Wednesday September 18, 2019

#ChangeLawyers Meet the lawyer who broke the law for climate change

On 16 April this year, I superglued my hands to the pavement outside the headquarters of the oil company Shell in London, surrounded by dozens of policemen. Once unstuck, I was arrested for causing criminal damage. I have been a lead author for the Intergovernmental Panel on Climate Change (IPCC) for three of its five assessment reports, and an adviser in the United Nations climate negotiations for almost 30 years.

Why did I, an international environmental lawyer, break the law? Having spent three decades failing to get governments to pay attention to the climate crisis through advocacy at the highest levels, I felt that activism was now crucial. I wanted to show how ridiculous it is that a law-abiding (indeed, law-making) mother of four should be handcuffed while the world’s major polluters remain unaccountable for ecocide.

My arrest was part of a wave of peaceful protests against the UK government in April 2019, organized by the global movement Extinction Rebellion, or XR. It uses non-violent civil disobedience to demand radical action to tackle what many of us now refer to as the climate emergency.

Until June this year, I coordinated XR’s political strategy team. My role was to find ways to build momentum across the party spectrum and organize negotiations with government. I’ve now returned to my profession: helping governments of developing and developed countries to implement commitments under treaties such as the 2015 Paris climate agreement, and through national laws that have created carbon markets. I will focus on providing legal assistance to vulnerable communities, advising them on how they can enhance ambition in the run-up to the next round of Paris agreement negotiations in Glasgow, UK, in December 2020.

Such treaties and laws provide a crucial framework for action. But sadly, weak legislation and tweaks to ‘business as usual’ practices have not prevented environmental devastation. The current form of capitalism is toxic for life on Earth. It is based on the never-ending extraction of nature and an unjust appropriation of resources that belong to historically marginalized communities. In their current forms, green taxes and tradeable carbon permits let polluters pay to play the same old games.

The global economy must be fundamentally reconfigured into a circular system that uses fewer resources and is based on renewable technologies. The time for half measures has run out — as made plain by the 2018 IPCC special report on the impacts of a 1.5 °C rise in global average temperatures. That’s why I chose to get arrested.

Read the story on Nature

More of This Justice Sotomayor warns that the Supreme Court is doing favors for Trump

Justice Sonia Sotomayor wrote a brief but pointed dissent Wednesday evening from a Supreme Court order that effectively locked nearly all Central American migrants out of the asylum process. Asylum allows foreign nationals who face certain forms of persecution to seek refuge in the United States.

The Court’s order is temporary, and it only allows the asylum ban to remain in effect while the case is working its way through the courts. It stays a lower court decision that blocked the ban. Though this litigation will continue to percolate in lower courts, other judges are likely to read the Supreme Court’s order as a sign that a majority of the justices will ultimately uphold the ban.

As is often the case with such temporary orders, there was no majority opinion — and thus no explanation of why the Court ruled the way it did or even how each member of the Court voted. We only know that Sotomayor voted against the stay, and that Justice Ruth Bader Ginsburg joined Sotomayor’s dissent.

The sharpest part of Sotomayor’s opinion may be its final paragraph, which accuses a majority of her colleagues of bypassing the Court’s ordinary procedures in order to bail out the Trump administration.

[G]ranting a stay pending appeal should be an “extraordinary” act. Unfortunately, it appears the Government has treated this exceptional mechanism as a new normal. Historically, the Government has made this kind of request rarely; now it does so reflexively. See, e.g., Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. (forthcoming Nov. 2019). Not long ago, the Court resisted the shortcut the Government now invites. I regret that my colleagues have not exercised the same restraint here. I respectfully dissent.

To translate this paragraph a bit, a “stay pending appeal” is an order that suspends a lower court’s decision while the case is working its way through an appeals court. On Wednesday, the Supreme Court granted such a stay of a lower court order that blocked a Trump administration policy preventing most Central American migrants from seeking asylum.

As Sotomayor notes, the Supreme Court rarely granted such stays in the past, and for good reason. Because the Supreme Court is the final word on any legal dispute, it typically likes to hang back for a while as lower court judges wrestle with new legal questions. If a lower court hands down an erroneous order, and the Supreme Court does not take immediate action, then the erroneous order may remain in place for months. But a lower court decision will eventually work its way through the appeals process and can be reversed by the Supreme Court if it is wrong about the law.

If the Supreme Court acts prematurely, however, its erroneous decision could last forever because no higher court can overrule the justices.

