New York Times: “U.S. to Further Scour Social Media Use of Visa and Asylum Seekers”

The Department of Homeland Security (DHS) is building tools to examine social media accounts of visa applicants as well as those seeking asylum or refugee status in the US for possible terrorism ties. At a congressional hearing last month, Francis X. Taylor, Under Secretary for Intelligence and Analysis, the top counterterrorism official at DHS, said after the mass shooting in San Bernardino “we saw that our efforts are not as robust as they need to be,” and therefore would start to examine posts on Twitter, Facebook, and other social media sites.

This DHS announcement comes after terrorist groups, most prominently the Islamic State, also known as ISIS or ISIL, have been increasingly successful in using social media sites to spread propaganda, encourage independent terrorist attacks, and as a recruitment tool. Previous to DHS’s announcement, Senator John McCain introduced a bill that would require the DHS to screen social media sites for refugees and those visiting or immigrating to the US, and Representative Vern Buchanan has additionally introduced a bill mirroring McCain's that requires the DHS to examine all public records, including “Facebook and other forms of social media,” as part of the routine security background check.

“This legislation adds an important and necessary layer of screening that will go a long way in properly vetting the online activities of those wishing to enter the United States,” Representative Michael McCaul, chairman of the House Homeland Security Committee, told the New York Times. “A simple check of social media accounts of foreign travelers and visa applicants will help ensure that those who have participated in, pledged allegiance to or communicated with terrorist organizations cannot enter the United States.” While Congress has yet to act on the proposed legislation, in December, twenty-two Democratic lawmakers urged DHS to examine social media accounts for those seeking US visas.

Melanie Nezer, Vice President for Policy & Advocacy at HIAS, an agency that assists in refugee resettlement, commented to the New York Times about DHS’s social media plans: “We haven’t seen the policy, but it is a concern considering the already lengthy and opaque process that refugees have to go through. It could keep out people who are not a threat.” The American Civil Liberties Union of Maine agreed, telling WMTW News, an ABC affiliate: “We already have a rigorous and multi-layered security screening program in place for refugee resettlement that works. This proposal will only serve to further stigmatize immigrants and divide our country."

DHS’s new plan to review social media accounts comes after they abandoned a similar proposal in 2011. Currently, US Citizenship and Immigration Services (USCIS), an agency of DHS, examines social media accounts as part of the screening process for certain Syrian refugees, but only when there is a "hit" in an intelligence database for the applicant or if there is a security concern stemming from the interview with immigration officials. DHS says they are now hoping to automate the social media review, as a huge amount of messages and other data will need to be processed, as well as make additional hires to conduct the necessary social media security checks.

While data mining experts such as John Elder, who has worked with the Internal Revenue Service and the Postal Service on fraud detection, believe that analyzing social media accounts of millions of people who enter the US each year is feasible, other stress that conducting a thorough and accurate review would be very difficult. David Heyman, a former Assistant Secretary of Policy for DHS, told the New York Times: “You have to be careful how you design the proposal to screen people,” he said. “Artificial intelligence and algorithms have a poor ability to discern sarcasm or parody.”

Coney Island Dreamland

Nicknamed Cy, this sculpted Cyclops head hung above the Spook-A-Rama in the 1950s in Coney Island.

While summer seems a long way off now in the midst of an unpredictable and cruel winter (yesterday, twenty-five mile-per-hour bone chilling winds), Brooklyn Museum's exhibit, Coney Island: Visions of an American Dreamland, 1861–2008, will remind you of warmer and sunnier weather soon to come. This colorful and fun show, the first major exhibition to explore the kaleidoscopic visual record of this iconic beach, documents the "historic destination’s beginnings as a watering hole for the wealthy, its transformation into a popular beach resort and amusement mecca, its decades of urban decline culminating in the closing of Astroland, and its recent revival as a vibrant and growing community." Featuring numerous artistic styles and subjects, the exhibit includes everything from 19th century paintings of the Coney Island shore by William Merritt Chase and John Henry Twachtman to iconic photographs and videos by Walker Evans, Diane Arbus, and Weegee, as well as contemporary works by Daze and Swoon. See it now before it closes March 13 and remember what George C. Tilyou, a prominent Coney Island developer, said: "If Paris is France, then Coney Island, between June and September, is the world."

