Excerpts from Arizona V. US

Last week the Supreme Court heard arguments in the case Arizona, et. al, v US concerning the god-awful Arizona immigration law SB 1070. You can now read the whole transcript online, but in case you're not in the mood to read the whole, depressing thing, I thought I would provide some salient excerpts below.

The first issue that the justices really pounced on was the section of the law pertaining to holding a person for suspected immigration violation. The justices were concerned that the time taken to check on the suspect's immigration status could result in them being imprisoned for unreasonable stretches of time, and Paul Clement, atty for Arizona, emphasized that length of imprisonment would still be governed under the 4th amendment.

"JUSTICE GINSBURG: But how would the State officer know if the person is removable? I mean, that's sometimes a complex inquiry.
MR. CLEMENT: Well, Justice Ginsburg, I think there's two answers to that. One is, you're right, sometimes it's a complex inquiry, sometimes it's a straightforward inquiry. It could be murder, it could be a drug crime. But I think the practical answer to the question is by hypothesis, there's going to be inquiry made to the Federal immigration authorities, either the Law Enforcement Support Center or a 287(g) officer.
And presumably, as a part of that inquiry, they can figure out whether or not this is a removable offense, or at least a substantially likely removable offense.
JUSTICE KENNEDY: Suppose it takes 2 weeks to make that determination, can the alien be held by the State for that whole period of time -MR.
CLEMENT: Oh, I don't think -
JUSTICE KENNEDY: -- just under section 6?
MR. CLEMENT:I don't think so, Your Honor, and I think that, you know, what -- in all of these provisions, you have the Fourth Amendment backing up the limits..."

Next, Clement had a chance to make his argument on federal preemption. Whenever states get into areas of governance that usually dominated by the federal government, there is the potential for a claim that the federal law "pre-empts" and overrules the state level law. Let's see Clement's argument.

"I do think as to section 3, the question is really -- it's a provision that is parallel to the Federal requirements, and imposes the same punishments as the Federal requirement.
So it's generally not a fertile ground for preemption. But of course, there are cases that find preemption even in those analogous circumstances. They're the cases that the government is forced to rely on."

He then goes on to differentiate the AZ law from the ones in other federal preemption cases that the government is likely to bring up. However, the gist of the argument is always that the law is duplicated, so its hard to say that it conflicts with the federal requirements.

"And so I think the right analysis is really the analysis that this Court laid out in its Whiting decision, which says that in these kinds of cases, what you look for is whether or not the State scheme directly interferes with the operation of the Federal scheme."

Next up to bat we had the atty for the government, our hero Donald Verrilli. Verrilli comes out immediately with the main federal preemption argument:

"GENERAL VERRILLI: Mr. Clement is working hard this morning to portray S.B. 1070 as an aid to Federal immigration enforcement. But the very first provision of the statute declares that Arizona is pursuing its own policy of attrition through enforcement, and that the provisions of this law are designed to work together to drive unlawfully present aliens out of the State.
That is something Arizona cannot do, because the Constitution vests exclusive -JUSTICE
SOTOMAYOR: General, could you answer Justice Scalia's earlier question to your adversary? He asked whether it would be the Government's position that Arizona doesn't have the power to exclude or remove -- to exclude from its borders a person who's here illegally.
GENERAL VERRILLI: That is our position, Your Honor. It is our position because the Constitution vests exclusive authority over immigration matters with the national government."

After the assist from Sotomayor, Verrilli spends the rest of the time getting picked apart by Roberts and Scalia.

CHIEF JUSTICE ROBERTS: You think there are individual cases in which the State can call the Federal Government and say: Is this person here illegally?
GENERAL VERRILLI: Yes, certainly. But that doesn't make -CHIEF
JUSTICE ROBERTS: Okay. So doesn't that defeat the facial challenge to the Act?

Problematically for the government, they didn't rely on the possibility of racial profiling as a reason to challenge the law, although that was the constant "elephant in the room" of the argument.

