Author: Kara Hurvitz

Hi there! If you're reading this, you're probably wondering who I am and why you should listen to me. (It's a fair cop.) So here's a little about me: I'm an advocate, educator, and activist with degrees in law and social work. By day, I help people access needed health care and health care coverage. By night, I fight crime--nah, just kidding; I write the NNR and related essays. Why the NNR? Well, I want to do everything I can to help folks stay informed, connected, and empowered during this difficult time, and this project lets me put work I already do to good use. Plus, I get to snark about the news and current administration. Everyone wins!

Whose Safety? An Early Analysis of the “Enhanced Public Safety” Executive Order

Kara HurvitzLeave a comment

(This is the second installment of a series of articles unpacking the many executive orders issued in Donald Trump’s first week of office. Click here to read the first installment, on the Border Security Executive Order. Though I am not an immigration specialist, I am a legal generalist working with indigent populations professionally full-time. This article is not intended to form an attorney-client relationship or constitute legal advice, though it is my hope that it will help people understand what is going on.)

Either I love my country or I hate myself, because here I am drafting another essay at 9:45 PM. (Or both. Possibly both.) At any rate, it’s an oft-quoted maxim that the more innocuous a law’s title is, the more insidious the actual contents are— and the Executive Order on Enhancing Public Safety in the Interior of the United States is no exception to this rule.

There’s some familiar language from the other executive order:

  • The creation of 10,000 ICE officer positions, despite the general hiring freeze in place for all federal positions. This one sounds an awful lot like the 5,000 border patrol jobs created in the other executive order from today.
  • The Secretary of Homeland Security may deputize any and all state and local police infrastructure of the United States as Immigration and Customs Enforcement officers. I think the language of this provision is literally exactly the same, though I suppose I can’t fault the administration for recycling it.
  • Much like we’re repealing “catch and release,” we’re also repealing the Priority Enforcement Program. The order reinstates the Secure Communities program, which was in place from 2008–2014, and is generally much more aggressive about sending people into ICE custody when they are charged with crimes. Given that the program arrested 3,600 American citizens, I can’t say I’m excited about the change, but nor can I say it’s all that surprising.

Some of the provisions, however, are very different:

  • In general, there is a lot more rhetoric involved, especially in the initial sections. I personally don’t believe these sections are rooted in fact or otherwise worth repeating — there’s little substance to be gleaned, except perhaps for the insight they show into the administration itself. I suppose it might be worth reviewing the Purpose section if you want to get good and angry about something. I’m noting some general fact-checking below, both to educate and to help myself feel better about the world.
  • Unlike the previous executive order, which at least presumed illegal entry into the country, this executive order contemplates immigrants who have engaged in no illegal activity. In addition to the general provisions about criminal conviction, Section 5 also discusses a variety of other categories of immigrant — almost all of which are very vague and have obvious problems with enforcement. If nothing else, it’s not clear how the factual findings necessary to determine someone belongs to one of these categories would even be made, and it seems to largely be left to the officer’s discretion. Here’s the full list:

(b) Have been charged with any criminal offense, where such charge has not been resolved;

(c) Have committed acts that constitute a chargeable criminal offense;

(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;

(e) Have abused any program related to receipt of public benefits;

