Friday, March 4, 2016

An Afternoon with José Padilla and Friends



It's not often one has the opportunity to shake hands with the victor of a Supreme Court case. Yesterday, many of us did just that.  José Padilla, of Padilla v. Kentucky, 130 S.Ct. 1473 (2010), spoke to students, faculty and guests at the Crimmigration Law Lecture event at the University of Denver Sturm College of Law, organized by Prof. César Cuauhtémoc García Hernández and Prof. Christopher Lasch.

The afternoon began with a keynote by UC Davis School of Law Dean Kevin Johnson, recapping his forthcoming Case Western Law Review article, Doubling Down on Racial Discrimination: The Racially Disparate Impacts of Crimmigration Law.

Next, Mr. Padilla recounted his ordeal, followed by commentary from Prof. Lasch, Prof. Yolanda Vázquez and Denver crimmigration lawyer extraordinaire, Hans Meyer.  The video is here.

Finally, the day wrapped with a panel on the essential element of race in crimmigration, with Prof. Vázquez, and Prof. Linus Chan, moderated by Dean Kevin Johnson.  The video is here.

Did Padilla solve the 6th amendment crimmigration problem?  Not by a long shot.  See, e.g., The Pressure is On - Criminal Defense Counsel Strategies After Padilla v. Kentucky, by Bill Ong Hing.

Many thanks to Prof. García Hernández, Prof. Lasch, José Padilla and all the panelists, participants and planners.  Stay tuned for more.

- Dan Kowalski, Bender's Immigration Bulletin (LexisNexis)

@dkbib on Twitter, www.bibdaily.com

Contact: dk@justnews.org or text/call 512-826-0323.

Thursday, March 19, 2015

Kowalski's 'Short' List

Selected resource guide for
IJJ "Border Justice / Heartland / Immigrant Families" Fellows/Faculty/Students
Provided by Daniel M. Kowalski
Editor-in-Chief, Bender’s Immigration Bulletin (LexisNexis)

 (Page last edited March 19, 2015)





Mae Ngai, Impossible Subjects: Illegal Aliens and the Making of Modern America, 2004, Princeton University Press.








LexisNexis Immigration Law Community
   (use RSS feed or sign up for free daily email updates)

IJJ Website

IJJ News on Twitter @IJJNews

Bender's Immigration Bulletin - print/Lexis (technical journal)

Roy Germano's documentary: The Other Side of Immigration
Call or text me: 512-826-0323


(Page last edited Mar. 19, 2015)

Sunday, November 13, 2011

Unauthorized vs. Illegal - Kowalski vs. Aliseda

Right now these are behind the Texas Weekly paywall, but next Tuesday (11-15-11) they will go public (free) on the Texas Tribune site.

Call them 'Unauthorized' - by Daniel Kowalski
Description: http://d2o6nd3dubbyr6.cloudfront.net/media/images/Dkowalski-lawBG_jpg_312x1000_q100.jpg
To paraphrase the very model of the modern Dr. Strangelove, Donald Rumsfeld, "Would the world come to an end if we stopped using the term, 'illegal immigrant?' Answer: No." Neither would the world end if the news media kept right on using it forever, as the Associated Press prefers. It may not be all that important, in the scheme of things, but words do matter, and people do take sides on this issue, so here's my take.

The adjective "illegal" generates pejorative, negative reactions in the listener or reader. As Keith Cunningham-Parmeter explains, "human beings view the world in metaphoric terms... through metaphor, the immigrant becomes the alien, the alien becomes the illegal, and the illegal becomes the Mexican. ...[R]eferring to ... people as "illegal aliens" is equivalent to referring to defendants awaiting trial as 'convicted criminals.'"