GENERAL VERRILLI: ... Now, we are not making an allegation of racial profiling. Nevertheless, there are already tens of thousands of stops that result in inquiries in Arizona, even in the absence of S.B. 1070. It stands to reason that the legislature thought that that wasn't sufficient and there needed to be more.
And given that you have a population in Arizona of 2 million Latinos, of whom only 400,000 at most are there unlawfully -

JUSTICE SCALIA: Sounds like racial profiling to me.

From here, it gets really messy. After failing to sell the preemption claim (Scalia and Roberts interpreted the Arizona statute as "helping" the federal government) Verrilli focused on the foreign relations aspect.

VERRILLI: What they're going to do is engage, effectively, in mass incarceration, because the obligation ...[is]...to enforce Federal immigration law, which is what they claim they are doing .... And so -- so you're going to have a situation of mass incarceration of people who are unlawfully present. That ... poses a very serious risk of raising significant foreign relations problems.And these problems are real. That is the problem of reciprocal treatment of United States citizens in other countries.
JUSTICE KENNEDY: So you're saying the government has a legitimate interest in not enforcing its laws?
GENERAL VERRILLI: No.

UGH. As we can see, this did not turn out well. The real problem at stake in SB 1070 is that police can just pull over any Latino, incarcerate them for a while and ask the government to figure out their immigration status. Problematically, due to VAWA, TPS, and asylum, this isn't always the straightforward question that one might think. So, because of our complex immigration laws in combination with this terrible statute, the result is a situation that allows for the incarceration and punishment of a section of the population to the extent that, even if they are legally here, they won't want to live in Arizona any more. And that is the point of the law. "Attrition through enforcement."


Harassing and annoying every Latino citizen of Arizona is racist, inhumane, and embarrassing for the US. But is it unconstitutional? Its going to take some fancy footwork to make that claim from the arguments in this case.

Who are Kuwait's Stateless?

Source: Arabian Business

At the end of a year dominated by a profound upswing in attention to statelessness, Kuwait's stateless Bidoons (alt.  Bedoun, Bidun) have seized the day to protest an untenable situation in their country, one that has stretched almost half a century. Not being well-informed on Kuwaiti history, I would point those interested to the following sources, which I have been following to get information on the continuing protests and legal battles.

• As usual, Open Society is up on any emerging human rights issue seemingly anywhere, and thus this concise introduction to the Bidoon by blogger Sebastian Kohn is a good place to start.

• "Prisoners of the Past: Kuwaiti Bidun and the Burden of Statelessness" a recent report by Human Rights Watch, includes background and recommendations.

• Mona Kareem's blog has great coverage and links from a Kuwaiti Bidun freelance journalist/ poet.

• Lebanon's Daily Star has been following daily developments, as has Arabian Business, and to a lesser extent Al Jazeera.

• And of course, for the most up-tp-date news, you can always turn to the twitter machine: try hashtags #Kuwait, #Bidoon and naturally, #Stateless

Please feel free to leave any additional good sources in the comments. Meanwhile, I offer my solidarity to the stateless Bidoons of Kuwait, and hope that the government and the Kuwaiti people will see the light before anyone else has to get hurt.

Two New Lawsuits Shed Light on Immigrant Injustice in the States

On the same day last week two major non-profit organizations filed suit in the US over fairly shocking circumstances relating to immigrants and refugees. If they win, we could see some excellent new case law on immigrant rights. Here's a quick run-down.

Florida Tuition Inequality
In Ruiz v. Robinson (complaint) the Southern Poverty Law Center is suing the Florida Board of Education for a policy that, according to the suit, "treat[s] United States citizen students who reside in Florida as “non-residents” solely because their parents are undocumented immigrants." The effect of this policy is to hike tuition prices up to out-of-state rates (i.e., triple the cost for residents), and moreover, to discourage children of undocumented immigrants from attending college. Here's an example of the effect of the policy, as seen through plaintiff Caroline Roa:

...After Caroline was accepted to Miami Dade College, school officials informed her that she did not qualify for in-state tuition, even though she had resided in Miami-Dade County since birth. School officials explained to Caroline that her residency for tuition purposes was based on her father’s legal residence. Because Caroline could not show proof of her father’s legal immigration presence in the United States, she could not qualify for in-state tuition rates. Unable to afford non-resident tuition rates, Caroline has not enrolled in college. Instead, she works two jobs in the hope of one day being able to afford college.

