News

SCOTUS: Judge Ruled on DACA Documents Too Soon

The U.S. Supreme Court on Wednesday said that U.S. District Judge William Alsup ruled too soon when we ordered document disclosure in lawsuits challenging the Trump administration’s DACA wind-down, the ABA Journal reports. In a per curiam decision, the court said that Alsup should have ruled first on the government’s claim that the courts have no jurisdiction to rescind the program. The judge should have stayed his order to resolve the government’s arguments.
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Oregon Lawyer Named Legal Innovator for Using Analytics in Detainee Representation

The Financial Times has named Stephen Manning, legal director of the Innovation Law Lab, as the top legal innovator in North America, the ABA Journal reports. Manning was recognized for using data analytics and technology to help lawyers in immigration and refugee cases. The Innovation Law Lab has advocated for the release of over 30,000 women and children from detention centers with a 99 percent success rate. The online platform fosters links between lawyers and provides legal support and resources to detainees and volunteers.
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RAISE Act: Is it Good Immigration Policy for Employers and America?

 
On August 2, 2017, Senators Tom Cotton (R-Ark.) and David Perdue (R-GA) introduced Reforming American Immigration for a Strong Economy (RAISE) Act with the support of President Trump. Senator Perdue has stated this legislation will return to the United States’ “historically normal levels of legal immigration.” Is the RAISE Act a good idea for the United States – from an employer’s perspective and a moral perspective?
 
Key Points of RAISE Act
 
The following are the key points of the proposed RAISE Act:
1. Establish a Skills-Based Points System – It will replace the current employment-based green card visa process with a system that would prioritize applicants by points based on education, English-language ability, high-paying job offers, age, record of extraordinary achievement, and entrepreneurial initiative. Experience does not count for any points. Age is a crucial factor with the younger you are (not including a minor), the more points you get. The total quota of visas remains at 140,000 (this number would include spouses and children) per year for visas in EB-1, EB-2, EB-3 and EB-4 categories. Employment-based numbers are to be divided with a limit of 50% being available in each six-month period.   Applicants who apply will remain in the eligibility pool for 12 months and then will have to reapply.
 
2. Cut Total Immigrant Visas – It will reduce the annual distribution of green cards from 1 million to about 500,000. Although the sponsors state this level of visas returns the number to historical levels, it treats the number of immigrants in 1900 as the same as the number of immigrants in 2017, even though the U.S. population quadrupled during that time. To understand historical levels, one must control for the population of the country at that time.
 
3. Change meaning of Immediate Family - It will retain immigration preferences for spouses and minor children of USCs and permanent residents (LPRs) while eliminating preferences for USCs petitioning for parents, adult children or siblings and LPRs petitioning for adult children. Additionally, the age for an adult “child” for immediate relative sponsorship will be changed from 21 to 18.
 
4. Reduce the number of family-based green cards - Total family-based green card numbers will be reduced from a base 226,000 to about 88,000.  This number will likely use all the 88,000 numbers, meaning only immediate relatives, who are spouses and children under 18 of U.S. citizens, will be able to immigrate.
 
5. Grandfather in potential immigrants awaiting entry under immigration categories eliminated by RAISE Act if their entry into U.S. is scheduled to occur within 1 year of RAISE Act’s enactment. However, if one is “in line” and their number is not called within the one-year grandfathering clause, one permanently loses their place in line and may not ever be able to get back in line.
 
6. Parents of U.S. citizens - They will be eligible for a “W” non-immigrant visa for up to five years with the possibility of extending if the citizen child continues to reside in the US. Parents will not be eligible to be employed or eligible for any public benefits. 
 
7. Eliminate Diversity Visa Lottery - RAISE Act would eliminate the 50,000 visas allocated to this lottery.
 
8. Cap refugee admissions at 50,000 per year - The INA set a limit of 50,000 in the early 1980s for three years, but since then, the INA has permitted the President to set the level, which until 2017 was significantly higher than 50,000.
 
