New Executive Order, Same Illegal Discrimination

Yesterday the Trump Administration released a new executive order, “Protecting the Nation from Foreign Terrorist Entry Into the United States.”  This order revises the infamous “Muslim Ban” executive order from late January, which was blocked by the courts.  We are confident that the courts will similarly block enforcement of the revised executive order.  

The new executive order makes some changes aimed at withstanding court scrutiny, but the basics of the order remain in place – including its illegal discrimination against immigrants from predominantly Muslim countries, without any factual basis in national security needs. (The Administration has stated that the new executive order will advance “the same basic policy outcome” as the prior order.) The Administration’s changes constitute tinkering around the edges, while leaving in place the order’s central, discriminatory purpose and effect.

Following is more detail regarding the new executive order, including a short explanation of legal claims against the order that are likely to be addressed by courts.  We have also included a list of some of the national advocacy organizations advancing legal and non-legal strategies to protect immigrants and refugees from the devastating effects of the Trump Administration’s hasty and baseless actions.

PolicyLink stands with advocates for immigrant communities and families around the world in opposing the discriminatory and needless revision of our nation’s longstanding immigration and refugee programs. To better serve the Equity Network in these challenging times, PolicyLink has added a seasoned public interest attorney, Julian Gross, to our staff. The information below was prepared by Julian, PolicyLink James O. Gibson Innovation Fellow, based in the PolicyLink Oakland office.

Changes in the New Executive Order

The new executive order is drafted more carefully than the prior order, and contains some changes clearly aimed at helping the order withstand court challenge. The new order is somewhat more limited in scope than the prior order: it applies only to individuals who are outside the United States as of March 16, and who do not have or have not recently had a valid visa. In addition, there are explicit exceptions to the new travel ban for many classes of people, including lawful permanent residents, others permissibly in the country, certain dual nationals and diplomats, persons who have already been granted asylum or refugee status, and others. Finally, there is a new “waiver” section, allowing discretionary case-by-case waivers for several other categories of people, including those needing immediate medical care, those who have provided assistance to the U.S. Government, and those working for international organizations, etc.

This narrower version eliminates some situations in which the prior order was obviously overbroad and plainly unrelated to valid security concerns. However, the core provisions of the prior order are still in place, and the majority of the legal claims that were raised in multiple lawsuits challenging the prior order are just as strong with regard to the new executive order. These claims are described below.

Crucially, the legal claim that was the main basis of the nationwide injunction against the prior executive order is not affected by the changes made by the Administration. (The Ninth Circuit upheld a nationwide injunction against the prior order based primarily on a holding that the order violated individuals’ procedural due process rights.) This and other claims are sure to be raised against the new executive order, either in existing cases or in new litigation, on behalf of states and affected individuals. 

Legal Claims Against the New Executive Order

The following legal claims were raised against the January 27 executive order. These and others will likely be raised against the new executive order as well.

  • Equal Protection. The Constitution’s guarantee of equal protection requires “strict scrutiny” of government classifications based on national origin or religion. Strict scrutiny is the highest constitutional standard, making it very difficult for the government to justify its actions and have them upheld by courts.
    • Claim: The executive order explicitly discriminates against individuals based on national origin, without adequate justification.
    • Claim: Based on the choice of countries the executive order targets, the executive order discriminates against individuals based on religion, without adequate justification. Note that the Administration attempted to partially address this claim in the revised executive order by removing the original order’s “religious minority” exemption, which was seemingly aimed at benefitting Christians, given the countries at issue. This claim still applies to other aspects of the new executive order, however, including the choice of countries affected.
       
  • Establishment Clause. The First Amendment prohibits the federal government from establishing a state-endorsed religion, or limiting the free exercise of religion. Government actions that discriminate between religions can be challenged under the establishment clause.
    • Claim: By singling out majority-Muslim nations without legitimate basis, the executive order discriminates between religions, in violation of the establishment clause of the First Amendment.
    • As noted above, the Administration attempted to partially address this claim in the revised executive order by removing the original order’s “religious minority” exemption, which was seemingly aimed at benefitting Christians, given the countries at issue. This claim still applies to other aspects of the new executive order, however.
       
