How the election has impacted noncitizen clients Susan Church Wendy Wayne MACDL Seminar March 2017

Impact of the Election on Noncitizens with Criminal Histories 10/12/2017 11:15 PM Impact of the Election on Noncitizens with Criminal Histories Executive Orders Travel Ban Border Security Interior Enforcement © 2007 Microsoft Corporation. All rights reserved. Microsoft, Windows, Windows Vista and other product names are or may be registered trademarks and/or trademarks in the U.S. and/or other countries. The information herein is for informational purposes only and represents the current view of Microsoft Corporation as of the date of this presentation. Because Microsoft must respond to changing market conditions, it should not be interpreted to be a commitment on the part of Microsoft, and Microsoft cannot guarantee the accuracy of any information provided after the date of this presentation. MICROSOFT MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AS TO THE INFORMATION IN THIS PRESENTATION.

TWO FAILED TRAVEL BANS MUSLIM BAN 2.0: MUSLIM BAN 1.0 The suspension of entry applies to nationals of these six countries who (1) are outside the United States on the new Executive Order’s effective date of March 16, 2017; (2) do not have a valid visa on that date, and (3) did not have a valid visa as of 5:00 p.m. Eastern Standard Time on January 27, 2017 (the date of the prior Executive Order, No. 13,769). Exec. Order § 3(a) Does not include Lawful Permanent Residents Includes a waiver process Fourth Circuit to address it, unclear what is happening in 9th. An excellent judicial opinion and worth reading. MUSLIM BAN 1.0 Created mass chaos because it went into effect at 4:45 p.m. on a Friday afternoon Secretly revoked visas by secret memo sent to consulates (making it much harder to obtain relief) Was unclear, from the beginning whether it included Lawful Permanent Residents or not. FAQ seemed to say yes, administration said no Affected over 100,000 people and stranded many students, doctors, relatives of USC, engineers and professionals Boston Order enjoined Trump at 1:51 am on Saturday evening (Burroughs, Dein) Had special provision that instructed CBP to instruct airlines to board people. Yet only Lufthansa, almost one week later, actually boarded people.

Litigation Against Muslim Ban1.0 Washington v. Trump En Banc review requested by Judge and failed to obtain votes “A judge of this court called for a vote to determine whether the court should grant en banc reconsideration in order to vacate the published order denying the stay. The matter failed to receive a majority of the votes of the active judges in favor of en banc reconsideration.” NY – Iraqi Interpreter Discovery ongoing Determined over 700 excluded Original Lawsuits filed/Plaintiffs Boston – two LPRs, case expanded to include visa holders, Oxfam, State of Massachusetts Had unique provision ordering CBP to inform airlines to let people travel Included broader provisions than NY Had loss of association argument for Oxfam’s employees who could not exercise their 1st amendment speech rights Washington #2 – dealing only with IV holders Over 50 filed eventually

Scary, Scary times After NY order, which was deemed a national order by many legal experts interpreting it (it enjoined Trump but did not specifically say this is National), this is the administrations response – leaving an entire week of exclusion, chaos and trauma until the Washington State order came in: “Saturday's (NY) ruling does not undercut the President's executive order. All stopped visas will remain stopped. All halted admissions will remain halted. All restricted travel will remain prohibited. The executive order is a vital action toward strengthening America's borders, and therefore sovereignty. The order remains in place,“ Boston ruling was not followed until Lufthansa decided to follow it

Litigation Against Muslim Ban 2.0 OVERVIEW OF NEW BAN (SAME AS THE OLD BAN) More sophisticated ban Exempted current visa holders, lawful permanent residents Established broad waiver process without structure, making it ineffectual but strong on paper Still included language about “honor killings” AND listed two silly examples of terrorism by affected countries Implementation instructed CBP officers to enforce all grounds of inadmissibility, likely leading to the continued aggressive behavior at border Muhammed Ali son, Holocaust survivors, church going Canadians all being excluded BEWARE: those that traveled freely in the past, may not be so lucky. Be especially vigilant about clients traveling. Hawaii and Maryland Challenges Banned the second ban in its entirety via Hawaii and as to the Visa and refugee provisions in Maryland Likely to be challenged in the fourth as government has already appealed, trying to avoid the 9th again. Hawaii Decision based on Establishment of religion claim, and as the plaintiff’s affidavit states: Executive order also results in “their having to live in a country and in a State where there is the perception that the Government has established a disfavored religion.”

Hawaii Rulings and Claims: (1) violation of the Establishment Clause of the First Amendment (Count I); (2) violation of the equal protection guarantees of the Fifth Amendment’s Due Process Clause on the basis of religion, national origin, nationality, or alienage (Count II); (3) violation of the Due Process Clause of the Fifth Amendment based upon substantive due process rights (Count III); (4) violation of the procedural due process guarantees of the Fifth Amendment (Count IV); (5) violation of the INA due to discrimination on the basis of nationality, and exceeding the President’s authority under Sections 1182(f) and Case 1:17-cv-00050-DKW-KSC Document 219 Filed 03/15/17 14 1185(a) (Count V); (6) substantially burdening the exercise of religion in violation of the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 200bb-1(a) (Count VI); (7) substantive violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706 (2)(A)–(C), through violations of the Constitution, INA, and RFRA (Count VII); and (8) procedural violation of the APA, 5 U.S.C. § 706 (2)(D) (Count VIII).

TAKE AWAYS FROM THE RULINGS: Intent can matter, especially when intent is clear and unambiguous Security concerns will not receive a blank check against constitutional rights. Court can look to statements of surrogates and candidates to discern intent Legal challenges don’t always need to be perfect, they just need to be just and right.