(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or

(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

  • This executive order talks about consequences for so-called sanctuary jurisdictions — and both the status of a “sanctuary jurisdiction” and the appropriate sanction are determinations that the federal government gets to make. The Attorney General and the Secretary of Homeland Security, to be more precise. They also have the power to exempt cities from these sanctions, despite finding a city to be a sanctuary jurisdiction, for the purpose of funding more law enforcement. About the only good thing I can say about this provision is that the ACLU has probably already filed a request for injunctive relief from it.
  • This executive order literally requires the Secretary of Homeland Security to publish weekly reports documenting “criminal acts by aliens” and what jurisdictions are “failing to honor” detainers for those people. Weekly reports. Of all immigrants charged with crimes. For every single jurisdiction in the United States. I hope General Kelly wasn’t planning on sleeping anytime in 2017.
  • The administration is creating a special Office for Victims of Crimes Committed by Removable Aliens. It’s not clear what this office would actually do, other than issue quarterly reports on what it’s doing — the order just says it has to “ provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims.” I can’t even imagine what this is going to look like, for reasons I’ll describe below.
  • The AG and Secretary of Homeland Security also apparently have to create quarterly reports documenting the immigration status of everybody being held pretrial basically anywhere. It includes federal systems, state systems, “local detention centers,” and U.S. Marshall federal pretrial custody. So that’ll be fun to get done with a skeleton staff during a hiring freeze.
  • The order specifically exempts immigrants being detained from the Privacy Act of 1974, which I’m honestly not even sure they can do. This is another provision that the ACLU has probably already filed a request for injunctive relief about — it’s essentially changing legislative law, which the Supreme Court generally frowns upon. At any rate, this provision needs to exist in order for the order of public weekly reports to be at all legal, because it would otherwise be subject to the Privacy Act. So if this provision tanks, presumably the weekly criminal charge reports and quarterly immigration status reports would go down in flames as well. You know, if they haven’t already been doused in gasoline and napalm by an irate Secretary of Homeland Security who doesn’t have time for this nonsense.

Some general fact-checking of note (in case it’s helpful to you, and before I rupture something):

As I mentioned above, this particular executive order contains a plethora of misinformation and downright propaganda. In the interests of clarification and also not punching nearby walls, I would like to unpack some of it for you:

  • There is no evidence to suggest that immigrants commit crimes at greater rates than citizens; in fact, all relevant studies show they commit crimes at lower rate due to higher risk exposure. I can personally confirm this through professional experience, but since I would never encourage you to simply take my word for it, here are some articles on the matter.
  • There is no evidence to suggest that sanctuary practices “destroy the fabric of the Republic” or “have caused immeasurable harm to the American people.” Putting aside the fact that there have been no studies done on this to date, it doesn’t even make intuitive sense — by definition, sanctuary practices are only enacted in circumstances where the local government believes it would be disruptive to their governance and general public safety to comply.
  • There is no evidence to suggest that people who are out of status represent a greater threat to society than people who are present legally or are citizens. In fact, many people who are out of status in the United States don’t even know they are out of status, because they have failed to comply with confusing regulations and believe they are here legally.
  • There is no evidence to suggest that complaining witnesses in crimes with immigrant defendants require special protections. Again, immigrant populations don’t even commit crimes at the same rates as citizen populations, likely due to higher risk exposure. And when people who immigrate do commit crimes, there’s very little commonality in the charges, which means there’s also very little commonality in the victim populations. This is like creating an office to study Victims Named Bruce.
  • It is literally the current structure of immigration law to “exempt classes or categories of removable aliens from potential enforcement” based on circumstance and public safety risk. That is how humanitarian-based special status works. Asylum status, refugee status, SIJ status, humanitarian parole, T visas, and U visas all function as form of exemptions, which means this executive order is literally saying that we cannot faithfully execute immigration laws if we faithfully execute immigration laws.

As several news sources have insinuated, this is likely not the last executive order we’ll see this week on the topic of immigration. I’ll continue to write about executive orders as I am able, though I think two articles is my upper limit for one evening. If you’ll excuse me, I have a date planned with a pocket constitution and a pint of cotton candy ice cream, and I’m told it’s rude to keep either of them waiting.

Tales from the Borderlands: An Early Analysis of the “Border Security” Executive Order

Kara HurvitzLeave a comment

(This is the first installment of a series of articles unpacking the many executive orders issued in Donald Trump’s first week of office. Though I am not an immigration specialist, I am a legal generalist working with indigent populations professionally full-time. This article is not intended to form an attorney-client relationship or constitute legal advice, though it is my hope that it will help people understand what is going on.)

Of all of Donald Trump’s promises, perhaps his most famous was his promise that he would personally ensure that the American government would “build a wall” to keep out “illegal immigrants.” It is therefore not surprising that one of his first acts in office is to sign an executive order entitled “Border Security and Immigration Enforcement Improvements,” which outlines his plan for building a wall (among other things). The order is long — it contains seventeen distinct sections — and a lot of it is either vague, confusing, or both. This article is intended to break down what the executive order is actually saying, to help families prepare and to inform the average citizen what we can expect on this front.