Thus, out of a healthy fear that its mistakes could linger, the Court historically has preferred to give lower court judges time to consider novel legal questions so that the justices can be informed by those judges’ opinions before the Supreme Court hands down a final word. Sotomayor’s warning is that her Court may no longer be exercising such caution — at least when the Trump administration comes knocking (though it is worth noting that Sotomayor’s dissent also notes a recent case where the Court behaved more cautiously).

A majority of the Supreme Court, in other words, appears to be sacrificing caution and care in favor of a process that makes it easier for the Trump administration to implement its policies.

Read the story on Vox

More of This Too California lawyers are rallying to provide help to Queer Indians fleeing violence

Deepak Ahluwalia is an immigration lawyer based in Fresno and ChangeLawyers℠ board member.

When Munisha wants to remember her son, all she has to do is look down at the tattoo on her right arm.

Moksh, the letters spell out in cursive script — the Hindi term for religious enlightenment, and the name of her 14-year-old boy living in India with his grandparents. Munisha hasn't seen him in person in three years.

Through daily conversations over Skype, she learns that he plans to be a hacker when he grows up, or maybe he'll try to teach himself guitar. The 33-year-old mother wants nothing more than to bring him to the United States to live with her.

But Munisha can't do that until she has legal status — it's one of the reasons she didn't want her last name used. And she can't return to India, where she has been threatened with violence because she identifies as a lesbian.

Deep down, she's afraid of what even he will think.
"He will leave me if he knows the truth," she said. "So I am just hiding.”

Munisha, who also requested that her last name be withheld out of a fear of reprisal in her home country, was raised in a Hindu family in the Indian state of Punjab. Cut off from her family because of her sexuality, she felt like nowhere in India was safe for her to be herself. Now, she's living in Fresno while she waits for the United States to grant her protection from the country she grew up in. Her son, the child born during her brief arranged marriage to a man, is attending school in India and doesn't know she's gay.

Like Munisha, other Indians have sought refuge in the United States and elsewhere. Indian religious minorities are increasingly fleeing religious persecution. More than 7,000 Indians sought asylum in the U.S. in 2017, according to the latest figures from the United Nations refugee agency. Many end up in California as more Indian nationals enter through the southern border with Mexico than ever before.
The reasons are complex, encompassing Hindus in inter-caste marriages, Sikhs fleeing decades of political crackdowns, and Muslims who are increasingly threatened by a powerful Hindu nationalist movement.

But all have to navigate the same convoluted asylum system — one that immigrant advocates say is biased against Indians, and is growing harsher under the Trump administration.

"We're seeing the increasingly punitive nature of the American regime," Sameer Ashar, a law professor at UCLA, said at a public forum on the issue in March. "We're dealing with an asylum system that is deeply, deeply flawed.”

For Munisha, applying for asylum in the U.S. was an escape from the religious conservatism in her home country. It's a problem she's faced since falling in love at age 13 with a girl she considered her best friend.

Munisha started feeling jealous when her friend talked to other girls. When she confessed her feelings, her friend said she liked her too. They began seeing each other in secret until, at age 16, her friend's parents found out about their relationship and moved the family to another state.

When she was 19, Munisha entered into an arranged marriage. After her husband filed for divorce in 2014, she fell in love with a fellow teacher at the school where she worked as a dance teacher. That woman was from a deeply religious, high-caste family.

The cycle began again. When her girlfriend's parents found out about the affair, they threatened to kill her. Munisha's own mother cut off ties with her. Munisha knew she had to leave.

She flew to Los Angeles in 2016 on a tourist visa and quickly got in touch with Deepak Ahluwalia, an immigration attorney based in Fresno. He helped her file for asylum based on her fear of persecution in India, where LGBT people face discrimination and threats of violence even after the Supreme Court decriminalized gay sex in 2018.

"India will never change because it's their mentality," Munisha said. "We are just trash people over there. Now they are improving, but inside they are not accepting us.”

Some lawyers and activists attribute this to the growing influence of Hindu nationalism in India, which they say has precipitated a political and religious crackdown on minority groups and lower-status Hindus. In the past five years since the Hindu nationalist Bharatiya Janata Party of Prime Minister Narendra Modi came to power, Ahluwalia has seen a sharp increase in clients from India — encompassing former police officers, LGBT activists, Christian proselytizers and Sikh political activists.

Read the story on LAist 

Less of This Too Trump administration is purposefully scheduling middle of night court hearings for asylum seekers

A few weeks ago, Sister Salome Limas started fielding some unusual requests at the women’s shelter she runs in Tijuana: The Central American asylum seekers staying at Instituto Madre Asunta began asking if she could let them out in the middle of the night so they could go to court in the United States. The women then showed her paperwork from US immigration officials, directing them to show up to the Mexican side of the San Ysidro Port of Entry at 3:30 a.m.