How Does Skills-Based System Work
 
Here’s how the skills-based points system works:
 
a. Applicants earn points based on education, English-language ability, high-paying job offers, age, record of extraordinary achievement, and entrepreneurial initiative;
 
b. Applicants must reach 30-point threshold to be eligible for employment-based visa; and
 
c. Eligible applicants enter pool of potential immigrants from which USCIS twice a year invites highest scorers to file full applications and undergo security vetting.
 
The tie-breaking factors, in descending order are education (the higher the degree, the better), English skills, and age.
 
Employer Issues with RAISE Act
 
Historically, the United States has valued the ability of companies to sponsor employees. So, would this legislation impact that ability of employers? Yes, because the perspective employee that an employer seeks may not have sufficient points to immigrate under the merit-based system. A points-based immigration system would take the decision of who counts as a qualified individual away from employers and give the government more influence. 
 
Furthermore, the RAISE Act fails to increase the number of employment-based green cards at a time when our nation needs to do so to compete to attract the “best and the brightest." The RAISE Act is also harmful to graduates from U.S. universities and would remove lower-skilled immigrants from the U.S. immigration system, even though these immigrants contribute positively to the U.S. economy. 
 
Family-Based Visa Issues
 
The United States has always valued the ability of families to sponsor family members. Often immigrants desire to sponsor their parents or adult children in order to keep the family unit together in the long term. This legislation would deny this ability to keep the family unit together permanently, which I think all would agree is contrary to our values. The Act's very narrow grandfather period is not enough and would unfairly penalize thousands of family-based immigrants who have been patiently waiting for years in a visa backlog. 
 
Conclusion
 
Although everyone agrees our immigration system is broken, the RAISE Act does not appear to be the tool to fix it. Instead, the RAISE Act would cause serious problems for employers seeking to hire foreign nationals through employment-based visas. Additionally, this bill is contrary to American values and those magical words on the Statute of Liberty - "Give me your tired, your poor, your huddled masses yearning to breathe free…”. Luckily, there is very little chance this legislation will ever become law.

Bruce E. Buchanan is a founding partner of Sebelist Buchanan Law PLLC located in Nashville and Atlanta. He is also “Of Counsel” to Siskind Susser, P.C. on employer immigration compliance matters. Bruce is a graduate of Vanderbilt University School of Law. Bruce co-authored a book, I-9 and E-Verify Handbook, 2d edition, which has recently been published. He may be reached at bbuchanan@sblimmigration.com or (615) 345-0266.
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Immaterial False Statement Does Not Equal Loss of Citizenship

 
In Maslenjak v. United States, 582 U.S.___ (2017), the U.S. Supreme Court, in an opinion written by Justice Elena Kagan, and joined by Chief Justice John B. Roberts and Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor, held a naturalized American citizen cannot be stripped of their citizenship in a criminal proceeding based on having made an immaterial false statement during the process of procuring naturalization. Justices Neil Gorsuch and Clarence Thomas concurred in part and concurred in the judgement. Justice Samuel Alito also concurred in the judgement. 
 
Petitioner Divna Maslenjak is an ethnic Serb, who resided in Bosnia during the Yugoslav civil war of the 1990s. In 1998, Maslenjak, her husband and their children applied for refugee status in the United States. During the application process, Maslenjak testified under oath that she and her family would be persecuted by Bosnian Muslims because they were ethnic Serbs, and by Serbs because her husband had evaded service in the Bosnian Serb Army and fled to Serbia. Years later, when Maslenjak filed for naturalization, she swore that she had never given false information to a government official when applying for an immigration benefit and she had never lied to a U.S. official to gain entry into the United States. 
 
Around the time that Maslenjak filed for naturalization, the Government confronted Maslenjak’s husband with records showing that he had not hid in Serbia during the civil war, but had in fact served as an officer in the Bosnian Serb Army, and his brigade participated in the Srebrenica massacre where roughly 8,000 civilians were killed. About a year later, Maslenjak’s husband was convicted of charges of making false statements on immigration applications. During her husband’s court proceedings Maslenjak admitted that she had known all along that her husband had fought in Bosnia during the 1990s and did not hide in Serbia as she had previously stated. 
 
