July 2010


Lawyers for Arizona Gov. Jan Brewer on Thursday asked a federal appeals court to reverse a judge’s decision to block key portions of SB 1070, the state’s controversial immigration law.

The lawyers want a three-judge panel of the Ninth US Circuit Court of Appeals, based in San Francisco, to take up the case on an expedited basis.

At issue is whether US District Judge Susan Bolton was correct when she ruled that major sections of the Arizona law would have impermissibly interfered with the federal government’s authority to decide how best to enforce immigration laws. A stripped down version of the Arizona law took effect Thursday.

In authorizing the appeal, Governor Brewer said the problems prompting the Arizona law were caused by lax enforcement of immigration statutes by the federal government.

“America is not going to sit back and allow the ongoing federal failures to continue,” she said. “We are a nation of laws and we believe they need to be enforced.” Brewer added, “I will not back down.”

On Wednesday, Judge Bolton issued a temporary injunction blocking enforcement of key parts of the new law, including a provision requiring law enforcement officials to check the immigration status of anyone during a routine stop whenever police had reasonable suspicion that the individual was an illegal immigrant.

Critics of the law, including President Obama, said the provision would likely lead to illegal racial profiling. The Justice Department joined other plaintiffs in a lawsuit and urged Bolton to block implementation of the new law.

But rather than press the racial profiling issue, Justice Department lawyers argued that the Arizona law impermissibly intruded into areas of authority (immigration and border security) reserved to the federal government.

State officials countered that the Arizona law was written to complement federal immigration statutes, not supplant them.

Bolton disagreed, ruling that several provisions in the state measure were preempted by conflicting federal laws and the policies of the Obama administration. The judge issued a temporary injunction, meaning that she would temporarily block implementation of parts of the law pending a full trial.

Under normal circumstances, the legal challenges to the Arizona law would now be subject to a trial before Bolton. But because of the importance of the issue, state officials took the somewhat unusual step of asking the appeals court to hear their appeal even before a trial has been held.

“This appeal involves an issue of significant importance – the State of Arizona’s right to implement a law its Legislature enacted to address the irreparable harm Arizona is suffering as a result of unchecked unlawful immigration,” the Arizona lawyers said in their brief to the Ninth Circuit.

They urged the appeals court to speed up its consideration of the case in light of the “serious criminal, environmental, and economic problems Arizona has been suffering as a consequence of illegal immigration and the lack of effective enforcement activity by the federal government.”

The governor’s lawyers asked for the court to embrace a schedule that would call for the state’s opening brief by August 12, a response by the Justice Department by August 26, and a reply by Arizona by September 2. They asked that the court schedule the case for oral argument the week of September 13.

If the Ninth Circuit declines to take up the case, or takes it up and upholds Bolton’s ruling, Arizona could then still file an expedited appeal to the US Supreme Court.

At the center of the case is a dispute over the intersection of federal authority to set immigration policies and enforce immigration law versus state government efforts to protect the health and safety of local residents threatened by a large influx of illegal immigrants by making passing a state law that mirrors several unenforced federal laws.

“If the federal government wants to be in charge of illegal immigration and they want no help from the states, it then needs to do its job,” Brewer said. “Arizona would not be faced with this problem if the federal government honored its responsibilities.”

She added, “Illegal immigration is an ongoing crisis the State of Arizona did not create and the federal government has refused to fix.”

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Should the Gillard [Labor] government be re-elected, the boatpeople issue will continue to plague it and Labor’s internal divisions will come much more strongly to the fore.

There is no equivalence between Gillard’s proposed regional processing centre in East Timor and Abbott’s proposed centre on Nauru. For a start, the geography is radically different. No one will intentionally sail to Nauru. It’s just too far away.

Secondly, its purpose is designed to prevent people-smugglers from being able to achieve for their clients the ultimate prize: permanent residency in Australia. It is only about solving the Australian problem. Illegal immigrants would be sent there and processed. They would be treated humanely and all their human rights observed. They would be free to go to any country that would have them, or free at any time to go home. Of course there is a small element of semi-bluff. If the boats stopped absolutely, then a future Abbott government might decide, as the Howard government did, to exercise a special act of generosity and allow some of the people to come to Australia. But that would only be after some years, and after the boats had absolutely stopped.