Limas didn’t understand why they’d need to be there at such a perilous time, especially in the murder capital of the world. For security reasons, Instituto Madre Asunta’s gates are always locked, and people staying at the shelter aren’t allowed to leave at night. So when the women said they had to leave at 3 in the morning, Limas suggested they get a hotel room closer to the port of entry—the walk from the shelter to the border is about 2 miles, through a neighborhood known for drug and alcohol abuse—and stay there for a few hours. It’d simply be too dangerous to leave the shelter with their kids at that hour. 

As it turns out, the women in Limas’ shelter weren’t the only ones getting notices to arrive at the border in the dead of night. Attorneys working along the US-Mexico border confirmed to Mother Jones that clients with asylum hearings from San Diego to El Paso have had to wait at ports of entry well before daybreak—putting an already vulnerable population in unnecessarily dangerous situations. 

A US Customs and Border Protection official said that these asylum seekers are typically given a call time four hours prior to their court time “to allow for processing.” They previously had applied for asylum in the United States before being sent back to Mexico to wait on their cases under the Trump administration’s so-called Remain in Mexico policy. (More than 42,000 asylum seekers—most of them from Guatemala, El Salvador, and Honduras—have been returned to Mexican border cities so far.) “But when people get there, there’s a lot of sitting around on the Mexican side,” said Lisa Knox, an attorney with the Oakland, California–based Centro Legal de la Raza who first heard of these early call times a couple of weeks ago. “They could certainly have people arrive at 6 a.m. and still get to court on time.”

The courthouse in San Diego where immigration hearings take place is a 25-minute drive from the San Ysidro Port of Entry. Until recently, Knox said, most Remain in Mexico asylum seekers had court in the afternoon and were asked to show up around 8 or 9 a.m. “But, like everything in this process, there’s something very intentional in all of this to make it as difficult as possible,” she said, echoing a common refrain among advocates that the Trump administration is making the asylum process additionally burdensome so migrants give up on their cases or don’t show up at the border in the first place. 

For decades, migrants in Mexican border cities have been targeted by criminal organizations and even law enforcement, mainly because they’re easy prey: They’re not familiar with the area and often carry cash for their journey. But with the implementation of Remain in Mexico, migrants from Central America and other parts of the world aren’t just passing through these border cities—they’re being forced to wait there for months, trying to get by in shelters and even on the streets. As the nonprofit Human Rights First has documented, migrants who are subject to Remain in Mexico have been victims of rape, kidnapping, assault, and other violent crimes. Some have died while waiting at the border in Mexico, and, as a Los Angeles Times story recently reported, the “human cost is rising”—which is why advocates are aghast at the government’s decision to force women and children to report to the port of entry in the middle of the night. 

I recently spoke to a woman from Ecuador—I’ll call her Diana—who was told to show up to the border at 3:30 a.m. last week. She has been traveling with her teenage daughter and told me she was scared of having to walk through the dark streets of Tijuana, but she decided to do it because she didn’t want to miss her court date. “Thank God nothing happened to us,” Diana said.

Read the story on Mother Jones 

Less of This Too Without lawyers, children of color are being traumatized by police interviews

My client’s 4-year-old son was locked away from her, held in a back room by police officers in the Manhattan Child Advocacy Center (CAC) in New York City. When I asserted her right as a mother to refuse a police interview of her son without an attorney present, we were met with the threat of arrest. So, a young Black child sat scared and away from his mother, waiting to be interviewed by New York Police Department (NYPD) detectives in connection with a criminal investigation.

As a social worker on the Family Defense Team at the Neighborhood Defender Service of Harlem, I see police and child services workers attempt to put families in these positions all too often. Thankfully, due to the quick work of my team, our client and her son were reunited before police interviewed him. However, not all parents are able to secure such an outcome, and the systemic discrimination against poor, Black children continues today just as it did when police and media alike rushed to condemn five Black boys in 1989.

Our legal system has a long history of coercing confessions from the most vulnerable, as vividly depicted in “When They See Us,” Ava DuVernay’s mini-series on the Central Park Five case. That shameful legacy remains unbroken: In 2019, situations like my client’s, in which police attempt to separate children from parents and attorneys, are far too common.

Of course, instances of child abuse should be taken seriously. Child Services already has license to conduct interviews with children alone, but the police interview process goes well beyond that protection. When police talk to children for the purpose of a criminal investigation, without consent and without allowing families or children to consult an attorney, they trample our clients’ and their children’s constitutional rights.

Police interviews with children often happen at Child Advocacy Centers (CAC) like the one that held my client’s son. These are centers created with noble stated intention: to house resources for children in need of protection. In reality, those resources are secondary to their function as a law enforcement entity, one plagued by the biases of our legal and foster care systems.