Interestingly, the class action suit takes a dual legal track- SPLC challenges the policy under the 14th amendment's equal protection clause, but they also bring a federal preemption claim under the Supremacy Clause. In other words, they argue Florida's attempts to deny residency to the children of undocumented immigrants represents an impermissible attempt to regulate immigration- a field squarely within the exclusive domain of the federal government.

In my opinion, the equal protection argument is a slam dunk- these children are clearly being treated differently then other similarly situated children on the basis of their parent's immigration status... its going to be difficult for Florida to come up with a compelling justification for that which makes logical sense. The federal preemption argument, on the other hand, is a touchy subject. It has been a bumpy road for cases using this claim before, and now more than ever, with so many pending challenges to state statutes regulating immigration in some way, it will be interesting to see how the argument fares. One could suspect this case makes the point clearly, that when states try to regulate immigration they end up doing things that hurt citizens as well as non-citizens.

Sex Abuse in Immigration Detention
The second case is being brought by the ACLU against a Texas corrections facility, workers there, and the ICE for allegations of sexual assault against immigrants detained there. (Oy.) Essentially, the ACLU found hundreds of such allegations after filing a Freedom of Information Act request with ICE and Homeland Security. Although such allegations were found in every state, Texas had by far the most, and is thus the focus of the suit. An example of one of the stories can be found here. (Warning: graphic.)

Even more tragically, the plaintiffs named in the suit were asylum seekers escaping sexual violence in their home countries. It is ridiculous that people have to face this additional hardship in detention centers and it is obviously a violation of their human rights and basic tort law. I think this case will have no problem succeeding, but it remains to be seen how to protect the thousands of immigrants in custody all over the US from such horror. One way may be a legislative angle- extending the Prison Rape Elimination Act to immigrant detainees. The Act, passed by President Bush in 2003, establishes a national commission to prevent prison rape, assists with data sharing, and makes prevention a major priority for each prison system-- except for in immigration detention.

Here is a petition from the ACLU to President Obama asking them, as a first step, to extend the Prison Rape Elimination Act to all prisoners in the US: "President Obama: Protect Women Held in US Custody from Rampant Sexual Abuse"

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What these two cases have in common is that they focus on rather non-contentious ways of preventing discrimination against immigrants. After all, the first case actually focuses on US citizens (though it arguably helps their undocumented parents), and the second reiterates a minimum standard for detention that should not even really be at issue, bodily integrity. There are much deeper problems facing the  American immigration system at the moment, but these two cases will hopefully be big wins that pave the way for more aggressive strategies in the fight to protect undocumented immigrants.

Nubians in Kenya- New Case on Birth Registration

Nubian family, ca. 1940, via Nubians in Kenya

There has recently been a very interesting case to come out of Africa that deals with the persistent refusal of the Kenyan government to recognize the nationality of a minority group that has been present in the country for almost a century. The case, Nubian Minors v. Kenya, was brought to the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) by the Institute for  Human Rights and Development in Africa along with the Open Society Justice Initiative. The ACERWC is an institution that deals with interpreting and deciding on issues related the OAU's African Charter on the Rights and Welfare of the Child, Africa's answer to the Convention on the Rights of the Child.

Like the CRC, the African Charter provides explicit nationality and legal personality rights for children. Article 6 requires that every child is entitled to a name, a nationality, and birth registration. Further, children who would otherwise be stateless are entitled to the nationality of the country in which they are born. The Nubian Minors case was brought under these provisions, along with the non-discrimination clause and several other collateral clauses.

Nubians from KAR

The Facts

The story of the Nubians of Kenya is old and interesting. Apparently, this group came from the Nuba mountains in present-day Sudan, and were forcibly conscripted by the British in the 19th century into the King's African Rifles. After service, they requested to be sent back to Sudan, but were instead allocated land in Kenya, namely, Kibera, right outside of present-day Nairobi. Next best thing, right? Wrong.