To the question, What part of "illegal" don't you understand? I answer, every bit of it, including the distinction between jaywalking and murder, between littering and grand theft; in short, between malum prohibitum and malum in se, that is, the things we've decided to regulate vs. the things we all agree are evil.
Let's apply a little nuance and ask ourselves: Is the frail asylum-seeker fleeing political oppression in her home country just as much an illegal alien as the tough guy who has been deported three times for violent criminal convictions? How about the Japanese business executive who overstays his visitor's visa by one day? By a week? By a year? "[N]early half of all people described as 'illegal aliens' obtained their 'illegal' status by overstaying valid visas — a civil immigration violation that involves no criminal conduct whatsoever," Cunningham-Parmeter writes. Or how about the green card holder who has lived the life of the model immigrant for twenty or thirty years, only to pick up a single speeding ticket? Does the speeding ticket instantly and magically transform her into an evil 'illegal alien?' The state of Alabama has just enacted the toughest local immigration law on the books, and following its provisions some utility companies have begun to deny water and electric service to unauthorized immigrants. But why stop there? Why not enact a law to deny service to every adult in Alabama ever convicted of domestic violence? After all, what part of "illegal" don't you understand? Wouldn't driving the wife beaters from Alabama do more good than banishing its tomato pickers?

You'll notice I used the term "unauthorized." I prefer that to "undocumented" because, to be honest, many unauthorized aliens do indeed have documents — fake ones. Plus, unauthorized sends a clear message that something is wrong, without diving into the lake of punitive, pejorative metaphors. "[M]etaphors that attempt to capture the essence of immigrants will inevitably miss the mark and therefore distort," Cunningham-Parmeter writes. And, perhaps most importantly, "unauthorized" suggests the possibility of change, the ability of an authority (Congress) to change the legal status of the migrant. Even under today's statute, an unauthorized migrant may, through court order or agency decision, be granted relief from deportation through such means as asylum, cancellation of removal, and T and U visa statuses. From illegal to legal by the stroke of a pen.

Interestingly, in a break with some of my liberal kin, I don't mind the use of the word alien, for two reasons: it's part of the statute (a term of art, as we lawyers say) and I'm old enough to remember a time before space travel, when alien simply meant foreigner, rather than a dangerous green being from another galaxy. Also, I had the good fortune to learn a second language (Spanish) at a very early age, and my family traveled often to Mexico; foreign was not alien to me. Travel abroad and second language learning are excellent ways of defusing the otherness bug.

In the end, whether we use the word illegal or unauthorized, alien or migrant, or whether we "call it a banana," the only thing that matters is whether, and when, we enact meaningful, and comprehensive, immigration reform. Toward that end, let's use language that's helpful rather than harmful.

- Daniel M. Kowalski has been practicing immigration law since 1985. He edits Bender's Immigration Bulletin and curates the LexisNexis Immigration Law Community, a free daily blog.

Call Them 'Illegal' - by Rep. Jose Aliseda
Description: Jose Aliseda

I have been asked how to refer to people who are in this country illegally — as illegal aliens or by a softer term such as undocumented immigrants. I suppose as a legal immigrant to this country at the age of four, I might have a different perspective than someone who has not had at least part of those terms applied to them during their life. I remember growing up being referred to as a green card alien or a registered alien and being somewhat embarrassed by the term “alien” as if I was a little green man.

But I am a United States citizen now and I have been a licensed attorney for 28 years. As an attorney, I have been trained that words in the law have meaning and definitions. I have been licensed to practice in federal court for 23 years. I have represented, by court appointment, many persons charged with illegally re-entering this country after deportation. In the United States Code, wherein this nation’s laws are codified, persons who are here illegally are called “illegal aliens.” So it is, for example, that you can have a statute titled “8 U.S.C. § 1365: US Code - Section 1365: Reimbursement of States for costs of incarcerating illegal aliens and certain Cuban nationals.”

Referring to persons, things, and matters in their proper legal terms and common definitions is very important for a lawyer and should be important for a layperson and society as a whole. This is supposed to be a nation of laws after all. That is why, as a conservative, I am extremely frustrated by the liberal political correctness movement, supported by the “style books” of the liberal media, which is devoted to promoting an alternative terminology that seeks to assert a more positive aspect to negative or undesirable qualities. For example, those that are pro-abortion rights are referred to in some publications as “pro-choice.” Or those who are professional political agitators are referred to as “community organizers.”

Make no mistake about it, those political parties, organizations, and persons that sympathize with, exploit, or pander to people illegally in this country are using today’s hyper-politically correct culture to try to change the term “illegal alien” to something that does not contain the negative connotations of the word “illegal.” The word “illegal” is an adjective and means something is prohibited by law and/or involving or being a crime. By slowly removing that term, and to a certain extent the word “alien,” which also carries with it a somewhat negative connotation, from our nation’s vocabulary, and substituting a euphemism such as “undocumented immigrant,” or “undocumented person,” they hope to change the public’s acceptance of persons here illegally.
I, for one, will continue to use the term “illegal alien,” to refer to persons who are unlawfully here, and I hope and pray that American society soon wakes up and rejects the political correctness movement before it blurs all the lines between right and wrong and destroys our country from within. 

