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Court Strikes Down 3 Provisions of Arizona Law; Leaves “Papers Please” Provision for another Lawsuit

June 26, 2012 - Posted by Maurice Belanger

On June 25, the U.S. Supreme Court struck down three of four provisions of Arizona’s SB 1070 that the U.S. government challenged on grounds that federal law preempts state law.

Struck Down
The sections of the law that were struck are:


  • Section 3 of SB 1070, which created a misdemeanor criminal offense for “willful failure to complete or carry an alien registration document.” The Court ruled that, with respect to alien registration, Congress intended to preclude states from enacting or enforcing their own complementary or auxiliary regulations. (6-2, with Justices Scalia and Thomas dissenting. Justice Kagan had recused herself from this case.)

  • Section 5(C) of SB 1070, which created a state misdemeanor criminal offense for an “unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor.” The Court ruled that the 1986 Immigration Reform and Control Act (IRCA) provided a comprehensive framework for regulating employment by immigrants not authorized to work. IRCA did not impose criminal penalties on unauthorized immigrants seeking work or engaging in work, and the imposition of such penalties by Arizona is thus preempted by federal law. (5-3, with Justices Scalia, Thomas and Alito dissenting.)

  • Section 6 of Arizona SB 1070, which gave state officers authority to arrest, without a warrant, any person the officer had “probable cause” to believe that the person “had committed any public offense that makes [that person] removable” from the U.S. The Court ruled that this section would give state officers greater authority to arrest noncitizens than authority given by Congress to trained federal immigration officers. “Congress has put in place a system in which state officers may not make warrantless arrests of aliens based on possible removability except in specific, limited circumstances,” the Court ruled, and therefore this provision is preempted. (5-3, with Justices Scalia, Thomas and Alito dissenting.)


Allowed to Stand, For Now
The provision that the Court did not strike down was section 2(B) of SB 1070, known as the “Papers Please” or “Show Me Your Papers” provision. This provision requires Arizona law enforcement officers to make a “reasonable attempt” to determine the immigration status of persons they stop, detain, or arrest if they have a “reasonable suspicion” that the person is unlawfully present. It also requires authorities to determine the immigration status of anyone who is arrested before the person is released. The chief concern about this provision is that it will lead to racial profiling; that Latinos will be stopped, detained, or arrested on some pretext, so that an officer can check on the immigration status of the individual.

During the oral argument of this case, the Government conceded that racial profiling wasn’t part of this particular challenge to the law; the Government’s challenge focused on federal preemption. In their decision, the Justices write that “Congress has made clear that no formal agreement or special training needs to be in place for state officers to ‘communicate with the [Federal Government] regarding the immigration status of any individual’.” All Section 2(B) requires, the Justices write, is that officers “conduct a status check during the course of an authorized, lawful detention. Since there is “uncertainty about what the law means or how it will be enforced” once it goes into effect, it is too early to say whether this section “will be construed in a way that creates conflict with federal law.”

Invitation to Return to Court
All eight Justices agreed that Section 2(B) is not preempted at this time. However, the Justices acknowledged legitimate concerns that may bring Section 2(B) back before the Court. “Detaining individuals solely to verify their immigration status would raise constitutional concerns,” the Justices wrote, and “[t]he nature and timing of this case counsel caution in evaluating the validity of [Section]2B.” The Justices concluded the section on this provision of the law, by writing: “This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect,” (emphasis added).

Other Challenges Pending on Papers Please Provision
The case was remanded to the 9th Circuit “for further proceedings consistent with this opinion.” According to legal experts following this case closely, it will take some days or even weeks before the injunction that is now in effect against Section 2(B) is lifted. There are other lawsuits pending against SB 1070, including lawsuits that address the racial profiling issue. In a lawsuit filed by advocates (Friendly House v. Whiting), the District Court did not grant a request for an injunction on Section 2(B) because it had already done so in the Federal Government’s case against Arizona. However, in denying the preliminary injunction, the District Court Judge wrote that, “Requiring Arizona law enforcement officials and agencies to determine the immigration status of every person who is arrested will, on its face, impermissibly expand the scope of detention for many arrestees because their liberty will be restricted while their status is checked,” and that it appeared that plaintiffs “could demonstrate a likelihood of success on the merits of this claim.”

So, it is unclear at this point whether Section 2(B) will be allowed to go into effect in the near term. Even if it were to go into effect, it is not clear what the state may accomplish. As Peter Spiro pointed out on SCOTUSblog, the Arizona law “may require state law enforcement to make immigration status determinations, but there isn’t much that the state can do with determinations once made. The state can pass the information along to federal immigration authorities, who are then free to do nothing.”