  • Procedural Due Process (Fifth Amendment). The Constitution’s due process clause requires a fair process before the government denies important personal rights and interests, often including adequate notice, court hearings, right to counsel, avoidance of arbitrary action, and so forth.
    • Claim: The executive order affects individuals’ protected rights without providing them adequate opportunity to defend themselves.
    • This claim is crucial, in that it focuses on the reality of how the order will be implemented, including the degree of access to courts and judicial oversight.
       
  • Immigration and Nationality Act. This law, passed by Congress in 1965, sets rules that the executive branch has to follow in dealing with immigration issues.
    • Claim: The executive order violates the INA, which prohibits the executive branch from discriminating between countries in issuance of visas, and which establishes rights to asylum for certain individuals.
       
  • Religious Freedom Restoration Act (RFRA). This federal statute requires courts to apply strict scrutiny in reviewing actions that inhibit individuals’ free exercise of religion.
    • Claim: The executive order violates the RFRA’s prohibition of government substantially burdening exercise of religion.
    • This claim is based on the executive order’s exclusive focus on majority-Muslim countries, and other aspects of its design and implementation.
    • As noted above, the Administration attempted to partially address this claim in the revised executive order by removing the original order’s “religious minority” exemption, which was seemingly aimed at benefitting Christians, given the countries at issue. This claim still applies to other aspects of the new executive order, however.

In addition to the above claims against the executive order, there are crucial legal issues that courts will have to address based on the Administration’s defense of the executive order. These include:

  • how much judicial review is permissible with regard to the executive’s actions assertedly related to national security and the country’s borders;
  • the ability of states to bring claims on their own behalf or on behalf of others; and
  • which of the above legal claims may be raised by non-citizens


Details Regarding Content of the Executive Order

The executive order suspends entry into the United States of non-citizens from Libya, Somalia, Yemen, Iran, Sudan, and Syria. (Executive Order Section 2(c).) The suspension initially runs for 90 days from March 16, 2017.

  • The order includes new provisions indicating that the travel ban applies only to individuals from the listed countries who meet all of the following criteria:
       (i) are outside the United States on March 16, 2017;
       (ii) did not have a valid visa at 5:00 p.m., Eastern Standard Time on January 27, 2017; and
       (iii) do not have a valid visa on March 16, 2017.
       (Section 3(a).)
     
  • In addition, the order includes new provisions indicating that the travel ban does not apply to individuals from the listed countries who meet any of the following criteria:
       (i) any lawful permanent resident of the United States;
       (ii) any foreign national who is admitted to or paroled into the United States on or after March 16;
       (iii) any foreign national who has a document other than a visa, valid on the effective date of this order or issued on any date thereafter, that permits him or her to travel to the United States and seek entry or admission, such as an advance parole document;
       (iv) any dual national of a listed country when the individual is traveling on a passport issued by a non-listed country;
       (v) any foreign national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; or
       (vi) any foreign national who has been granted asylum; any refugee who has already been admitted to the United States; or any individual who has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.
    (Section 3(b).)
     
  • The executive order includes a new waiver provision, allowing discretionary waiver, on a case-by-case basis, of the travel ban for individuals in any of several categories, including:
       (i) previously admitted for specific activities;
       (ii) previously established significant contacts with the United States but is outside the United States on the effective date of this order for work, study, or other lawful activity;
       (iii) seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations;
       (iv) seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent) who is a United States citizen, lawful permanent resident, or alien lawfully admitted on a valid nonimmigrant visa, and the denial of entry during the suspension period would cause undue hardship;
       (v) an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case;
       (vi) employed by, or on behalf of, the United States Government (or is an eligible dependent of such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States Government;
       (vii) traveling for purposes related to an international organization or to conduct business with the U.S. Government;
       (viii) landed Canadian immigrant who applies for a visa at a location within Canada;
       (ix) traveling as a United States Government-sponsored exchange visitor.
       (Section 3(c).)
     