Now here is the tricky part: having been moved to Kenya, most of these people held no Kenyan citizenship. The British also refused to grant citizenship. At the time of Kenyan independence, in 1963, nothing about the Nubians was settled- they were still considered aliens by the government, who also refused to recognize Nubian title to the Kibera settlement. To make matters worse, these status problems were passed by the Nubian Kenyans down to their children. It is allegedly difficult in Kenya to register children in the absence of the parent's identity documents (which as we know, many people of Nubian descent do not possess.) And other human rights organizations have noted discriminatory practices in birth registration, such as refusing to issue a birth certificate. Further, children in Kenya do not receive proof of citizenship until the age of 18, at which point many children of Nubian descent find the fairly straight-forward procedure to verfiy their nationality complicated by discriminatory procedural barriers and delays. The result? Generations of legally invisible and de facto stateless people.

The Case

After considerable efforts to obtain remedies at the state level (see section 15-22 of the Decision) the applicants were able to have the case heard on the merits. The first issue the Court considered is whether the ACRWC grants citizenship from birth. While the reading of art. 6(1) doesn't provide a right from birth, taking into consideration the best interests of the child principle, this is a logical reading. Further, statelessness is particularly devastating for children.

Whatever the root cause(s), the African Committee cannot overemphasise the overall negative impact of statelessness on children. While it is always no fault of their own, stateless children often inherits an uncertain future. For instance, they might fail to benefit from protections and constitutional rights granted by the State. These include difficulty to travel freely, difficulty in accessing justice procedures when necessary, as well as the challenge of finding oneself in a legal limbo vulnerable to expulsion from their home country. Statelessness is particularly devastating to children in the realisation of their socio-economic rights such as access to health care, and access to education. In sum, being stateless as a child is generally antithesis to the best interests of children. (at 46)

 Having said that, the Committee considered several possible arguments by Kenya. First, the fact that some Kenyans of Nubian descent had acquired citizenship through the normal legal procedure. The Committee considered that this did not destroy the central argument, that a significant portion had not, which would be enough to violate their obligation. Second, Kenya could have argued that the Nubian children may be entitled to Sudanese citizenship. In this case, the Committee responded, the government could have tried to cooperate with Sudan to facilitate such granting of nationality, but there was no evidence that they had done so (at 51). In sum, they had violated their obligation to provide children with nationality, birth registration, and to help them avoid statelessness, all in violation of the key provisions of Article 6.

As to the discrimination claim under ACRWC art. 3, the Court found prima facie discrimination. The government's absence made it impossible for them to meet the burden of proof with evidence that the discrimination served a legitimate end, however the Court looked for explanations, and in the end relied on findings by the Kenyan National Commission on Human Rights, that  

“the process of vetting… Nubians… is discriminatory and violates the principle of equal treatment. Such a practice has no place in a democratic and pluralistic society” (at 56)

 In the subsequent paragraphs the Court found that these violations also deprived the Kenyan children on Nubian descent of their right to health and their right to education. In other words, positive findings on all fronts for the applicants.

Follow Up

Of course, it remains to be seen what the impact of the case will actually be on affected communities. Kenya was instructed to come up with an implementation plan, which would have to include some legal mechanisms to register extant stateless minor  Nubians as Kenyan, as well as a method of birth registration and subsequent acquiring of citizenship that is non-discriminatory and functioning.

In the meantime, lawyers have some excellent new case-law. This case speaks to, specifically:

• the fact that statelessness is not "in the best interests of the child"
• the link between birth registration and preventing statelessness
• the impact of statelessness and legal invisibility on the ability of a child to access his health and education rights
• additional barriers to birth registration and citizenship on the basis of ethnicity/ origin of parents can constitute discrimination.

All in all a big win, and a situation that lawyers interested in statelessness and legal invisibility will definitely want to keep an eye on.

You can read more on the case here: Open Society Justice Initiatives- Nubian Minors v. Kenya

And for a cool multi-media website on Kenya's Nubians, check out this online exhibit by Greg Constantine: Kenya's Nubians- Then and Now