Here’s what is new and clearly articulated as of today, January 25:

  • The administration is ordering a wall built on the border between the United States and Mexico. Yes, that’s really a thing that is apparently happening. That said, it’s still unclear what the funding streams will be, what the budget will be, or generally what the plan is for construction.
  • The administration is ordering new detention facilities built near said wall. Again, it’s not clear where the funding is coming from or what the budget will be, though I’ll write more on that below. If Congress doesn’t cooperate, the actual construction is probably not going to happen.
  • Pre-proceeding release will no longer be a thing. The actual language of the executive order describes “the termination the practice known as catch-and-release,” which is really just a fancy way of saying “we won’t let people out before their hearings anymore.” This practice actually was originally terminated in 2006 under President George W. Bush, but much like NSEERS we’ve been walking that back under subsequent policy since 2009 or so. This is a big deal, both because it’s not especially humane and because refusing to release people puts huge amounts of strain on the detention systems, which often aren’t equipped to hold people in the numbers they are apprehended. This executive order does have a plan for that, but… you’re probably not going to like it.
  • Though we now have a federal hiring freeze for most government agencies, good news: The Wall is Hiring! The Secretary of Homeland Security “shall” (which is legalese for “this ain’t optional, Hoss”) hire 5,000 more border patrol agents, which the administration wants stationed “as soon as is practicable.” And they said Donald Trump wouldn’t create more jobs.
  • The order compels every executive department and agency to report all aid and assistance to Mexico since 2011. Folks, I honestly wish I were making this one up, but the language isn’t exactly ambiguous. Despite it not being remotely illegal to provide funds or otherwise provide aid to Mexico during President Obama’s tenure, each executive department and agency “shall” (there’s that word again) “identify and quantify” all such aid going back five years — in other words, not just what types of help everyone has given, but how much. They make sure to include language specifying that they mean “all bilateral and multilateral development aid, economic assistance, humanitarian aid, and military aid.” The first report is due to the Secretary of State within thirty days of today’s report — so by the end of February, basically. And thirty days after that, the Secretary owes a report directly to the President. Incidentally, note that all of this involves the Secretary of State, not the Secretary of Homeland Security. So, you know, that’s promising. Also, the section outlining all of this contains a grammatical error, which I note in a vain attempt to make myself feel better about the whole thing.
  • The Secretary of Homeland Security is now allowed to deputize any and all state and local police infrastructure of the United States as Immigration and Customs Enforcement officers. This is another one I dearly wish I were making up, because my concern that it might happen has been literally keeping me up at night. But again, the language is not ambiguous — “as the Secretary determines are qualified and appropriate,” police can be authorized “to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary.” Oh, but in case you were worried about those poor ICE officers being out of a job, you needn’t be; the very next sentence clarifies that this is “in addition to, rather than in place of, Federal performance of these duties.”
  • This executive order is really hoping you haven’t heard of the concept of ‘sanctuary.’ It grants officers “access to all Federal lands as necessary and appropriate to implement this order” as well as authority “to perform such actions on Federal lands as the Secretary deems necessary and appropriate to implement this order.” I’m not sure how this one will be implemented in cities that refuse to cooperate, but I guess we’ll find out.
  • They want prosecution of people detained at borders to be a high priority. I know this because they explicitly say so. There’s a section devoted to it and everything — and the petty part of my brain that wishes none of this were happening would like you to know that they use the term ‘nexus’ wrong while saying so.
  • There will be monthly reports on their apprehension statistics. In a “publicly available way,” though it’s unclear what exactly that means.

