities that restrict their cooperation with federal immigration agencies to some degree.  The two policies most often used to restrict cooperation are: 1) limiting the immigration status information shared with federal agencies — either by declining to gather it in the first place, or, limiting how it is shared; and 2) refusing to comply with detainer requests made by ICE. The degree to which jurisdictions refuse to cooperate with ICE, and the policies employed to that effect, vary across municipalities.
 
ICE has released a list of of 118 jurisdictions that it indentified as enacting policies intended to limit cooperation with federal immigration agencies .  This list reveals the variety of policies which jurisdictions use to frustrate the enforcement of federal immigration law.  
 
Of the 118 jurisdictions, the most common restriction on cooperation with ICE is refusing to honor detainer requests without a criminal warrant or judicial order. Currently, 65 jurisdictions employ this approach.  An additional 19 jurisdictions will only honor a detainer request if specified criteria are met.  This most often takes the form of requiring the detainee to be accused or previously convicted of a specified serious crime, a specific showing of “probable cause” by ICE agents, or a showing that the hold involves a legitimate law enforcement purpose unrelated to immigration law. 
 
For example, the Travis County, Texas, Sherriff’s Office has a policy of only honoring detainer requests that are accompanied by a court order, or when the subject of the detainer request is charged with, or has been convicted of: capital murder, first degree murder, aggravated sexual assault, or continuous smuggling of persons. Three jurisdictions require not only a warrant or court order, but also some specified criteria, such as an accusation of a serious crime. The ICE report also identifies 26 jurisdictions as refusing to honor detainer requests altogether, while 2 jurisdictions will only honor detainer requests if ICE promises to reimburse the jurisdiction for the cost. 
 
III. Current Trend of Creating Sanctuary City Structure—Nashville
 
Nashville and Davidson County Council members recently introduced a measure that would formally limit its cooperation with immigration agencies.  The sponsor of the bill stated that it would not make Nashville a “Sanctuary City,” citing the DOJ’s recent memo clarifying the legal definition. The legislation, however, closely mirrors policies adopted by jurisdictions commonly understood as Sanctuary Cities.
 
Currently, the Davidson County Sheriff's Office honors ICE detainer requests as well as notifying ICE when inmates they are interested in are being released so that federal immigration agents can pick them up.  Mayor Megan Barry has noted, however, that Nashville Police "are not immigration police, they do not ask about immigration status during stops, nor do they intend to start now.”  
 
The proposed legislation would forbid the Metro Government from using funding, resources, or facilities to assist in immigration enforcement as well as forbidding Metro police from requesting information about citizenship status.  Additionally, the legislation would prevent the Davidson County Sherriff’s Office from complying with detainer requests from ICE unless they are accompanied by an arrest warrant issued by a federal judge.  A related ordinance would end an agreement between the city government and U.S. Marshalls Office, reserving a certain number of beds for ICE to use in the local Nashville jail.
 
The proposed legislation was withdrawn, following Mayor Megan Barry’s urging that the city council reconsider, the city’s attorney stating the ordinance would not apply to the Sheriff’s Office and strong opposition by many residents, and by a number of potential Republican candidates for the upcoming 2018 election for Governor.  
 
IV. Legal Arguments for the Creation of Sanctuary Cities
 
Despite slight differences in definition and application from state to state and city to city, Sanctuary Cities are essentially the same everywhere.  A Sanctuary City is simply an area where local law enforcement does not request information regarding a person’s immigration status, and does not cooperate with federal immigration officers automatically.  Therefore, the question becomes: can a city be a Sanctuary City without violating any laws?
 
There are many arguments supporting the legality of Sanctuary Cities.  First, the federal government cannot force the states’ local law enforcement to cooperate in federal immigration law because that would violate the 10th Amendment of the United States Constitution.  The 10th Amendment reserves certain powers for the states including the police power, at issue here.  In addition, the Supreme Court held in New York v. United States, 505 U.S. 144 (1992) that the federal government may not compel a state to enact or enforce a particular law.  Then, in Printz v. United States, 521 U.S. 898 (1997), the Court held that the federal government cannot compel state or local officials to perform federally specified administrative tasks, for instance following a detainer request. 
 
Second, the federal government cannot refuse to provide federal funding on the basis that an area is acting as a Sanctuary City because doing so would violate the Spending Clause.  There is no nexus between the federal funding the government has threatened to take away and civil immigration enforcement.  Furthermore, the Supreme Court held in National Federation of Independent Business v. Sibelius, 567 U.S. 519 (2012), that the federal government cannot coerce states into implementing federal regulations by threatening to take away federal funding.
 
