Dear AILA Santa Clara Valley Chapter Members,

Citizen Participation in Democracy

Washington D.C. is extremely beautiful this time of year and we were met with great weather, cherry blossoms that are stunning and the hustle bustle of our Nations capital. As I have shared in the past, I did not grow up with democracy, although “democratic” was in the official title of my country of origin and most dictatorial countries. The idea is that all power comes from the top, it is unfettered, and the only responsibility/duty citizens have is to accept and make do. That is why corruption becomes a way of survival. People’s attempts to question, demand, try and get some thing done is met with a consequence ranging from denial of benefits to arrest, and even death. Hence citizens never believe that they can express themselves in ways that effect change. Thank God for the United States of America. National Day of Action is a reminder for folks that for all the due process violations that our clients are facing, for all the policy changes, arbitrary and capricious decisions, we have an opportunity to do something about it and great allies in Congress to help us. Citizen participation in democracy is a sacred privilege that we should exercise often and encourage our clients to do the same. Our representatives work for us and the power is in us to direct them to serve our interests.

We got to meet with Congresswoman Zoe Lofgren and got our picture with Congresswoman Anna Eshoo. We were prepared with political talking points, good materials as resources, above-all our subject-matter expertise coupled with an amazing real-life example of a DACA recipient who, by all counts, is the kid you wish your daughter will bring home to introduce you to. We also had a wonderful young woman, a high schooler, who is already on the advisory council of Congresswoman Anna Eshoo and dynamic in many ways. So, what does it mean for us as practitioners and our organization?

For AILA Santa Clara Valley Chapter, I am most proud of the close relationships we have established with our representatives using the connections that our members have with them.

I would like to recognize Kalpana Peddibothla, who stepped up in a big way this year. Kalpana started out in this Chapter by expressing an interest in being an Agency liaison, namely ICE. However, early on, in one of my Friday Chair notes, I expressed my desire on forming relationships with our local representatives over a long term and become trusted subject matter experts to help shape policy, pressure agency and opine on pieces of legislation, especially in the business immigration realm. Kalpana responded and we started to brainstorm. Using her personal connection with Ro Khanna a team was assembled under her leadership consisting of Ellen Krengel, Indu Liladar Hathi, Andrew Shackleford and Roujin Mozaffarimehr to meet with Ro Khanna’s office. Kalpana prepared a draft letter which went out under my signature identifying the priorities we have as a Chapter. Congressman Ro Khanna met with us, and since then we have had a series of meetings with his staffer and we are humming along quite well.

I also want to acknowledge Andrew Shackleford, who as you all know is running for the AILA National Board of Governor. His leadership in fashioning the business immigration platform that we have with our representatives as well as doggedly going after Congresswoman Zoe Lofgren to get a meeting.

I also want to acknowledge your incoming Chair Amanda Alvarado Ford, who has taken strong leadership in this area, setting up our meeting with Congressman Jimmy Panetta and leading this area in her disarmingly sweet and effective way.

Ellen Krengel’s presence at NDA was so valuable. She was able to articulate the concerns that H1-B employers are facing and able to frame and present the issue outside the negative publicity and talking points that even Congresswoman Lofgren shares. Experience matters, and I love that she can speak authoritatively to what is happening on the ground in this space.

So, this is where we are in our Chapter. We have met with all our representatives, the folks in Santa Cruz (Doug Keegan, Sean Larkin, Karen Mallory, Jeraline Singh Edwards, Magnolia Zarraga) are working very closely with Congressman Jimmy Panetta, the business immigration folks are working with both Anna Eshoo and Ro Khanna and we have now a bridge to exchange information with Congresswoman Lofgren. Can I say, “Mission Accomplished”? Perhaps, but the reason I am writing to let you know about where we are so that you can start thinking about your clients, who are the ones that we want to highlight to accomplish some of our asks? Congresswoman Lofgren has asked us to give her examples of physicians and nurses on H1-B that have unassailable creds and for us to put forth their compelling stories as the reason why the program should remain. What is happening to our clients is what best illustrates the ailments of the system and the ways to fix it. So, I ask you between now and August, flood my inbox with these stories, the problems and concerns so we can funnel this through to our representatives.

I am skipping national and local happenings this week except to remind you of the various activities on our calendar for the rest of the month. Don’t forget the volunteer opportunities this week and the Judge’s dinner. If you have not already done so, sign up for the CLE on April 25, 2018, and sign-up for the one-on-one session with Reid Trautz on that day. It is an opportunity that I do not want you to miss. So without further ado, here’s Merle’s Corner.

Merle’s Corner

Weekly Updates for Week Ending 4.13.18

It’s been a quiet week at the BIA and in the Ninth Circuit. No decisions came down from the Attorney General (thank goodness) or the BIA. The Ninth Circuit issued an Order directing the parties to file supplemental briefs addressing issues raised by the Supreme Court in its decision Jennings v. Rodriguez, 583 U.S. __, 138 S.Ct. 830 (2018). (The Supreme Court case about the constitutionality of mandatory detention in immigration proceedings). I am going to go in to what the Order says. As I’ve said before, now might be a good time to donate to the ACLU and to thank our very own Holly Cooper (UC Davis Legal Clinic) – both the ACLU and the UC Davis legal clinic, among others, are attorneys of record.