At the same time, an Abbott government would institute temporary protection visas without family reunion rights. Despite the braying and self-regarding protests of the Malcolm Frasers and Julian Burnsides and others in their camp, TPVs are completely consistent with the 1951 Refugee Convention. According to a recent speech by UN Secretary-General, Ban Ki-moon, there are about 16 million refugees today. The vast majority of these will not be resettled anywhere, but will ultimately go home. Temporary protection is the norm.

This is not a question of compassion. This column has always supported a big immigration program, bigger than either of the main parties now supports, including a substantial refugee component. But it also supports an orderly program in which Australia chooses who gets to live here. The government’s soft policies on boatpeople, and its formerly high rate of acceptance of boatpeople as genuine refugees, has encouraged many thousands to get into boats. According to the opposition, perhaps 170 people have drowned in the process. That’s not compassionate.

Gillard’s proposal for a regional processing centre in East Timor is entirely different from Abbott’s proposal for Nauru. Her insistence that the centre has to be located in a country which is a signatory to the 1951 convention is nonsensical. Most of the refugee camps from which Australia took Indochinese refugees in the 1970s and 80s were located in countries such as Malaysia and Indonesia, which were not signatories to the convention. Similarly, many countries that are signatories, such as Singapore, do not take any refugees for resettlement. Another convention signatory, China, has been known to force genuine refugees back to North Korea. Being a signatory to the convention is completely meaningless.

Moreover, any centre established in East Timor would become a plaything in East Timorese domestic politics, and inevitably a point of leverage for any East Timorese government in its relationship with Australia.

But most significantly, as this column has previously pointed out, it would be positive magnet of enormous power, attracting boatpeople from far away. In the joint press conference between Indonesian Foreign Minister Marty Natalegawa and Australia’s Stephen Smith, it was clear the Indonesians have absolutely no enthusiasm for this crazy idea at all. Natalegawa, the most diplomatic and helpful of men, kept stressing that the region should not focus on establishing this centre, and even less should it focus on the putative centre’s location.

The Rudd-Gillard government policies that have resulted in so many boatpeople coming to Australia have been a huge headache for Jakarta. Indonesia was a significant beneficiary of the Howard government stopping the flow of boatpeople.

It is absurd to slander the Australian people for being concerned about this unregulated flow of people, mostly from Afghanistan, the nation with perhaps the broadest and longest tradition of Islamist extremism. Some estimates are that all up 10,000 boatpeople will arrive this year.

Until recently, 95 per cent were being granted, almost automatically, refugee status and permanent residency in Australia. Say next year there are 10,000 Afghan boatpeople and they are all accepted into Australia. With permanent residency there would come family reunion rights. Say then that each brings even three relatives over time. That would be 40,000 Afghans who were never part of a considered immigration program. It is entirely reasonable for the Australian people to be concerned about this.

Given her strong rhetoric but meaningless policies on this issue, Gillard could well get back into government and deliver nothing in the way of stopping the boats. This could set her up for a public reaction, as occurred against Kevin Rudd, that she promised much and delivered nothing. On the other hand, to actually stop the boats she will have to take measures that the bleeding heart section of her party will hate. This issue will run and run.

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In the Forest Service’s news release about the recent string of marijuana busts, I discovered a term of art I’d never encountered before:

“During the raid, a U.S. Forest Service K-9 team located Gauldry Almonte-Hernandez, a displaced foreign traveler from Michoacán Mexico, who had tried to flee the area and hide while officers were performing entry into the marijuana garden”

“Displaced foreign traveler”? Makes it sound like he meant to go to Disneyland, got lost, and ended up at a pot plantation in the woods south of Hayfork.

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A lot of new housing in Britain is welfare housing for the poor so this will mean a big and expensive obligation for the taxpayer

Nearly 100,000 new homes must be built every year just to provide housing for immigrants, ministers disclosed yesterday. Four out of every ten new houses or flats [apartments] built to cope with the rising population will go to a migrant, they said.

Over a 25-year period, immigrants will require 2.5million extra homes unless the Government meets its pledges to bring about a major reduction in numbers arriv­ing to live in Britain.

Communities Department spokesman Andrew Stunell said estimates of housing demand and the expected level of housing required by immigrants were prepared in March 2009, but only now revealed.