- Jose Aliseda, R-Beeville, represents District 35 in the Texas House of Representatives.

Monday, November 7, 2011

Dr. Strangeword or: How I Learned to Stop Worrying and Love "Unauthorized"

To paraphrase the very model of the modern Dr. Strangelove, Donald Rumsfeld, "Would the world come to an end if we stopped using the term, 'illegal immigrant?'  Answer: No."  Neither would the world end if the news media kept right on using it forever, as the Associated Press prefers.  It may not be all that important, in the scheme of things, but words do matter, and people do take sides on this issue, so here's my take.

The adjective 'illegal' generates pejorative, negative reactions in the listener or reader.  As Keith Cunningham-Parmeter explains, "human beings view the world in metaphoric terms...through metaphor, the immigrant becomes the alien, the alien becomes the illegal, and the illegal becomes the Mexican. ...[R]eferring to ... people as "illegal aliens" is equivalent to referring to defendants awaiting trial as 'convicted criminals.'"

To the question, "What part of 'illegal' don't you understand?" I answer, "Every bit of it, including the distinction between jaywalking and murder, between littering and grand theft; in short, between malum prohibitum and malum in se, that is, the things we've decided to regulate vs. the things we all agree are evil."  Let's apply a little nuance and ask ourselves: Is the frail asylum-seeker fleeing political oppression in her home country just as much an 'illegal alien' as the tough guy who has been deported three times for violent criminal convictions?  How about the Japanese business executive who overstays his visitor's visa by one day?  By a week?  By a year?  "[N]early half of all people described as 'illegal aliens' obtained their 'illegal' status by overstaying valid visas--a civil immigration violation that involves no criminal conduct whatsoever."  Or how about the green card holder who has lived the life of the model immigrant for twenty or thirty years, only to pick up a single speeding ticket?  Does the speeding ticket instantly and magically transform her into an evil 'illegal alien?'  The state of Alabama has just enacted the toughest local immigration law on the books, and following its provisions some utility companies have begun to deny water and electric service to unauthorized immigrants.  But why stop there?  Why not enact a law to deny service to every adult in Alabama ever convicted of domestic violence?  After all, "What part of 'illegal' don't you understand?"  Wouldn't driving the wife beaters from Alabama do more good than banishing its tomato pickers?

You'll notice I used the term 'unauthorized.'  I prefer that to 'undocumented' because, to be honest, many unauthorized aliens do indeed have documents...fake ones.  Plus, 'unauthorized' sends a clear message that something is wrong, without diving into the lake of punitive, pejorative metaphors.  "[M]etaphors that attempt to capture the essence of immigrants will inevitably miss the mark and therefore distort."  And, perhaps most importantly, 'unauthorized' suggests the possibility of change, the ability of an 'authority' (Congress) to change the legal status of the migrant.  Even under today's statute, an unauthorized migrant may, through court order or agency decision, be granted relief from deportation through such means as asylum, cancellation of removal, and T and U visa statuses.  From 'illegal' to legal by the stroke of a pen.

Interestingly, in a break with some of my liberal kin, I don't mind the use of the word 'alien,' for two reasons: it's part of the statute (a 'term of art,' as we lawyers say) and I'm old enough (57) to remember a time before space travel, when alien simply meant foreigner, rather than a dangerous green being from another galaxy.  Also, I had the good fortune to learn a second language (Spanish) at a very early age, and my family traveled often to Mexico; 'foreign' was not 'alien' to me.  Travel abroad and second language learning are excellent ways of defusing the 'otherness' bug.

In the end, whether we use the word 'illegal' or 'unauthorized,' 'alien' or 'migrant,' or whether we "call it a banana," the only thing that matters is whether, and when, we enact meaningful, and comprehensive, immigration reform.  Toward that end, let's use language that's helpful rather than harmful.

-----------------------

Daniel M. Kowalski has been practicing immigration law since 1985.  He edits Bender's Immigration Bulletin and curates the LexisNexis Immigration Law Community, a free daily blog.