  • The executive order indicates that Iraqi nationals “should be subjected to thorough review,” but does not impose a presumptive ban, the way the order does with regard to the six listed countries. (Section 4.) This is a change from the prior executive order.
     
  • The executive order formally revokes the prior executive order, no. 13,769. (Section 13.)
     
  • The executive order instructs the Department of Homeland Security to request from other countries information it deems relevant to security evaluations of applicants for entry, and contemplates blocking entry of individuals from countries that do not comply with such information requests. (Sections 2.(a), (b), (d)-(f).)
     
  • The executive order instructs the Department of Homeland Security to develop a uniform, enhanced screening program “to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission.” (Section 5.)
     
  • The executive order suspends admissions under the U.S. Refugee Admissions Program (USRAP) for 120 days. The order requires review of security procedures for screening individuals in the program, and indicates that the program may only be resumed “for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.” (Section 6(a).) The new order removes the prior order’s legally questionable provision that future refugee admissions be prioritized for individuals facing religion-based persecution, but only where the person’s religion is a minority religion in the country in question.
     
  • The executive order caps the total number of refugees that can be admitted at 50,000. (Section 6(b).) The prior order’s permanent suspension of admission for refugees from Syria has been removed.
     
  • The executive order suspends the Visa Interview Waiver Program. (Section 9.)
     
  • The executive order contains other provisions relating to federal government reporting and reconsideration of certain programs and positions. (Sections 7 and 8.)
     
  • The executive order requires the Department of Homeland Security and the Office of the Attorney General to track and report a range of crimes and actions taken by foreign nationals. (Section 11.)

 

Advocacy Resources

Following are some of the many organizations working to protect our immigrant communities.

  

Oakland Attorney Angela Glover Blackwell Wages Fight for Equity

Cross-posted from The San Francisco Chronicle

Nearly 40 years ago, when San Francisco’s struggling Bayview-Hunters Point neighborhood was losing yet another business to hard times — in this case, a grocery store — one attorney had seen enough.

Angela Glover Blackwell, an early believer in the need for fresh foods in the inner city, petitioned the governor’s office to intervene and make sure the community maintained a full-service grocery. The alternative was letting residents shop at liquor stores and gas stations.

The petition didn’t go as planned — a new store didn’t open. But the case marked the dawning of Blackwell’s long and distinguished career in social justice, which most recently had her working with the Obama administration to bring grocery stores to underserved cities nationwide.

“I think the last 10 years have been my best,” said Blackwell, now 71, as she sat in her window office on a recent weekday at PolicyLink, the Oakland research and advocacy group she founded 18 years ago. “We need to keep working to make sure we’re creating opportunities.”

From her desk, which sits beneath pictures and posters that sound rallying cries such as “Equity” and “Protect Oakland renters,” Blackwell oversees a staff of 70 public policy experts and attorneys in California, Washington, D.C., and New York. Her organization partners with communities all over the country to help disadvantaged people, often minorities.

The effort, which not only involves healthy food but issues ranging from housing to transportation to education, earned Blackwell a nomination for the 2017 Visionary of the Year award sponsored by The Chronicle and the School of Economics and Business Administration at St. Mary’s College.

“With shifting demographics, the big story is that the majority is becoming people of color,” she said. “The fate of our nation will depend on what happens to people of color.”

Among her organization’s recent work is helping implement the federal government’s Sustainable Communities Initiative. The program assists with planning in depressed neighborhoods; for example, making sure residents have basics like public transit and Internet.

PolicyLink is also helping with business development in poorer parts of Detroit, Baltimore and Pittsburgh. It’s also aiding in the creation of community art projects from Alaska to Mississippi.

“We cross all the issue areas and all the work domains,” said Blackwell, as she clutched a copy of “The Equity Manifesto,” PolicyLink’s call to action that takes its employees to wherever they might find inequality.

While Blackwell frequently travels in the pursuit of social justice, as well for speaking engagements and fundraising, sometimes the need is right in her backyard.