These systems remain deeply prejudiced against people of color, who are constantly surveilled in their neighborhoods and therefore more likely to be targets of an Administration for Children Services (ACS) investigation. Just six percent of children in foster care in New York City are white compared to 43 percent of residents. That reflects a broader national trend: across the country, 44 percent of children in foster care are white, while white people represent 60.4 percent of the population. This prejudice makes the parallels between the legal system’s treatment of our clients and those the media have dubbed “the Central Park Five” unmistakable. Even though the children interrogated at CACs do not typically face criminal charges, their families — predominantly Black and Brown — are being targeted and torn apart.

From 2014-2017, there were more than 280,000 civil investigations conducted as a result of calls to the New York State Central Registry, the body that fields all calls about suspected child abuse. Just 8.3 percent of those investigations concerned white families.

In low-income neighborhoods, Black and Brown families seldom receive the benefit of the doubt. The investigations they are subjected to often have everything to do with poverty or race and nothing to do with the treatment of children. Their wealthier, whiter neighbors receive no such scrutiny.

Families of color are subject to discrimination before they even set foot in a CAC, just as the exonerated members of the so-called Central Park Five were racially targeted before them. They face a terrifying power dynamic during these investigations: NYPD detectives and ACS workers threaten arrest or the removal of children from their parents’ care, and the potential arrest of their children as well.

Meanwhile, the interview process itself is menacing: Children sit isolated from their loved ones as police grill them for long periods of time. Interviews sometimes include a strip search. There are many reasons a parent would not want to subject their child to a potentially traumatic police interview alone, and they have the right to make that decision.

Read the story on Truth Out 

Perspective How to deal with Justice Kavanaugh without impeaching him

The following article was written by Ian Millhiser, a lawyer and former law clerk for Judge Eric L. Clay of the United States Court of Appeals for the Sixth Circuit.

In 2006, years before Christine Blasey Ford publicly accused Supreme Court nominee Brett Kavanaugh of attempting to rape her when they were both in high school, the Yale Law Journal published a provocative paper.

The paper, “How To Remove a Federal Judge” by law professors Saikrishna Prakash and Steven D. Smith, lays out a road map for, well, how to remove a federal judge without resorting to the impeachment power. It argues that a provision of the Constitution stating that federal judges and justices “shall hold their offices during good behaviour” is widely misunderstood.

Contrary to the “virtually unquestioned assumption among constitutional law cognoscenti that impeachment is the only means of removing a federal judge,” Prakash and Smith argue that the term “good behavior” is a legal term of art that would have been understood by the founding generation to allow judges to be removed by “judicial process.”

Prakash, a professor at the University of Virginia, is a former law clerk to Justice Clarence Thomas. Smith, a professor at the University of San Diego, is a frequent contributor to conservative and libertarian publications. So even if the paper did not precede the Kavanaugh hearings by more than a decade, it would be difficult to argue that it was published in order to lay the groundwork for a liberal victory over a conservative Supreme Court justice.

The paper, which was published in one of the legal academy’s most prestigious journals but has had little impact on public policy so far, could wind up becoming important if Democrats capture Congress and the White House in the 2020 election.

On Saturday, the New York Times published a report bolstering the allegations against Kavanaugh.
The Times says that its reporters “found Dr. Ford’s allegations credible during a 10-month investigation” and that “at least seven people” corroborated a second allegation, by Kavanaugh’s Yale classmate Deborah Ramirez, who says that Kavanaugh “pulled down his pants and thrust his penis at” Ramirez without her consent. He has denied both allegations.

The report also revealed new allegations that Kavanaugh allegedly attended a drunken dorm room party in college “where friends pushed his penis into the hand of a female student” — although this third story is attributed to an alleged eyewitness and “the female student declined to be interviewed and friends say she does not recall the episode.”

The Times report, adapted from the forthcoming book The Education of Brett Kavanaugh: An Investigation, sparked calls for Kavanaugh’s impeachment, including from at least four presidential candidates.

But impeachment is a paper tiger. To remove Kavanaugh via impeachment, two-thirds of the senators present for such a vote would need to vote against Kavanaugh. And the Senate is malapportioned in ways that favor Republicans — in the current Senate, Democrats represent about 15 million more people, but Republicans control 53 percent of the seats.

Barring a historic political realignment, in other words, there is virtually no chance that there will ever be 67 senators who will vote to remove Kavanaugh. But, if Prakash and Smith are right about the Constitution’s good behavior clause, there won’t necessarily have to be.

Read the story on Vox