A federal prosecutor (Government) charged her with “knowingly procur[ing], contrary to law, [her] naturalization,” in violation of 18 U.S.C. § 1425(a). The Government argued that Maslenjak violated § 1425(a) because she also violated 18 U.S.C. § 1015(a), which prohibits knowingly making a false statement under oath in a naturalization proceeding. 
 
Thereafter, a trial in federal court took place. The District Court’s jury instructions stated to obtain a conviction under § 1425(a), the Government did not need to prove that Maslenjak’s false statements were material to the decision to approve her citizenship application. The jury convicted Maslenjak. The Sixth Circuit Court of Appeals affirmed the conviction, holding if Maslenjak made false statements, then she violated §§ 1015(a) and 1425(a).   
 
The Supreme Court held that the jury instructions provided by the District Court were in error because the jury needed to find more than just the fact that Maslenjak made a false statement. Accordingly, the Court vacated the judgement of the Sixth Circuit Court of Appeals and remanded the case. 
 
The Government argued that § 1425(a) applies to any violation of the law committed “in the course of procuring naturalization,” even if that violation of the law would not have impacted the decision to approve or deny the naturalization application. Maslenjak, on the other hand, argued that an applicant for naturalization “procures” citizenship “contrary to law” only if the predicate crime “contribut[ed]” to grant of citizenship. 
 
The Court disagreed with the Government’s position, explaining that its argument “falters on the way language naturally works.” In the majority opinion, Justice Kagan provided the example of an applicant for naturalization who fills out her naturalization application in a government office with a knife hidden in her purse, a knife that is not mentioned or used. The hypothetical applicant violated the law prohibiting bringing weapons to a federal building and “has surely done so in the course of procuring citizenship,” however, the hypothetical applicant has not obtained citizenship “contrary to law,” because the violation of the law banning weapons in federal buildings is merely coincidental with the acquisition of citizenship. 
 
The Court reasoned that by following the Government’s logic, it would open “the door to a world of disquieting consequences,” where a lie would always provide a basis for the Government to rescind citizenship, and therefore create a “profound mismatch between requirements for naturalization” and requirements for denaturalization. In 1988, the Court distinguished between lies told for a material purpose and lies told out of embarrassment, fear or a desire for privacy: “[w]illful misrepresentations made for other reasons, such as embarrassment, fear or a desire for privacy, were not deemed sufficiently culpable to brand the applicant as someone who lacks moral character,” a requirement for naturalization. Kungys v. United States, 485 U.S. 759, 780 (1988). By the Government’s logic, the Court held, an applicant who misrepresents that he belonged to a support group out of embarrassment or a desire for privacy, may simultaneously be granted citizenship despite the misrepresentation but then be stripped of that citizenship because of the representation. 
 
In practice, the Court suggested that its ruling in Maslenjak requires that a jury deciding whether a defendant acquired citizenship through a lie must decide how “knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.” In other words, a jury must determine if knowledge of the real facts would impact the defendant’s statutory eligibility for naturalization. For example, if a defendant lied about the amount of time he had spent in the United States prior to filing his application for naturalization, and if the truth would make him statutorily ineligible to naturalize, the lie would be material and therefore the Government would be able to rescind citizenship. 
 
The Court also noted that materiality also applies to a lie, which standing alone, would not lead to a denial of naturalization, but “could have led to the discovery of other facts” which would lead to such denial. In those cases, the Government would have to demonstrate that having truthful information would have allowed immigration officials to investigate further and this additional investigation would have led to the discovery of information that would render the applicant ineligible for naturalization. The defense to such alleged material misrepresentation would be for an applicant to show eligibility to naturalize. 
 