PolicyLink recently helped create Oakland’s affordable housing strategy, a work in progress designed to protect 17,000 city households from being pushed out of town by rising real estate prices and to create 17,000 new homes over eight years.

“They’ve been a critical partner to me as mayor,” said Oakland’s Libby Schaaf, noting that Blackwell was a source of inspiration for her long before the two got to know each other and exchange cell phone numbers.

“As a young college student, I saw her speak at a League of Women Voters event, and it’s really the first time I felt inspired to get involved with local politics,” Schaaf said. “I remember almost feeling drawn, like you’d be drawn to a minister.”

Blackwell lives near Oakland’s Lake Merritt in a house she’s been in for four decades. She is married with two grown children, and three grandchildren, all of whom live locally. Trying to make time for work and family — her husband is an orthopedic surgeon — is tough, she said, but she manages, eating out a lot and waking up early to go to the gym.

Blackwell grew up in St. Louis, where her neighborhood was anything but the neglected communities she advocates for today. It was an economically diverse area with good schools, parks and a healthy mix of businesses, she said, though as she got older she saw it slide.

“Rather than walking to a grocery store, or driving, we were driving farther and farther into the suburbs,” she said.

Blackwell got her bachelor’s degree at Washington, D.C.’s Howard University before going to law school at UC Berkeley.

Before PolicyLink, she worked as a senior vice president at the Rockefeller Foundation in New York, overseeing the organization’s cultural activities. Before that, her career had a number of chapters, including 11 years practicing law at the nonprofit firm Public Advocates in San Francisco.

It was during her time there, in 1979, that she fought unsuccessfully for a grocery store in the Bayview, though her effort prompted Gov. Jerry Brown, during his first time around in the office, to form a commission to explore the problem of “food deserts.” The state Department of Agriculture followed up with money to support farmers’ markets in communities that lacked fresh food.

As chief executive officer at PolicyLink, Blackwell’s push for fresh foods continued when she helped the Obama administration launch the federal Healthy Food Financing Initiative, which today provides funding for groceries and markets in low-income areas.

While she worries that government assistance programs may take a hit under President Trump, she tries to remain optimistic.

“It’s too early to say there’s going to be no opportunities,” she said.

This winter, Blackwell authored an essay called the “The Curb-Cut Effect” in a Stanford University journal about how assisting one group, say the disabled, benefits everyone. She hopes Trump’s moves to help red state voters who supported him out of economic concerns will also help those suffering in poor, urban areas.

“The good news,” she said, “is that the economic inclusive agenda that will reach people who are white, rural and working class is the same economic inclusive agenda that will reach people of color.”

Visionary of the Year award

This is one of six profiles of nominees for The Chronicle’s third annual Visionary of the Year award, which is presented in collaboration with St. Mary’s College’s School of Economics and Business Administration. The honor salutes leaders who strive to make the world a better place and drive social and economic change by employing new, innovative business models and practices. The six finalists were nominated by a distinguished committee that included Chase Adam, co-founder of the nonprofit Watsi and winner of the 2016 award; Greg Becker, president and CEO of Silicon Valley Bank; Emmett Carson, founding CEO of the Silicon Valley Community Foundation; Ron Conway, angel investor and philanthropist; Zhan Li, dean of the School of Economics and Business Administration at St. Mary's College; Libby Schaaf, mayor of Oakland; Jennifer Siebel Newsom, a documentary filmmaker; and Michael Walker, executive vice president and regional executive of City National Bank.

Chronicle Publisher Jeff Johnson, Editor in Chief Audrey Cooper and Editorial Page Editor John Diaz will select the winner, which will be announced during a March 30 event.

To read more: www.sfchronicle.com/visionsf

PolicyLink Joins Civil and Human Rights Organizations to Oppose Confirmation of Jeff Sessions

AN OPEN LETTER TO THE UNITED STATES SENATE
Civil and Human Rights Organizations Oppose Confirmation of Jeff Sessions

On behalf of The Leadership Conference on Civil and Human Rights, a coalition of more than 200 national organizations committed to promote and protect the civil and human rights of all persons in the United States, and the 144 undersigned organizations, we are writing to express our strong opposition to the confirmation of Senator Jefferson B. Sessions (R-AL) to be the 84th Attorney General of the United States.