He said in a Commons written answer: ‘It is estimated that net international migration could account, on average, for 40 per cent of the net growth of households in England over the projection period from 2006 to 2031.’

The housing projections from the Commu­nities Department say that at current birth­rates and expected rates of immigration, 252,000 new homes a year will be needed each year until 2031.

Of these, 36,000 will be needed because there will be more people living alone and fewer couples and families, and 116,000 because of rising birthrates. The remaining 100,000 will be needed to house migrants, based on 2006 population figures.

At present the Office for National Statistics estimates that net immigration will run at 180,000 a year for the foreseeable future.

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A federal judge on Wednesday blocked the most controversial parts of Arizona’s immigration law from taking effect, delivering a last-minute victory to President Obama and other opponents of the crackdown and a setback for Gov. Jan Brewer other supporters. (AP)

A federal judge on Wednesday blocked some of the toughest provisions in the Arizona illegal immigration law, putting on hold the state’s attempt to have local police enforce federal immigration policy.

Though the rest of the law is still set to go into effect Thursday, the partial injunction on SB 1070 means Arizona, for the time being, will not be able to require police officers to determine the immigration status of anyone they stop or arrest.

U.S. District Judge Susan Bolton also struck down the section of law that makes it a crime not to carry immigration registration papers and the provision that makes it a crime for an illegal immigrant to seek or perform work.

“The bottom line is we’ve known all along that it is the responsibility of the feds,” Brewer told The Associated Press. “They haven’t done their job so we were going to help them do that.”

The Mexican government praised the judge’s decision. Foreign Minister Patricia Espinosa told reporters that the injunction was a “first step in the right direction.”

In all, Bolton struck down four sections of the law, the ones that opponents called the most controversial. Bolton said she was putting those sections on hold until the courts resolve the issues.

The ruling said the Obama administration, which sought the injunction, is likely to “succeed on the merits” in showing the above provisions are preempted by federal law.

“The court by no means disregards Arizona’s interests in controlling illegal immigration and addressing the concurrent problems with crime including the trafficking of humans, drugs, guns, and money,” the ruling said. “Even though Arizona’s interests may be consistent with those of the federal government, it is not in the public interest for Arizona to enforce preempted laws.”

A number of provisions will still go into effect as the case is litigated. Arizona will be able to block state officials from so-called “sanctuary city” policies limiting enforcement of federal law; require that state officials work with federal officials on illegal immigration; allow civil suits over sanctuary cities; and make it a crime to pick up day laborers.

The ruling came just as police were making last-minute preparations to begin enforcement of the law and protesters were planning large demonstrations to speak out against the measure. At least one group planned to block access to federal offices, daring officers to ask them about their immigration status.

Justice Department spokeswoman Hannah August said the court “ruled correctly” with its decision Wednesday.

“While we understand the frustration of Arizonans with the broken immigration system, a patchwork of state and local policies would seriously disrupt federal immigration enforcement and would ultimately be counterproductive,” August said.

The Department of Homeland Security released a statement saying the decision “affirms the federal government’s responsibilities” to enforce immigration law. The department claimed “unprecedented resources” have been devoted to that effort.

Rep. Luis Gutierrez, D-Ill., one of the most vocal advocates on immigration issues on Capitol Hill, applauded the decision. “Arresting people based on their appearance and holding them until you can investigate their immigration status is patently un-American and unconstitutional,” he said.

But supporters of the policy slammed the court’s decision. “This fight is far from over. In fact, it is just the beginning, and at the end of what is certain to be a long legal struggle, Arizona will prevail in its right to protect our citizens,” Brewer said.

Rep. Darrell Issa, R-Calif., called the ruling “misguided.”

“The federal government has a right and a responsibility to enforce existing laws, but when they fail to meet that responsibility, we should not stand in the way of the states that take action to respond to the very real threat of border violence, drug cartels and human smuggling,” he said in a written statement. “There’s nowhere in the Constitution that says a state is limited to what it absolutely won’t do and can be stopped for what it might do and to exercise a judgment against a state that has passed a law that is consistent with existing federal law is beyond absurd.”