Interior Enforcement Exec Order (1/25/17) 10/12/2017 11:15 PM Interior Enforcement Exec Order (1/25/17) Increase 287(g) and state & local cooperation Withdraw federal grant $ for “sanctuary cities” Reinstate Secure Communities More detention & ICE officers Collect and report on imm status of those charged with and convicted of crimes Expands enforcement priorities © 2007 Microsoft Corporation. All rights reserved. Microsoft, Windows, Windows Vista and other product names are or may be registered trademarks and/or trademarks in the U.S. and/or other countries. The information herein is for informational purposes only and represents the current view of Microsoft Corporation as of the date of this presentation. Because Microsoft must respond to changing market conditions, it should not be interpreted to be a commitment on the part of Microsoft, and Microsoft cannot guarantee the accuracy of any information provided after the date of this presentation. MICROSOFT MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AS TO THE INFORMATION IN THIS PRESENTATION.

New Enforcement Priorities 10/12/2017 11:15 PM New Enforcement Priorities Anyone who is already removable, and Convicted of any crime Charged with any crime (whether or not still pending?) Committed acts that constitute crime © 2007 Microsoft Corporation. All rights reserved. Microsoft, Windows, Windows Vista and other product names are or may be registered trademarks and/or trademarks in the U.S. and/or other countries. The information herein is for informational purposes only and represents the current view of Microsoft Corporation as of the date of this presentation. Because Microsoft must respond to changing market conditions, it should not be interpreted to be a commitment on the part of Microsoft, and Microsoft cannot guarantee the accuracy of any information provided after the date of this presentation. MICROSOFT MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AS TO THE INFORMATION IN THIS PRESENTATION.

New Enforcement Priorities (cont.) 10/12/2017 11:15 PM New Enforcement Priorities (cont.) Anyone who is already removable, and Final order but failed to deport Fraud or misrepresentation on any matter or application with govt agency Abused public benefits program Any immigration officer thinks public safety or national security risk © 2007 Microsoft Corporation. All rights reserved. Microsoft, Windows, Windows Vista and other product names are or may be registered trademarks and/or trademarks in the U.S. and/or other countries. The information herein is for informational purposes only and represents the current view of Microsoft Corporation as of the date of this presentation. Because Microsoft must respond to changing market conditions, it should not be interpreted to be a commitment on the part of Microsoft, and Microsoft cannot guarantee the accuracy of any information provided after the date of this presentation. MICROSOFT MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AS TO THE INFORMATION IN THIS PRESENTATION.

Impact on noncitizen clients with criminal histories 10/12/2017 11:15 PM Impact on noncitizen clients with criminal histories Most significant change for those without lawful status Be careful about filing applications Preserve DACA & TPS eligibility New diplomatic pressure and repatriation agreements? Increased use of expedited removal, IRH, admin removal? DACA-still try to preserve if they have it. Renew only with atty. Don’t apply now for first time TPS-try to preserve Cape Verde now starting to remove people © 2007 Microsoft Corporation. All rights reserved. Microsoft, Windows, Windows Vista and other product names are or may be registered trademarks and/or trademarks in the U.S. and/or other countries. The information herein is for informational purposes only and represents the current view of Microsoft Corporation as of the date of this presentation. Because Microsoft must respond to changing market conditions, it should not be interpreted to be a commitment on the part of Microsoft, and Microsoft cannot guarantee the accuracy of any information provided after the date of this presentation. MICROSOFT MAKES NO WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AS TO THE INFORMATION IN THIS PRESENTATION.

More litigation against the executive orders Sanctuary Policies Cities of Chelsea and Lawrence v. Trump Civil Rights Litigation Clearinghouse, University of Michigan Law School has all litigation involving the EOs https://www.clearinghouse.net/featuredCase.php?id=40

Immigration detainer litigation Commonwealth v. Lunn, SJC-12276 (to be argued 4/4/17) Do the courts and local law enforcement have authority to hold someone on an ICE detainer for civil immigration purposes? Does detention on an ICE detainer without judicial supervision or particularized finding of PC violate the 4th A and art. 14? Does detention on an ICE detainer without notice and opportunity to challenge it violated the 14th A and art. 12?

Post-conviction relief – the only hope? For many noncitizen clients, criminal convictions either make them deportable or bar any potential relief from deportation Post-conviction relief may be the only way to avoid deportation For CPCS post-conviction panel attorneys, volunteer to screen these cases!!! This is true for both lawful and unlawful immigrants

Immigration Related Post Conviction Relief PCR Motions to Revise and Revoke (Rule 29) Motions for New Trial (Rule 30)

Revise and Revoke Rule 29 motion is used when the sentence, not the conviction, is what has caused immigration problems. Ex: Larceny with a 1 year sentence is AF Larceny with 364 day or less sentence is not AF

Rule 30 motions for new trial Padilla/Clarke or 278/29D motions Used when the conviction itself causes immigration consequences EX: conviction for distribution of a controlled substance

SJC crim-imm caselaw updates Padilla retroactivity Commonwealth v. Mercado, 474 Mass. 80 (2016) – Padilla retroactive to pleas or trials that occurred on or after April 24, 1996

SJC crim-imm caselaw (CONT.) 278, §29D prejudice standard Commonwealth v. Valdez, 475 Mass. 178 (2016) - for client who is inadmissible due to a criminal conviction, can show more than a hypothetical risk of exclusion (per Grannum) by showing: bona fide desire to leave the country and reenter, and if defendant did so, there would be substantial risk that defendant would be excluded because of conviction

Novel crim-imm litigation issues??? CPCS Immigration Impact Unit at iiu@publiccounsel.net The AILA-New England Chapter Federal Litigation Project