Finally, the policies implemented by Sanctuary Cities are not preempted by federal law.  Unless a city implements a policy preventing its law enforcement agents from cooperating with the federal government outright, meaning not even on a voluntary basis, the federal government has no foot to stand on. 
 
However, this does not necessarily mean that Sanctuary Cities will be the continuing legal trend for cities.  For all intents and purposes, Sanctuary Cities may be a reaction, but not the ultimate answer. Over the past decade, Sanctuary Cities have been created, lobbied for, and funded largely through non-profit organizations, and political actions/movements.  As the new Administration’s budget takes effect and most of the money left over from past grants begins to lessen, we may see the push or effort for the creation of Sanctuary Cities lessen.
 
V. Possible Sanctuary City-Like Alternative Programs or Initiatives 
 
Even as the movement and/or funds for Sanctuary Cities begin to lessen, we are still left with viable options for welcoming intending immigrants into our cities.  First, non-profit organizations, such as “Coming to America: The Story of Us” — a Chattanooga, Tennessee, based non-profit organization that helps immigrants become acclimated to their new communities — can step in to assist immigrants better understand their new communities, and how to grow and prosper there. Other groups such as Welcoming America — based out of Atlanta, Georgia — perform similar services, and can be truly instrumental in making immigrants feel welcome. 
 
Non-profit organizations such as these play an important role in assisting people who are in the United States without documentation find residence(s)/places to live in the community, learn English, and even prepare for tests involved in the immigration process. However, such organizations are often incapable of assisting intending immigrants complete the necessary legal processes to be present in the United States legally, and as such, problems with law enforcement are bound to arise. 
 
VI. Conclusion
 
Sanctuary Cities are here to stay, and are not going anywhere anytime soon.  However, this does not mean that Sanctuary Cities will remain the current trend for immigration law policy debate.  Most likely, during the next several months or so, different or new initiatives and actions will be taken in order to address the new Administration’s immigration law policy changes and programs once the new fiscal year of the U.S. federal government begins October 1 and funds are used differently and perhaps more aggressively.

— Terry Olsen is the founder of his own immigration law practice, Olsen Law Firm, in Chattanooga, Tennessee. His practice areas include both employment and family immigration law. Olsen is chair of the TBA’s International Law Section. He may be contacted at tolsen@tlolaw.com or (423) 648-9390.  
 
Olsen Law Firm summer law associates Amos Bailey and Caleb Elwell assisted in the drafting of this article. Amos Bailey attends Belmont University College of Law, where he will graduate with his law degree in May 2018. Caleb Elwell is a third-year law student at Vanderbilt Law School.
read more »

Letter from Editor

I would like to thank Patrick McNally, Terry Olsen and his summer associates, Amos Bailey and Caleb Elwell, and Steven Simerlein, the new chair of TBA’s Immigration Law Section, for providing excellent articles in this issue. I would welcome any articles, family-based immigration issues, employer-based immigration issues, crimimigration, and immigration court/custody issues. Please feel free to contact me at bbuchanan@sblimmigration.com or 615-345-0266 concerning writing an article.
 
I would also like to dedicate this issue to my late law partner, Yvette Sebelist, who tragically passed away on Aug. 15. The immigration bar lost a great representative of immigrants. May she rest in peace.
read more »

Sen. Alexander: ‘I Wasn’t Elected to Shut Down the Government’

After President Donald Trump remarked that he would shut down the federal government unless Congress funded a proposed border wall with Mexico, U.S. Sen. Lamar Alexander said yesterday that he “wasn’t elected to shut down the government,” the Tennessean reports. “I was elected to make it run for the benefit of taxpayers,” Alexander said. He added that he hoped the president and lawmakers could resolve differences of opinion in a productive way.
read more »

Help Needed for Power of Attorney Clinic Tomorrow in Memphis

The TBA’s Young Lawyers Division and the Tennessee Immigrant and Refugee Rights Coalition are partnering for a power of attorney clinic in Memphis tomorrow and still need volunteers. The clinic will offer assistance with family preparation plans in the event of a deportation or other enforcement action. The clinic will take place from 6 to 8:30 p.m. at El Mercadito, 3766 Ridgeway Road. Those who would like to volunteer can sign up here.
read more »