The volume of the protests will likely be turned down a few notches because of the ruling by Bolton, a Clinton appointee who suddenly became a crucial figure in the immigration debate when she was assigned the seven lawsuits filed against the Arizona law.

Lawyers for the state contend the law was a constitutionally sound attempt by Arizona — the busiest illegal gateway into the country — to assist federal immigration agents and lessen border woes such as the heavy costs for educating, jailing and providing health care for illegal immigrants.

Opponents argued the law will lead to racial profiling, conflict with federal immigration law and distract local police from fighting more serious crimes. The U.S. Justice Department, civil rights groups and a Phoenix police officer had asked the judge for an injunction to prevent the law from being enforced.

Localities inside Arizona were already preparing to interpret the law in different ways. The Tucson Unified School District’s Governing Board approved by a 5-0 vote a policy Tuesday that maintains the district’s stance of not enforcing immigration laws in the district’s schools.

The hardest-line approach was expected in the Phoenix area, where Maricopa County Sheriff Joe Arpaio plans his 17th crime and immigration sweep. He planned to hold the sweep regardless of the ruling.

Arpaio, known for his tough stance against illegal immigration, plans to send out about 200 deputies and volunteers who will be looking for traffic violators, people wanted on criminal warrants and others. He has used that tactic before to arrest dozens of people, many of them illegal immigrants. “We don’t wait. We just do it,” he said. “If there’s a new law out, we’re going to enforce it.”

Elsewhere in the state, police officials were busy wrapping up training sessions this week. Many of the state’s 15,000 police officers have been watching a DVD released this month that signs that might indicate a person is an illegal immigrant are speaking poor English, looking nervous or traveling in an overcrowded vehicle. It warned that race and ethnicity do not.

Some agencies added extra materials, including a test, a role-playing exercise or a question-and-answer session with prosecutors.

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This is treating them as if they have already been accepted as permanent residents. Will the schools have to hire Afghan interpreters?

UP to 60 asylum-seeker children will be enrolled in Darwin schools in a move that has angered some parents who claim they weren’t consulted.

The Immigration Department yesterday confirmed it was in discussions with Northern Territory education officials about getting the children, most of them Afghans, a proper education. A spokesman said it was important for their development that the children attend school.

But some parents have reacted angrily to the move, saying they were not consulted and that school resources were diverted to make way for the influx. One parent told ABC radio he only heard about the plan after receiving an email addressed to the Anula school council.

“We found out through the back door,” he said. “We were told nothing. The school council organised a meeting the previous Monday. The department never came to us to explain anything. No one’s consulted anyone.”

While the Immigration spokesman said it was too early to say which schools would be involved, NT Education Union’s Adam Lampe said he was advised last week that Anula Primary School and Sanderson Middle School had been selected to receive the children.

Anula principal Karen Modoo declined to discuss the proposal and directed calls to NT Education where the executive director of school education, Alan Green, said there would be community consultation and that only schools with room and dedicated English programs would be considered. “There’s no question of us cramping kids into Anula or any other school,” Mr Green said. “They’ll only go there if they fit.”

Mr Lampe said educating the asylum-seeker children was a “great initiative”. “These kids need to be taken care of,” Mr Lampe said. “It’s being federally funded so there are no negatives here.”

But while both Anula and Sanderson have an intensive English unit that each caters to about 100 students, Mr Lampe said more teachers would have to be recruited from interstate.

A spokeswoman for NT Education Minister Chris Burns rejected suggestions the move would put Territory schools under strain.

Asylum-seeker children have previously received schooling on Christmas Island and in the remote West Australian town of Leonora, where officials say they have settled in well.

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Immigration authorities were warned the government’s high success rate for refugee claims was acting as a “major pull factor” that encouraged boatpeople to make the voyage to Australia. Senior government sources have told The Australian the government was warned to brace for an influx of between 5000 and 10,000 boatpeople this year.

It is understood the government was told, before it announced its freeze on new asylum claims, that Australia’s success rate for claims was “out of whack” with the rest of the world and was encouraging people-smugglers.

In the early part of this year, the “recognition rate”, or success rate, for Afghan asylum-seekers was above 90 per cent. Senior government sources have told The Australian that the warning was contained in a document sent to the Rudd government prior to April 9, when it froze new Afghan and Sri Lankan asylum claims.