Here’s what the executive order might be saying, but we need more information to really know:

  • Detained immigrants may be sent back to the place they are fleeing — or they might not. The exact language in the executive order is “The Secretary shall take appropriate action . . . to ensure that aliens . . . are returned to the territory from which they came pending a formal removal proceeding.” It’s not clear whether that would mean “we stick you in a truck and give you a nice starlight tour of Mexico,” or it actually means people might be extradited to the country they are fleeing. As awful as the former would be, the latter would be even worse — but it’s likely the latter is the accurate interpretation, because this administration has been adamant in its denial of refugees, and the policies in this order about asylum aren’t exactly much better. Relatedly…
  • Asylum might be about to become impossible to obtain at the border. Some provisions of this executive order promise to “end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens.” This is a confusing statement to me, in addition to being a vague one, for a variety of reasons — first of all, it’s not exactly easy to get asylum granted; though rates vary by location and by type of application, less than one-half of asylum applications are granted annually. But also, from a legal perspective, you’re not a removable alien on the basis of status anymore if you have asylum status granted; it’s literally a status that grants the right to permanent legal residence. This is like saying “we will end abuse of the self-defense doctrine currently used to prevent the lawful incarceration of people who punched someone assaulting them and then ran like hell.” At any rate, that confusion aside, it’s not really clear what abuses they are contemplating or whether they are saying asylum will stop being a defense to deportation, so we’ll need to keep watch on this front and wait to see what is going on.
  • Special Immigrant Juvenile Status might also be about to become impossible to obtain at the border. Right now we have a status that is like asylum that specifically can only be applied to unaccompanied children — it’s called Special Immigrant Juvenile Status (or SIJ status for short). This executive order tells the Secretary of Homeland Security to “ensure that unaccompanied alien children are properly processed, receive appropriate care and placement while in the custody of the Department of Homeland Security, and, when appropriate, are safely repatriated in accordance with law.” It’s not clear whether this processing means deportation, or if it means filing SIJ paperwork; I guess we’ll need to wait and see on this one also.
  • The administration may be assigning asylum officers and immigration judges directly to detention centers. The language in the order itself isn’t entirely clear, but it sounds like the order is simply installing asylum officers and judges directly in the detention centers. To my knowledge, this is new — though it’s possible to plead asylum as a defense to deportation, traditionally that’s done at the court as part of deportation proceedings, just like the proceeding itself. This provision is probably not legal, in case anyone was curious. It sounds like they are expecting many of these cases won’t even get to the deportation proceeding stage , which would be a staggering change if I’m reading this correctly. Basically, they are aggressively minimizing how much detainees even get to set foot in the country at all.

Here’s what the executive order dictates for the near future, which presumably will clarify some things:

  • Several reports or reviews. Per the executive order, there’s a report due to the President in ninety days on the general progress of all of these directives, and another one due in one hundred and eighty days. There’s nothing guaranteeing that any of us will be told anything about this, but I suspect strongly that anything that makes this administration look good will be reported upon at length.
  • A budget of some kind for the project. Though there’s nothing guaranteeing we’ll see this either, it is required per the order itself for the current and next fiscal year. That gives them more-or-less six months to slap something together.

And now you know everything you ever wanted to know about this executive order! And presumably several things you didn’t. At any rate, it’s going to be a rough few years, but if you are reading this, you presumably knew this already. Keep on keeping on, and take care of yourself while you do; we’ll do everything we can to keep all of this bearable.

(Note: Click here to continue to the second installment, on the Enhanced Public Safety executive order.)

This Should Probably Be More Self-Evident Than It Is

Kara HurvitzLeave a comment

Though I don’t believe the inherent morality of humankind is improving with time, the available technology, and particularly our ready access to information, absolutely has. In Jackson’s era, it was possible to go one’s entire life believing racist things that were never disproved within one’s immediate frame of reference. In our current information-laden era, in contrast, it is possible to go to websites whose express purpose is to research rumor and belief and articulate their factual underpinnings — and we have ample scientific evidence negating the idea of racial superiority. Further, the entire nation literally just lived through eight years of efficient governance by a Harvard-educated black man. No one is saying that Obama was not an effective President; in fact, the common Breitbartian complaint and battle cry is that it’s necessary to undo all that President Obama accomplished–because that is a long list.

In other words, antebellum America had commonplace racist beliefs and rigid societal structure that strongly restricted disproof of these beliefs. We, in contrast, have ready access to Snopes and a black President.