Senator Sessions has a 30-year record of racial insensitivity, bias against immigrants, disregard for the rule of law, and hostility to the protection of civil rights that makes him unfit to serve as the Attorney General of the United States.  In our democracy, the Attorney General is charged with enforcing our nation’s laws without prejudice and with an eye toward justice.  And, just as important, the Attorney General has to be seen by the public – every member of the public, from every community – as a fair arbiter of justice.  Unfortunately, there is little in Senator Sessions’ record that demonstrates that he would meet such a standard. 

Read entire letter at LCCHR.

25 Disruptive Leaders Who Are Working to Close the Racial Opportunity Gaps

 
Living Cities unveils 25 Disruptive Leaders list, recognizing remarkable individuals who are shaking up the status quo and creating new approaches to address our nation’s most stubborn challenges.
 
 
In celebration of Living Cities 25th Anniversary, Living Cities recognize 25 Disruptive Leaders who are working to improve economic outcomes for low-income people in America’s cities. The list recognizes activists, government employees, artists, community members, entrepreneurs, elected officials and philanthropists from across the country who are committed to addressing racial disparities; empowering and mobilizing others to do the same. In these challenging times, we are more convinced than ever that this type of bold leadership not only is required, but must be celebrated. We believe that their work and leadership embody what’s possible when we lead and work together differently towards a more equitable America.
 
What is a Disruptive Leader?
 
Disruptive Leaders act with urgency and unrestrained imagination. They take risks, put their own personal capital on the line to challenge the status quo, work to take down the barriers that cause racial disparities and embrace the responsibility to question, collaborate and lead for lasting and meaningful change.
 
America’s Top 25 Disruptive Leaders
 
The changes we need to see in cities won’t happen by luck or chance, but by a different type of leadership. These 25 leaders represent a diversity of sectors, roles and experiences. What they share, however, is a deep-seated impatience with the status quo, a willingness to act and to bring others along with them.
 
Join Living Cities to celebrate and congratulate the diverse leaders who make up the #Disruptive25
 
The List: 25 Disruptive Leaders
 
Mayor Steve Adler
Mayor Adler was elected Austin’s 52nd Mayor in December 2014. He is leading Austin towards a new level of inclusive civic engagement between residents and their elected officials. Mayor Adler practiced civil rights law for many years and served nearly ten years as Chief of Staff and General Counsel for Texas State Senator Eliot Shapleigh, working primarily on school finance, equity and access issues. He has been deeply involved with, and has chaired, many Austin civic and non-profit institutions over the past 20 years.
 
Nancy O. Andrews
Nancy O. Andrews is the president and CEO of the Low Income Investment Fund (LIIF). Since 1984, LIIF has served 1.7 million Americans, investing $1.5 billion to create, enhance and preserve affordable housing, child care centers, schools, healthy food retail, health clinics, green facilities and transit-oriented development in distressed neighborhoods nationwide. LIIF is trailblazing new ways to tie together housing and health and to measure the social value of investments through their Social Impact Calculator.
 
Tawanna Black
Tawanna Black, Executive Director for the Northside Funders Group, is a nationally recognized thought leader, well known for influencing, inspiring and equipping cross-sector leaders to transform personal convictions into actions that produce equitable and thriving communities. The Northside Funders Group is a place-based, collective impact organization of 20 corporate, community and private foundations and public sector investors committed to aligning investments and strategies to advance equity, build social capital and extend the prosperity of the Twin Cities to one of its most impoverished neighborhoods.
 
Angela Glover Blackwell
Angela Glover Blackwell is the President, CEO and Founder of PolicyLink, the leading voice for “equity as a superior growth model” and the movement to use public policy to improve access and opportunity for all low-income people and communities of color in the areas of health, housing, transportation, education and infrastructure. Prior to founding PolicyLink, she was a Senior Vice President at the Rockefeller Foundation and, as a lawyer, founded the Oakland (CA) Urban Strategies Council. In 2010, Ms. Glover Blackwell co-authored “Uncommon Common Ground: Race and America’s Future.”
 