“It said our recognition rates were completely out of whack and this was a major pull factor,” a senior government source familiar with the advice told The Australian.

Both Julia Gillard and Tony Abbott have vowed to get tough on border security, with both promising to open offshore processing centres in third countries if they win the election.

Since the boats began arriving in late 2008, the government has consistently blamed instability abroad as the main cause of the surge. In October, Kevin Rudd blamed “huge push factors” in Afghanistan and Sri Lanka for the rush of boats. “Countries around the world are dealing with the same challenge,” Mr Rudd said.

But the warning is the clearest evidence yet that domestic policies have been a major factor in pulling boats to Australia’s shores.

It also suggests that for months, government agencies have been working at cross purposes, with the Immigration Department contributing to the very problem other agencies, such as the Australian Federal Police and the Customs Service and Border Protection Command, have been working to curtail.

The document compared Australia’s recognition rate, or success rate for new refugee claims, with those of the US, Canada and particularly Europe.

It concluded Australia was running an exceptionally generous refugee program that was acting as a magnet for boatpeople. “A lot of work was done on (the document),” the government source told The Australian.

It is understood that, while the document warned about the high approval levels, it did not explicitly recommend a cut to the rate. “Essentially, what it was about was that we need to address this by providing to decision-makers better advice, more accurate advice,” the source said.

Up until six months ago the success rate for Afghan asylum-seekers, who have made up more than half the total number of unauthorised boat arrivals since late 2008, was 95 per cent. It has since fallen to 30 per cent. The drop has left most Afghanistan country experts baffled as they say it has not been matched by a corresponding improvement in security.

The source said official government estimates had predicted between 5000 and 10,000 unauthorised boat arrivals this year. So far, 4067 asylum-seekers and crew have arrived in Australia by boat this year. On current trends, 2010 will set a new record for boat arrivals, eclipsing the 5516 asylum-seekers who arrived in 2001, the year of the Tampa crisis.

The government advice appears to have been acted on, with the success rate falling rapidly since the beginning of the year.

A spokesman for Immigration Minister Chris Evans said the Howard government also recognised Afghan asylum claims at rates of around 95 per cent from 1998-99 to 2000-01.

But he said last month the Afghan refusal rate exceeded 70 per cent. “If upheld at review, this increasing rate of refusals will result in many more people being returned to their homeland,” the spokesman said.

The Department of Foreign Affairs declined to comment on the document, saying it did not discuss advice sent to ministers. And last night a spokesman for the Immigration Department said it would not discuss “advice or interdepartmental information-sharing”. “Having said that, this in no way confirms the claims made or that such a document exists,” a spokesman said.

However, The Australian has been told high recognition rates have been an issue within government for some time, with those responsible for border security arguing they are acting as a magnet.

The plummeting refugee success rate has coincided with the government’s announcement in April that it was freezing new asylum claims in order to assess evolving circumstances in Afghanistan and Sri Lanka. But the extent of the drop, as well as its timing, has given rise to wider questions about the integrity of what is supposed to be an objective refugee selection process.

Refugee Council president John Gibson told The Australian last week there was no way the current success rate reflected the current conditions in Afghanistan. “In terms of Afghans, there is a question mark over the integrity of the process,” Mr Gibson said.

Some sources in the refugee sector have suggested the government was approving refugee claims at high rates to avoid a bottleneck in the Christmas Island detention centre.

In April, the Rudd government belatedly announced it would be forced to transfer people to centres on the mainland, because of chronic overcrowding on Christmas Island, which had been expanded from its original capacity of 400 people to about 2500.

In comments sent to The Australian last week, Immigration Department secretary Andrew Metcalfe “categorically denied” claims the high success rate was driven by a desire to move people quickly through the Christmas Island detention centre, or that it was subject to political interference.

“Any such suggestions are baseless and totally without foundation,” Mr Metcalfe said.

He said new country information for Afghanistan had been prepared in February. But the department has refused to release the updated country information it is using as the basis of the tougher assessments, despite promising to do so in April.

The Department maintains it will release its guidance notes for Afghanistan when they have been “finalised”. Afghans are easily the largest category of asylum-seekers to arrive in Australia. Immigration Department figures show more than 3797 Afghans have arrived since the current surge in boat arrivals began in late 2008.

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