This is probably obvious to you, as well it should be, but it also has an important corollary that I haven’t heard anyone talking about:

In this era of ready information, belief in the myth of white supremacy requires more than mere ignorance; it requires active and intentional disregard of available knowledge. For this idea to find purchase, it must be inherently more comforting to the recipient than an acceptance of meritocracy. The myth of supremacy is a security blanket that white racists are refusing to outgrow, and rather than accepting facts they are cocooning themselves in untrustworthy and laughably false information in order to protect the myth. There is no ‘empathy’ that will get around this, because it is the reaction to the myth of superiority that is driving it and the person has already preemptively rejected egalitarian progress.

This is why it is so hard to ‘go high when they go low.’ This is why ‘meeting people halfway’ is a myth. White supremacy in this day and age is a primitive ego defense driven by an ugly desire to see other people fail, and it actively drives society backward.

Advocating to Callous Listeners: Five (Not-So-Easy) Steps

Kara HurvitzLeave a comment

This is a very strange Martin Luther King Day. In my lifetime, we’ve always had a long way to go on race relations–I think most people agree we were not enjoying a post-racial society before the November election–but this is the first time that a President-Elect picked a fight with a civil rights legend the weekend before his inauguration. And, more importantly, this behavior does not exist in a vacuum–our President-Elect ran on a blatantly racist, homophobic, ableist, and Islamophobic platform, and though he did not win with a majority, he did win. And his victory (such as it was) emboldened racist people throughout the country to say what they really think–or, as was the case in many school bathrooms and Congressional floors throughout the country, do what they really think. And most of us who are decent human beings are horrified by this, and want it to change.

However, when many of us with these reactions tried to talk to our family/colleagues/friends/neighbors’ cats who supported Trumpian politics, we had a second horrifying realization: This person we were speaking to did not care about fellow human beings. “The Black Lives Matter movement started because people are dying,“ we told them, and to our abject horror, they just didn’t care. Appealing to a sense of humanity did not work, because the listener did not view the subject population as people.

And this is the point where many of us well-meaning advocates, and especially allies, start to draw a blank about what to even do next. Recognizing the humanity of fellow human beings is so basic to us that we don’t know what to do when someone rejects it–the carburetor in our brain stops turning over, and we stand there sputtering, “But they should!” And we’re right–they should–but they still don’t.

I know something of this challenge, because I spent four and a half years writing about mitigating factors of very marginalized and vulnerable people for a living. Talking to people about their experience above has made me realize it might be helpful to talk about my trial and error process. To that end, I’ve drafted a quick primer on an unofficial five-step process I’ve identified over years as a professional advocate for speaking to listeners who have already reject moral and empathy-based arguments. Though this is by no means exhaustive and makes certain assumptions about the relationship between the speaker and the listener, I’m hoping it’s a helpful start for the average ally and advocate.

1. Let Go of ‘Should,’ And Recognize ‘Is’

This is the first step, but it’s also by far the hardest–if you can manage it, the rest becomes much easier. Most people reading this probably agree that anyone with the empathy God gave a grapefruit thinks that other human beings dying through preventable means is bad. The natural corollary that extends from this understanding is that this person we are speaking to does not, in fact, have the empathy God gave a grapefruit. There’s a real impulse to reject not just that person, but the whole rest of the process–“Well this person is terrible, so until they aren’t, I’m done.” And I hate to break this to you, Dear Reader, but if you have set out to advocate you are not, in fact, done–or at least, not just because this person should have empathy and doesn’t. Nobody is going to make those people play by the rules of basic humanity. People who show they lack empathy to a degree that appalls you still sometimes need to be dealt with, and walking away in those situations is a luxury we’re losing the ability to exercise. You gotta even. I’m sorry.

This doesn’t mean that you have to think this person is wonderful, of course–as soon as you are done interacting with that person in that context, it is appropriate (and even healthy) to blow off steam about how awful it was to engage with them. It’s part of the human condition. But you definitely can’t have a win condition without even playing the game, and that means recognizing the reality in front of you.

2. Identify Goals (Ahead of Time, if Possible)

You’ll note that I said above, “People…sometimes still need to be dealt with.” The obvious corollary is that sometimes, they don’t. The best way to avoid banging your head against a human brick wall for an hour is to have a good idea of whether you need to deal with this person–and the easiest way to do that is to identify your goals. And even when you do need to talk to a person, having a firm understanding of what you’re trying to achieve helps you get in, say what you have to say, and get out–so it’s very helpful to know going in. What are you trying to achieve by talking to this person? Do they control access to a resource you need? Are they engaging in a damaging behavior you want to stop? Are they voting all of our human rights away in the first week of their first session before your eyes? (Spoiler: If your answer is “I want to let them know that their ideas are bad and they should feel bad,” I recommend walking away.)