In his separate opinion concurring in part and concurring in judgment, Justice Gorsuch agreed with the majority that the “plain text and structure of the statute before us require the Government to prove causation as an act of conviction: The defendant’s illegal conduct must, in some manner, cause her naturalization.” Justice Gorsuch objected to the majority providing guidance on how the requirement to show causation could be applied other cases. Justice Alito, while concurring in the judgement of the majority, wrote in a separate opinion that a naturalization applicant’s lie has to be material, but “does not require proof that a false statement actually had some effect on the naturalization decision.”

Aga Haupt is the founding partner of Haupt Immigration Law. She received her J.D. from University of Mississippi in 2005. Aga may be reached at 615-679-0069 or aga@hauptimmigrationlaw.com.
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Tennessee Judges Required to Make Special Findings in Requests for SIJS Predicate Orders

 
The Tennessee Court of Appeals recently issued the state’s first opinion on Special Immigrant Juvenile Status (“SIJS”). The court’s decision ensures that judges cannot arbitrarily deny immigrant children the opportunity to remain in Tennessee after fleeing abuse, abandonment or neglect in their home countries.
 
Pursuant to 8 U.S.C. § 1101(a)(27)(J), the term “special immigrant” means:
 
(i) an immigrant who is present in the United States who has been declared dependent on a juvenile court located in the United States or whom such a court has legally committed to, or placed under the custody of, an agency or department of a state, or an individual or entity appointed by a state juvenile court located in the United States, and whose reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under state law;
(ii) for whom it has been determined in administrative or judicial proceedings that it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence; and
(iii) in whose case the Secretary of Homeland Security consents to the grant of special immigrant juvenile status, except that - - 
(I) no juvenile court has jurisdiction to determine custody status or placement of an alien in the custody of the Secretary of Health and Human Services specifically consents to such jurisdiction; and  
(II) no natural parent or prior adoptive parent of any alien provided special immigrant juvenile status under this subparagraph shall thereafter, by virtue of such parentage, be accorded any right, privilege, or status under this chapter; 
 
8 U.S.C. § 1101(a)(27)(J) (2014). 
 
In other words, in order for a child to qualify for SIJS, a state court must first determine that reunification with one or both of a child’s parents is not viable due to abuse, abandonment, neglect, or a similar basis under state law and that it is not in the child’s best interests to be returned to his or her home country.  If the court makes these determinations and places a child in the custody of a private person, then the child is considered prima facie eligible for SIJS.  The Immigration Act of 1990 first introduced SIJS as a form of relief and it was clarified and expanded as part of the Trafficking Victims Protection Reauthorization Act of 2008.  Even with a form of immigration relief nearing its 30th birthday, some state juvenile courts have still refused to make the requisite findings.    
 
This landmark Tennessee decision follows the sad story of a child from Guatemala who was forced to quit school in the 6th grade in order to work in a corn field to help support his family.  With his father out of the picture, the child’s mother was the sole financial provider for the child and his two younger sisters.  Even with the child’s additional income, the child’s mother was unable to adequately provide for him.  Some days the child would not eat because he did not have time with his work schedule.  In July 2015, the child left Guatemala behind and traveled to the United States where he was reunited with his paternal uncle.  The child’s uncle has given him, for the first time, a normal childhood.  The child no longer has to work, he is able to go to school, and he gets to eat every single day.  The child is happy and thriving here in his uncle’s care, and it is the child’s express desire to remain in the United States with his uncle. 
 
The child’s uncle filed a petition in Rutherford County to become his legal guardian.  The uncle did this in part, so his nephew could apply for SIJS and stay in the United States with him.  Unfortunately, Rutherford County judge felt that he did not have the jurisdiction to determine whether it was in the best interest of the child to be returned to Guatemala.  Without that specific finding from the state court judge, the child cannot apply for SIJS.  The Rutherford County judge believed, for some reason, that he did not have the “authority” to determine whether the United States or Guatemala was a better place for the child to live.  
 