Raj Chetty
Raj Chetty is a Professor of Economics at Stanford University, and recipient of both a MacArthur “Genius” Fellowship and the John Bates Clark medal, given by the American Economic Association to the best American economist under age 40. Chetty’s research combines empirical evidence and economic theory to help design more effective government policies. His current research focuses on equality of opportunity, seeking to address the question of how to give children from disadvantaged backgrounds better chances of succeeding.
 
Ta-Nehisi Coates
Ta-Nehisi Coates is a journalist, blogger and memoirist who brings personal reflection and historical scholarship to bear on America’s most contested issues. Writing without shallow polemic and in a measured style, Coates addresses complex and challenging issues such as racial identity, systemic racial bias, and urban policing. Coates is a national correspondent for The Atlantic. His most recent book, “Between the World and Me,” was released in July 2015. It won the 2015 National Book Award for Nonfiction. He was the recipient of a “Genius Grant” from the John D. and Catherine T. MacArthur Foundation in 2015.
 
Jason DeParle:
Jason DeParle is a reporter for The New York Times, based in Washington. For more than 20 years, he has written extensively about issues involving poverty. A two-time finalist for the Pulitzer Prize and a recipient of the George Polk Award, his first book, “American Dream: Three Women, Ten Children, and a Nation’s Drive to End Welfare,” won the Helen Bernstein Award from the New York City Public Library.
 
Martin Eakes
Martin Eakes is the co-founder and CEO of Self-Help and the Center for Responsible Lending. Self-Help has proven that access to responsible savings, loans and transactions is critical for promoting financial security, family health and improved opportunity for low-income families. Since 1998, Self-Help’s Community Advantage Program has helped more than 50,000 lower-income families, especially those of color, to become homeowners in 48 states. In 2008, Self-Help Federal Credit Union was formed to build a network of credit union branches to operate on an uncommon scale. It now has 22 branches, $600 million in assets, and serves over 80,000 people in three states.
 

Free Our Dreams: California's Youth Gather for Advocacy Day

 

Across California, young people of color are courageously leading the charge to protect basic dignity, justice, and fundamental rights for themselves, their families, and their communities. From the Black Lives Matter to the Dreamer movement, from school board meetings to corporate board rooms, these youth are demanding that their voices be heard and their lives valued. 

On Monday, August 8, over 400 youth of color from across the state will convene in Sacramento for the Free Our Dreams Youth Organizing Summit and Advocacy Day. Organized by the Movement Strategy Center, PolicyLink, and the Alliance for Boys and Men of Color, this event will strengthen youth leadership and advocacy skills, build power for a movement led by youth of color, and engage statewide decision makers on key legislative priorities for some of California’s most vulnerable communities.

The rally takes place on the west-steps of the Capitol from 12:00pm-1:00pmET. 

In addition to youth engaging legislators, the Alliance for Boys and Men of Color will be reaching out to its supporters to help pass these key pieces of legislation, throughout the legislative season.  For a full list of legislative priorities, see their statewide campaign page. 

  • We need to close loopholes in the TRUTH Act and hold police accountable, vote yes on AB2792 #freeourdreams
     
  • Youth need legal counsel to ensure they understand their Miranda rights, vote yes on SB1052 #freeourdreams
     
  • No youth should have a criminal record because they can't pay a transit fare. Decriminalize fare evasion, vote yes on SB882 #freeourdreams
     
  • Secret police databases of alleged "gang members" violate due process & criminalize POC youth.  AB2298 brings transparency & oversight
     
  • For-profit immigration detention facilities are known to abuse detainees. SB1289 will stop police dept from using tax $ to hire them
     
  • Solitary confinement is no way to deal with kids. Vote yes on SB1143 to limit its use on juveniles #freeourdreams

 

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