Services Sunday for Nashville Attorney, Community Leader

Services will be Sunday for Nashville lawyer Yvette Sebelist, who died Tuesday. She was 55. Sebelist graduated from the University of Tennessee College of Law in 1996, where she was president of the Law Women and staff editor for the Tennessee Law Review. She received an American Jurisprudence Award in Appellate Advocacy and the American Association of Women Lawyers Award. She worked as an immigration attorney with Sebelist Buchanan Law LLC, and served on a number of state, local and regional bar committees. She also served on numerous community nonprofit boards. Graveside services for Sebelist will be at the Temple Cemetery, 2001 15th Ave. North, at 12:30 p.m.
read more »

LGBT Law Annual Forum 2017

Make plans to join us for the LGBT Annual Forum. This year's annual forum will discuss updates in legislation and case law affecting the LGBT community, as well as immigration and asylum issues regarding the recent travel ban. Also included is a session on how to represent LGBT clients in a rural setting and advocate for LGBT youth on a local level by addressing problems with bullying and education. A final session will cover ethical considerations regarding diversity, inclusion and the ABA Model Rule 8.4(g) prohibiting discrimination. Click here to sign up today!

read more »

ABA House Urges Changes Affecting Undocumented Immigrants

During the American Bar Association Annual Meeting in New York City, the ABA House adopted policies urging Congress to add courthouses to the “sensitive locations” list for immigration enforcement and licensing groups to admit to the bar undocumented law school graduates under certain circumstances. Resolution 108, proposed by the ABA Law Student Division and backed by the ABA YLD, recommended that undocumented law grads be admitted to the bar if they are “seeking legal status.” Resolution 10C urges Congress to add courthouses to the list of “sensitive locations,” which currently include places like schools, healthcare facilities and places of worship, as off-limits to immigration enforcement agents.
read more »

Judge Blocks Law Requiring Birth Certificates for Foreign-Born Marriage Applicants

A federal judge has knocked down a new Louisiana law that required birth certificates from foreign-born marriage applicants, the Associated Press reports. The ruling stemmed from the case of Louisiana resident Viet Anh Vo, who applied for a marriage license with his U.S.-born fiancé and saw it denied two weeks before their wedding. Vo became a U.S. citizen at 8 years old, but had no birth certificate as his family had fled Vietnam as refugees. U.S. District Judge Ivan Lemelle found that the state failed to demonstrate a “compelling governmental interest” in creating a two-tiered system based on whether a citizen was born inside or outside the U.S.

read more »

Save the Date for ‘Tapas for Justice’

Tennessee Justice for Our Neighbors will host a fundraiser this fall in Nashville to support their work of providing legal services to immigrants and refugees. The event, called “Tapas for Justice,” will be held at Bass, Berry and Sims, 150 3rd Ave S , from 5:30 p.m. to 7:30 p.m. on Nov. 2. Tickets are $50 per person and $25 for students. Find out more and RSVP at the JFON website.
read more »

U.S. Citizen Detained by ICE for 3 Years Denied Compensation

An American citizen who was detained by Immigration and Customs for three years was denied a previously awarded judgment by an appeals court, NPR reports. New York resident Davino Watson was detained for three years until he could finally prove he was an American citizen, then was dropped off by ICE in Alabama with no money or resources to get home. A district judge awarded him $82,500 in damages, but the 2nd Circuit Court of Appeals overruled the decision, because the statute of limitations had expired while he was still in ICE custody.
read more »

Stronger Punishments for Undocumented Immigrants Creates Dilemma for Prosecutors

The New York Times examines new difficulties prosecutors face in dealing with undocumented immigrants in the tough-on-immigration Trump era. In some cases, closing plea deals for minor crimes can lead to deportation. Such problems could ignite further local-versus-federal conflicts. One example in the story highlights the dilemma of prosecuting a 23-year-old Washington college student for driving under the influence. A Seattle prosecutor said he previously believed that every defendant should be treated the same regardless of circumstances, but in this case he ended up allowing the student to plead guilty to the lesser crime of reckless driving to save her from the “life sentence of deportation.”
read more »

Immigration Lawyers Say They See Changes in ICE Priorities

Several Tennessee immigration lawyers tell the Chattanooga Times Free Press that they are seeing shifting priorities from Immigration and Customs Enforcement agents. Chattanooga attorney Terry Olsen says that in 15 years he has never before seen clients face detainment or removal proceedings when they were applying to become permanent residents. An ICE spokesman declined to comment.

read more »