Sunday, September 25, 2011

BIB - Daily Edition Gets An Upgrade

Dear BIB - Daily Edition Readers,

Over the past six years you have elevated BIBDE from an obscure blog to a recognized "voice" in the immigration news world.  Now, I am pleased to announce that on Monday, October 3, 2011, BIBDE will "upgrade" and migrate to a new and much more powerful platform: the LexisNexis Immigration Law Community.  Whereas before I labored alone, now I will be joined by several skilled technical and legal professionals from LexisNexis and beyond.

The new Community features a variety of content and resources including all of the BIB - Daily Edition content.  The site will feature blogs, podcasts, and commentary from leading immigration law professionals alongside LexisNexis resources such as Immigration Law & Procedure, Bender's Immigration Bulletin and the entire lineup of LexisNexis Matthew Bender immigration publications.

With the launch of this new resource, we will be transitioning users of BIBDE to the LexisNexis Immigration Law Community where you will be able to view all of the same content and more.  BIBDE will redirect to the LexisNexis Immigration Law Community beginning on October 3, 2011.  On that Monday  you will also begin receiving Daily Email Newsletter Alerts from the Immigration Law Community.

The Alerts will contain the same BIB Daily content that you’ve been receiving with the opportunity to include additional content from the Immigration Law Community.


To add additional content to your Daily Newsletter Alert, you will first need to activate your Immigration Law Community account by resetting your password on the following page: http://www.lexisnexis.com/community/immigration-law/user/emailforgottenpassword.aspx  Please use the email address that is associated with your BIB -Daily Edition subscription.


Once you’ve entered your email address and clicked on the “Recover Password” button, you’ll receive a confirmation via email within 15 minutes.  The email confirmation will provide instruction on resetting your password and will direct you back to the Immigration Law Community where you can sign in using your email address and newly established password.


Once you have signed into the Immigration Law Community, you can navigate to the Newsletter page and add additional content to your alert from the Immigration Law Community as well as the other 17 LexisNexis Community sites.




We are excited to bring this new experience to you and we look forward to hearing your feedback.  Change can bring challenges, and the new platform is a work in progress, so please let me know how the transition is working for you, and how we can make your ILC experience more rewarding.

Many thanks,

Daniel M. Kowalski

Sunday, January 23, 2011

Free Speech for GIs: Not a Review

Actor Howard Petrick is married to my cousin, Nora Danielson, and I'm not a credentialed theater critic, so this is not a review of Petrick's current one-man show, "Rambo: The Missing Years," finishing a one-week run in Austin today.


But here are my thoughts anyway.


Today's war critics in uniform have access to the web, but in 1968 they had only telephone, snail mail, and outside supporters with mimeograph machines.  When Petrick was drafted, his political views were not yet fully formed, but he knew going to Vietnam was a bad idea.  His grinding, irritating, low-tech but fully legal resistance to Army indoctrination landed him perilously close to a court martial charge for treason.  Saved by good lawyers, outside supporters and print and broadcast media fascinated by the story of a lone G.I. at Fort Hood, Texas, fighting for his free speech rights, Petrick ended up being booted out of the Army with an "undesirable" discharge.  His lawyers later litigated that label, forcing the Army to upgrade the discharge to "honorable."  (I'll try to obtain copies of those court records and post them here later.)


I'm honored to know Petrick, and thankful that all these years later, using the stage, he's still fighting for free speech for GIs...and for all of us.

Wednesday, July 28, 2010

No Whining

Now that Judge Bolton has ruled on USA v. Arizona, enjoining the four most egregious provisions on preemption grounds, there will be days of harrumphing and bellowing by States' Righters, Tea Partiers and other Assorted Grumpy Volk.  A travesty, they will cry.  It must be overturned on appeal, they will shout.

Instead, I recommend they just read the darn thing and then pipe down.

The decision is straightforward and unsurprising.  Con law 101 stuff.  It's sure to be upheld by the Ninth Circuit.  The only Rumsfeldian Unknown is whether the Grumpies can raise enough money to send an army up to the Supreme Court.  With Roberts at the helm, all bets are off.

Stand by for days and weeks of turgid, detailed analysis by Really Smart Lawyers.  Meanwhile, change happens.  Get over it.  No whining.

Daniel M. Kowalski has been practicing immigration law for over 25 years, which is why he has gray hair and Little Patience for whiners.