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. 
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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.
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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.
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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."
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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 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.
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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 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.
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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.
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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.
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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.
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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!

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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.
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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.

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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.
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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.
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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.”
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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.

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SCOTUS Allows Extended Family Exemptions to Travel Ban

The U.S. Supreme Court today allowed a lower court’s decision to stand that would exempt grandparents, grandchildren and other extended family members from the Trump administration’s travel ban, the ABA Journal reports. The Court did block a portion of U.S. District Judge Derrick Watson’s ruling that exempted from the travel ban refugees who have formal help from a resettlement agency.
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Judge Expands Family Members Excluded from Travel Ban, Trump Administration to Appeal

A federal judge in Hawaii has weakened the Trump administration’s travel ban by expanding the list of family relationships that could qualify visitors for entry into the U.S., the Associated Press reports. U.S. District Judge Derrick Watson ordered the government not to enforce the ban on grandparents, grandchildren, brothers-in-law, sisters-in-law, uncles, aunts, nieces, nephews and cousins of people in the U.S. Attorney General Jeff Sessions said today that the administration will appeal the decision to the U.S. Supreme Court, whose justices allowed the ban to take effect last month.
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Item of Interest

Below is an article that was published in the the Disability Section Connect. We thought it had information that would be of interest to those of you in this section as well.  

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U.S. House Budget Proposal Would Cut LSC by 24%

The proposed budget for fiscal year 2018 from the U.S. House of Representatives includes money for the Legal Services Corporation but cuts its funding by 24 percent, the ABA Journal reports. It is a departure from the Trump administration’s budget, which slashes LSC funding entirely. The House budget also includes big increases in funding for immigration enforcement, with a $64.5 million hike for the Executive Office for Immigration Review and an extra $82 million for the U.S. Marshals Service to support an increased detainee population.
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Knox Co. Sheriff Approved for ICE Partnership

The Knox County Sheriff’s Office has entered into a partnership with U.S. Immigration and Customs Enforcement (ICE) to act on its behalf, WBIR reports. The agreement is a part of the controversial 287 (g) program that critics say leads to significantly higher deportations for minor offenses. Knox County Sheriff JJ Jones believes it will make the Knox County detention facility more efficient. The agreement was signed on June 15 and is valid until June 2019.
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Tennessee, 9 Other States Threaten Suit Over Immigrants Brought to U.S. as Children

Attorney General Herbert Slatery has joined nine other state attorneys general and one governor in signing a letter to U.S. Attorney General Jeff Sessions urging the Trump administration to end the Deferred Action for Childhood Arrivals (DACA) program, which allows young immigrants who entered the U.S. illegally as children to stay in the country. The Tennessean reports that the signees threaten to challenge the program if the federal government does not agree to phase it out.
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Federal Judge Rules Immigration Agents Violated Rights of Detained Juveniles

A judge ruled this week that U.S. Customs and Border Protection officials have been violating the rights of detained immigrant juveniles, the ABA Journal reports. Los Angeles federal district judge Dolly Gee found that some facilities fail to meet the standards set by a 1997 settlement, with infractions such as spotty access to clean water, insufficient food, poor sleeping conditions and intentional use of air conditioning to create very cold temperatures. The ruling also found instances of juveniles being detained for longer than the allowed 20-day waiting period.
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State Department Adopting Guidelines to Define ‘Family Ties’ for Travel Ban Exemptions

The U.S. State Department has reportedly adopted guidelines to define which immigrants are exempt from the Trump administration’s recently reinstated travel ban, the ABA Journal reports. The guidelines say that immigrants with close family or business ties to the United States will be allowed to enter, as required by the Supreme Court ruling that allowed the ban to take effect. The guidelines define close family as a parent (including an in-law), spouse, child (including in-laws), and sibling (including stepsibling or half-sibling). It does not include grandparent, aunt, uncle, grandchild, niece, nephew, cousin or a fiancé. Also allowed are those who have a relationship with a U.S. entity that is “formal, documented, and formed in the ordinary course, rather than for the purpose of evading” the ban.
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Controversial Immigration Ordinance Dead in Nashville

Metro Nashville Councilmembers sponsoring the “Nashville Together” immigration ordinance will withdraw their bills after Mayor Megan Barry called on the council to rethink the legislation, The Tennessean reports. The legislation sought to prevent Metro from using city funds and facilities to enforce federal immigration law unless the action was accompanied by a federal warrant signed by a judge. Metro Director of Law Jon Cooper issued a legal opinion that said the ordinance is not enforceable.
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