Ninth Circuit

The Ninth Circuit Asked the Parties to Brief Issues About the Propriety of a Class Action Lawsuit for Mandatory Detention Cases and About the Constitutionality of the Mandatory Detention Statutes

The Ninth Circuit directed the parties in Jennings v. Rodriguez to file supplemental briefs answering the questions posed by the Supreme Court. The basic questions are: 1) Are the plaintiffs a proper class? 2) Can there even be class action lawsuits in immigration cases? And, 3) Are the mandatory detention statutes constitutional?

Is a class action lawsuit the proper vehicle for this case and are class action lawsuits statutorily permissible in immigration cases?

The first two issues that the Ninth Circuit wants to look at is whether a class action lawsuit is the appropriate vehicle for this case and are class action lawsuits even allowed under the INA? The first thing we need to do is to go back to law school (or to a bar review course) for a refresher on class action lawsuits. The traditional four requirements for a class action lawsuit are 1) numerosity (joinder of all members is impractical – remember “joinder” is adding all the plaintiffs to a single lawsuit); 2) commonality (questions of law or fact common to the class); 3) typicality (claims or defenses of the representative parties are typical of the claims of the classes); and, 4) adequacy of representation (will the attorneys fairly and adequately represent and protect the interests of the class). The class must meet all four prongs of this test. The Supreme Court in Jennings v. Rodriguez instructed the lower courts to look at whether there is commonality of claims. It appears that they were satisfied that the proposed class met the other prongs of this test. The Supreme Court asked whether there were common claims between the plaintiffs in the class. By way of instruction, the Supreme Court cited to Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). In Wal-Mart Stores, the female employees sued Wal-Mart for gender discrimination. The Supreme Court unanimously held (in an otherwise split decision) that there was no commonality. There was no proof that the defendants engaged in a pattern or practice of discrimination. They said without some “glue” holding together the alleged reasons for the employment decisions, it would be impossible to say that an examination of the class members’ claims would produce a common answer to the crucial discrimination question. The question is whether the plaintiffs in Jennings have common issues.

The second issue, that might be even more important, is does the Ninth Circuit even have jurisdiction over a class action lawsuit? The INA provides that no court, other than the Supreme Court has jurisdiction over injunctive relief with respect to individuals who are in removal proceedings. INA § 242(f)(1). Of course, the unstated question is how is this statute possibly constitutional? If no court has jurisdiction over injunctive relief in immigration proceedings other than the Supreme Court, how do you even get a case to the Supreme Court? Is it constitutional to eliminate class-action relief in immigration cases?

Is the Mandatory Detention Statute Constitutional?

The second area of concern for the Ninth Circuit is, are the mandatory detention statutes even constitutional and under what circumstances are these statutes constitutional? The Ninth Circuit asked the parties to address whether the parties in each subclass were entitled to any relief from prolonged detention. (The subclasses are noncitizens seeking admission to the U.S.; noncitizens who have criminal convictions or are suspected terrorists). It also asked the parties to address whether the burden of proof in detention proceedings shifts to the government after 180 days and what that burden is. The burden issue also includes noncitizens who are statutorily eligible for a bond under INA § 236(a). More specifically, the Ninth Circuit asked the following questions:

  1. Does the Constitution require applicants for admission to the United States who are subject to mandatory detention under INA § 235(b) be afforded bond hearings, with the possibility of release into the United States, if detention lasts more than six months?
  2. Does the Constitution require that criminal or terrorist noncitizens who are subject to mandatory detention under INA § 236(c) be afforded bond hearings, with the possibility of release, if detention lasts more than six months? (Remember that while this phrasing sounds terrifying, we are talking about the LPR mother who shoplifted socks for her children twice – shoplifting is a crime involving moral turpitude; or an LPR with a minor controlled substance offense).
  3. Does the Constitution require the burden of proof to rest with the government in bond hearings where the noncitizen is detained over six months? If the government has the burden, what is the standard? Is it by clear and convincing evidence? By a preponderance of the evidence? And, must bond hearings be afforded every six months?

In other words, in bond hearing for noncitizens detained for more than six months under INA § 235(b) (applicants for admission); INA § 236(c) (criminal noncitizens); or INA § 236(a) (any noncitizen in removal proceedings) is the noncitizen entitled to release unless the government provides by clear and convincing evidence that the noncitizen is a flight risk or a danger to the community? Can the government meet its burden by establishing by a preponderance of the evidence that the noncitizen is a danger to the community or a flight risk? Must the length of the noncitizen’s detention be weighed in favor of release? And, must new bond hearings be automatically afforded every six months?

Again, if you have not donated to the ACLU, today might be a good day to do so. The case is Rodriguez v. Jennings, Nos. 13-56706 and 13-56744 (9th Cir. Apr. 12, 2018).

I will see you all soon!