New York Times: “Scalia’s Absence Is Likely to Alter Court’s Major Decisions This Term”

Justice Antonin Scalia’s recent death will likely complicate the work of the Supreme Court’s eight remaining justices for the rest of the court’s term as well as possibly change the outcomes of major cases facing the court including the closely-watched and highly-anticipated United States v. Texas. This case stems from Texas and other state’s challenge to President Obama’s plan to defer the deportations of more than four million unauthorized immigrants by expanding Deferred Action for Childhood Arrivals (DACA) with a larger program, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which would grant “lawful presence” to certain undocumented immigrants who have relatives lawfully in the US.  

Since the court requires at least five votes to accomplish most things, if a case is deadlocked at 4-to-4, the court can automatically affirm the decision under review without giving reasons and without setting a Supreme Court precedent—which in the case of United States v. Texas would uphold the lower court injunction against DAPA—or, more likely some say, the court can set the case down for re-argument in the fall term starting in October in the hope that the case will be decided by a full court. A full court, however, by the fall term is very unlikely since the Republican-controlled Senate Judiciary Committee has stated that they will oppose any Obama nominee, nor hold any committee meeting on a nominee. “It has been an extraordinarily long time since the Supreme Court has been forced to deal with a departure that occurs in the middle of the term, as the court does here with Justice Scalia’s death,” Justin Driver, a law professor at the University of Chicago, told the New York Times. 

While it cannot be said for sure how Scalia would have ruled in United States v. Texas, his angry dissent in the case over Arizona's harsh immigration law in Arizona v. United States may be an indication. In that dissent, Scalia directly criticized Obama's immigration policy of deferring deportation for potential DREAM Act beneficiaries and described Arizonans as being "under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy." 

The Center for Immigration Studies, an organization that argues for low-immigration numbers, points out that the Obama administration’s insistence that the Supreme Court hear the case as quickly as possible before the merits have been fully argued in the lower courts may backfire, since a Republican-controlled Senate may be even more unlikely to confirm an Obama appointee this year given the important precedent-setting nature of United States v. Texas. Randal Meyer, a legal associate at the Cato Institute’s Center for Constitutional Studies, believes there is a possibility that even with Scalia gone the Court may vote in favor of Texas since there is “some chance that at least some of the liberal justices will ‘switch sides’ to reign in presidential lawlessness, as executive authority can be wielded by both parties.”

The New York Times points out, however, that it’s possible that Chief Justice Roberts, Justice Kennedy, or both may join the liberals on the bench in rejecting the lawsuit’s challenge, perhaps on the ground that “Texas lacks the direct and concrete injury that gives it standing to sue.” Shikha Dalmia, a senior policy analyst at Reason Foundation, unconventionally argues that Scalia may have been an unexpected immigration ally to court progressives in this case. Despite his heated dissent in Arizona v. United States, she writes, Scalia “had strong (though somewhat inconsistent) civil libertarian tendencies that more than occasionally came to the defense of immigrants. Also, his judicial commitment to apply the text of the Constitution and law as written may well have prompted him to uphold these programs.”

Benjamin N. Cardozo School of Law's Andrea Saenz explains further: "Scalia voted with his liberal colleagues for the noncitizen over the government in nearly every landmark crimmigration case [sentencing of immigrants involved in crimes] in recent history." Saenz argues that Scalia had no “inherent animus against immigrants and could be convinced by good arguments based on proper statutory construction.”

David Leopold, a past president and general counsel of the American Immigration Lawyers Association, told Bloomberg DNA that he believed the court would favor the Obama administration despite Scalia's absence. “I don't think that we're necessarily looking at a 4-4 decision,” he said. “The administration has a very strong case…I do strongly believe that the court is going to reverse the Fifth Circuit[.].” Attorney Beth Werlin agrees:

The fact of the matter is that this case was never about Justice Scalia. The President’s executive actions on immigration are lawful exercises of his discretion, and in adopting these policies, he simply is enforcing existing immigration laws passed by Congress. The Supreme Court precedent on this is clear. The Court has repeatedly held that it is well within the executive’s authority to decide how and when to enforce the law and to exercise prosecutorial discretion. As recently as 2012, in Arizona v. United States, the Supreme affirmed that the federal government has discretion to set immigration enforcement priorities.