The Tennessee Attorney General has opined that TCA § 34-2-101 grants juvenile, probate, circuit, and chancery courts concurrent jurisdiction to appoint guardians of the person for minors, including undocumented minors.  Tenn. Att’y Gen. Op. 14-84 (Sept. 16, 2014).  The Sixth Circuit Court of Appeals has held a state court has the jurisdiction to make the determination regarding whether sending a child alien back to his or her home country would be in the child’s best interest.  Gao v. Jenifer, 185 F.3d 548, 556 (6th Cir. 1999).  However, even with guidance on the matter, the trial court maintained that it was not an appropriate forum to determine whether living in the United States or Guatemala would be in the child’s best interest.  
 
Mid-South Immigration Advocates, a Memphis-based nonprofit immigration law firm, appealed the court’s refusal to make this determination, arguing that since the judge has the authority to appoint a guardian of an undocumented child domiciled in Tennessee, the judge necessarily has the authority to include any other directives as it “determines is appropriate to properly care for” the minor.  T.C.A. § 34-2-105(2).  Further, in any proceedings involving the care and custody of a minor child, “the determination shall be made on the basis of the best interest of the child.”  T.C.A. § 36-6-106(a).  The Tennessee Court of Appeals agreed with the child’s attorney, adopting the reasoning and analysis employed by the Court of Special Appeals of Maryland (“Maryland Court”) as contained in In re Dany G., 117 A.3d 650 (Md. Ct. Spec. App. 2015).  The Maryland Court essentially held two things: (1) the federal law directs states to apply state law, and (2) state judges are experts when it comes to applying state law.  Thus, as the judges and chancellors of the Rutherford County Chancery Court are in fact state court judges with expertise in applying state law, the court has the authority to determine whether it is in the child’s best interest to remain in Tennessee or to be returned to his or her home country, regardless of the child’s immigration status.        
 
This ruling supports Tennessee’s most vulnerable immigrant children, ensuring that many will be able to continue enjoying the benefits of living a life of safety and dignity with their families and legal guardians in Tennessee.

Caroline M. Burriss is a 2017 graduate of the University of Memphis Cecil C. Humphreys School of Law and a staff member with Mid-South Immigration Advocates (MIA). Pending admission to the bar, Ms. Burriss will be MIA’s newest Staff Attorney, focusing her practice on removal defense for unaccompanied minors and asylum seekers.  She may be reached at (901) 244-4367 or burriss@miamemphis.org.
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Letter from the Editor

 
I would like to thank Caroline Burris and Aga Haupt for providing their excellent articles in this issue. I’m always looking for writers and articles on 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.
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SCOTUS Allows Full Trump Travel Ban to Take Effect

The U.S. Supreme Court today allowed the Trump Administration’s latest travel ban to take full effect, including the ban on travel by individuals with a bona fide relationship to a person in the United States, the ABA Journal reports. The order will remain in place until the government’s appeals to orders from federal judges in Hawaii and Maryland are heard and, if cert if granted, until the Supreme Court rules.

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Federal Judge Issues Permanent Injunction on Sanctuary Cities Order

A federal judge yesterday issued a permanent injunction blocking President Donald Trump’s executive order denying funds to cities that don’t cooperate in immigration enforcement, the ABA Journal reports. The order violates the separation of powers, the 10th Amendment’s ban on conscription of local jurisdictions and Fifth Amendment’s due process clause, according to U.S. District Judge William Orrick. Orrick also said Attorney General Jeff Sessions wasn’t credible when he interpreted the executive order in a May memo.
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Attorney Volunteers Needed for Immigrant Family Defense Workshop in Memphis

The TBA Young Lawyers Division and the Tennessee Immigrant and Refugee Rights Coalition will be hosting their final Family Defense Workshop on Tuesday at 6 p.m. at Iglesia Nueva Vida. Volunteer lawyers will provide powers of attorney for individuals in the event of deportation or other immigration enforcement actions. A large turnout of clients is expected so many attorney volunteers are needed. No immigration law experience is required and a brief training will be held prior to the clinic. Those with questions should contact Brandon Pettes or Camila Fyler.
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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.  
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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.
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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.
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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.
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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.
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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.

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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.
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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 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.
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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 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.
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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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