To help you see what I’m talking about, let’s go through an example scenario–for the purposes of this essay, let’s pretend we are members of Congress, which is both a helpful universal and a pleasant daydream. Mitch McConnell is holding another Senate vote about the Affordable Care Act. The Senate committees have come up with alternate legislation, and it’s just forty blank pages followed by the words “Buy an HRSA.” People may die if we can’t convince some of the Republican Senators who voiced early opposition to the lack of “replace” in the phrase “repeal and replace” to vote differently this time around.

3. Look for Carrots and/or Sticks

Okay, so: You’ve accepted that the obvious appeal to humanity won’t work, because the listener is a jerkfaced jerk. But they’re a jerkfaced jerk who has a thing you need. Now what?

Here’s where the first thing I mentioned becomes really important–because figuring out what is going to be effective requires an understanding of what motivates that person. Please note that I am not adding my voice to the chorus of white people saying that everything will be fine if we just give white supremacists more empathy, which I believe is a dangerous model of thought at best. But in order to advocate, you need to know what a carrot and/or a stick would look like for this person, because everybody has their own carrot and stick–and you can bet that a racist callow person’s stick and carrot probably don’t look like yours.

To continue the example above, let’s talk about what would constitute a relevant carrot and stick for your average Republican Senator. Though this is an incredibly complex topic, for the purposes of this exercise let’s assume the carrot probably looks like money, or political capital. The stick probably looks like being voted out of office.

So as we’re navigating negotiation with these Senators, we need to either figure out why the ACA will save/earn them money or figure out why they should fear what their constituents will do if they accept this legislation.

4. Offer a Carrot or Raise a Stick, and Preferably One that You Believe

This is another hard but crucial step, because it requires you to take on the listener’s paradigm long enough to persuade them. It honestly does help to believe what you are saying, for several reasons. First of all, a credible argument tends to carry more weight; a thing even you don’t believe is generally not that persuasive to other people. But more importantly, an argument you can accept as true helps you remember is that speaking this person’s language doesn’t mean you hold their values, or that you agree with them–it just means you need something from them and you have to figure out how to coalition-build in order to make that happen. It’s helping them figure out why they want to do this thing you want them to do anyway. (And lastly, though perhaps this should go without saying, it is never a good idea long-term to lie your way to a built coalition, as this creates many problems for both you and others throughout the process.)

Let’s go back to our replacement plan vote. Though I’m generally a carrot person by personality and trade, in this instance I think the stick is easier to argue. As I noted above, this is incredibly complicated, but for now let’s pick one stick: That preserving the ACA probably will not save these Senators money, but constituents relying on the ACA will not be happy to see their health insurance evaporate–even if they currently don’t know it. Elaborating on that is where the advocacy starts, and ideally is the vehicle by which change happens. Awesome and canny Senators that we are, we talk with the folks who are already wavering about why their instincts are good and this move is risky. We note their specific reelection dates. We note how long it would take the ACA to be effectively repealed. We observe how close the end date will be to their campaign season. We heroically refrain from yelling at them. We generally try to persuade them that their scary inhuman boss won’t even be their boss in two years if they do this now. In an ideal world (or at least, in this tiny scenario we have built), we are successful.

5. Take Care of Yourself After the Rinse/Repeat Cycle Ends

Most people’s minds aren’t changed in a single five-minute session; it takes a lot of work and internal screaming and fantasizing about shaking them by the shoulders. This process is hard on a person, and appropriate self-care should be treated as a necessary step. Do what you need to do in order to stay healthy, and that tends to be different things for different people. I encourage you to think of self-care as the final step of the advocacy process, because it’s that crucial.

To wrap up, let’s talk about final steps in the Congress scenario. After several grueling hours of arguing convinces my Republican colleagues to vote against the bill, I am tired and hungry. So I reward myself. By eating their share of the vote-o-rama pizza.