The expanded DACA and DAPA programs, she goes on to say, clearly falls within this and consequently she believes there will be a clear majority in favor of the Obama administration.  United States v. Texas is scheduled to be argued in April of this year, and we’ll provide more updates as the case progresses and the Supreme Court issues their decision.

Strokkur

Photo by Halli Egils.

Strokkur (Icelandic for "churn") is one of Iceland's most famous geysers. Located in the geothermal area beside the Hvítá River east of Reykjavík, this incredible geyser, which the attorneys at the firm were lucky to see last weekend, erupts about every eight to ten minutes, typically reaching heights of about one hundred feet. Strokkur is close to the currently inactive Great Geysir, which is so famous that the English word "geyser" originates from it. The area reportedly became active more than 1000 years ago and along with exploding geysers features boiling mud pits and lovely views. Our trip was wonderfully organized by Icelimo Luxury Travel. In addition to seeing the geysers, we made it out to the Blue Lagoon, experienced the Northern Lights (okay, some clouds crept in so we didn't get the best view), walked between two continents at Thingvellir (where Game of Thrones is shot), saw the most famous waterfall in Iceland called Gullfoss, and went snowmobiling on top of Langjokull Glacier! Thanks, Icelimo!

Huffington Post: “Democratic Lawmakers Want Kids In Immigration Proceedings To Get a Fair Shot”

Many unaccompanied minors in deportation hearings do not have legal representation, and a new bill sponsored by Democratic senators proposes to change this. The bill, called “Fair Day in Court for Kids Act,” led by Senators Harry Reid, Bob Menendez, Patrick Leahy, Patty Murray, and Dick Durbin, proposes to ensure that children in immigration proceedings have access to lawyers, legal orientation programs, and post-release services. It also applies to "vulnerable individuals," defined as people with a disability or victims of abuse, torture, or violence.

In a speech on the Senator floor introducing the bill, Senator Reid discussed the importance of dealing with the humanitarian crisis from Central America, noting that thousands of migrants, mainly women and children, have fled the region to escape extreme violence, human trafficking, drug trafficking, sexual assaults, and widespread corruption and have come to the US seeking asylum. He said:

These refugees should have help in making their asylum request. And that means that they need a lawyer. Under current U.S. law, there is no right to appointed counsel in non-criminal immigration removal proceedings, even if the person in question is a child. Imagine that. These children, who don’t speak English and are in a new country, are unreasonably expected to represent themselves in a court of law?

Having legal representation can prove critical for women and children in deportation proceedings, as a study by the Transactional Records Access Clearinghouse at Syracuse University found that children were allowed to remain in the US in seventy-three percent of cases in which they had representation, according to data from fiscal years 2012 to 2014. Children without representation were only allowed to stay in fifteen percent of cases. "Trying to win asylum without a lawyer is like playing Russian roulette," Gregory Chen, Director of Advocacy for the American Immigration Lawyers Association (AILA), said on a call with media.

While some groups, including Kids In Need of Defense (KIND) help provide attorneys for children in deportation proceedings, and the Justice Department provided grants in 2014 for attorneys to assist, currently only about a third of minors are going through the immigration process with legal counsel, according to the latest data. "It's just so patently unfair to put these kids through this process unless they have some help," Wendy Young, president of KIND, told the Huffington Post. For deportees returned to the highly dangerous Central American region, a Guardian report found many of them including minors were killed after their return to their home countries.

The legislation will likely face opposition from the Republican-controlled Congress. In a congressional hearing earlier this month, several Republican panel members blamed President Obama’s lax immigration policies for attracting the surge of migrants and children from Central America. Congressman Trey Gowdy said that migrant children are told that once in the US they should find an immigration officer and claim asylum, and he charged the Obama administration with not conducting adequate background checks on the people who sponsor the newly-arrived children, leading to their possible exploitation, he asserted.