Indeed, in a call on June 25 to discuss the implications of Supreme Court’s decision, a DHS official reiterated that it will not allow the State of Arizona to determine DHS priorities, and it will not move to take custody of aliens who do not fit within DHS enforcement priorities. As of June 25, DHS is suspending the seven 287(g) “Task Force” agreements it had with law enforcement agencies in Arizona. (“Jail” agreements, where individuals are scrutinized under 287(g) authority once they are brought to jail, were not affected by the DHS announcement—nor were 287(g) agreements elsewhere in the country. The Secure Communities program, which presents its own set of related problems, was also not included in the DHS announcement.)

Justice Department officials said that they will be closely monitoring what goes on in Arizona and that the Department will “vigorously enforce prohibitions on discrimination.” The Department has set up a hotline for reporting civil rights concerns arising from the implementation of the law. The number is 855-353-1010.

Hardship for Communities Ahead
Still, the Court’s decision to postpone a final decision on this provision is unfortunate, as it will, if not blocked due to other challenges, lead to racial profiling and harassment of people based on what they look like and how they speak, regardless of their immigration or citizenship status. Until the issue is finally resolved, the rights of Arizonans will be violated.

Resources on our Web site
Check the Forum’s Web site for a collection of information pertaining to the Supreme Court decision, including text of the decision, reactions to it and, as analysis becomes available throughout the week, we will continue to post links to this page.

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Immigration Policy Update for June 22, 2012: Immigration Policy Conversation Picks Up

June 22, 2012 - Posted by Maurice Belanger

Romney Addresses Immigration at NALEO Conference


On June 21, Republican presidential candidate Mitt Romney gave a speech at the annual conference of the National Association of Latino Elected and Appointed Officials (NALEO). Mr. Romney started off by attacking the President’s record on the economy. On the issue of immigration, Mr. Romney again began by attacking the President’s record. He addressed the question of whether he would let stand “the President’s executive action” [deferring the deportation of certain young undocumented immigrants]. He said that he would put in place his own “long-term solution that will replace and supersede President Obama’s temporary measure,” that would “prioritize measures that strengthen legal immigration.” However, the President’s action dealt with a certain population of undocumented immigrants. For undocumented immigrants, Mr. Romney offered only “a path to legal status for anyone who is willing to stand up and defend this great nation through military service.” That would apparently not include the majority of persons covered by the President’s “executive action.”

Perhaps the most concrete change offered by Mr. Romney is to propose to “exempt from caps the spouses and minor children of legal permanent residents,” so that spouses and minor children of LPRs would be treated the same as spouses and children of U.S. citizens. He also proposed to offer green cards to anyone who graduates from a U.S. school with an advanced degree and to expand temporary worker programs.

With the exception of those who serve in the military, Mr. Romney was largely silent on undocumented immigrants. Without addressing the undocumented, it will be difficult for him to live up to his promise to “find a long-term solution.”

You can read Mr. Romney’s remarks at the NALEO Conference here, and you can read his “Strategy For Bipartisan & Long-Term Immigration Reform” here.

Reaction to Administration’s Announcement on Deferred Action


After the Administration’s announcement on June 15 that it would defer enforcement action for certain young undocumented people who came to the U.S. as young children, reaction in Congress has been predictably partisan. Rep. Lamar Smith (R-Texas), Chair of the House Judiciary Committee and a persistent critic of an Administration enforcement strategy that focuses on national security and public safety threats, issued a statement saying that the Administration “put partisan politics and illegal immigrants ahead of the rule of law and the American people.” In a survey of House and Senate Republican offices by Think Progress, only one (Rep. Ileana Ros-Lehtinen of Florida) supported the policy, while 147 opposed. Two members of the House have introduced legislation that would prevent the Administration from offering deferred action. Rep. David Schweikert (R-Ariz.), has introduced H.R. 5957, prohibiting the Secretary of Homeland Security from granting deferred action or otherwise suspending “the effectiveness or enforcement of the immigration laws. Rep. Ben Quayle (R-Ariz.), has introduced H.R. 5953, which would roll back not only the June 15 announcement, but the Administration’s earlier prosecutorial discretion initiative. Neither of these bills stand a chance of becoming law. Rep. Steve King (R-Iowa) is reported to be considering suing the President over the deferred action policy. On the other side of the aisle, Rep. John Conyers (D-Mich.) praised the President’s announcement and compared the current immigration challenges facing the nation to the civil rights struggles of the 1960s.

The public, meanwhile, favors the policy by a 2 to 1 margin, according to a Bloomberg National Poll. Among independents, the policy is favored by more than a 2 to 1 margin. For Republicans, this support in the general electorate compounds a problem they’ve had with the Latino electorate, which has heard plenty of harsh rhetoric coming from Republican politicians. The move by the Administration left Republicans struggling to find a message, and this fact is reflected in some of the post-announcement newspaper headlines: “Sen. McConnell: Waiting for Romney on Immigration” (Wall Street Journal); “Republicans wait for Romney to tell them his position on immigration” (Washington Post); “Republicans refine immigration message after Obama's scoop” (CNN); “GOP caught flat-footed on immigration” (Politico); “GOP stuck on immigration” (The Hill).

We will see in the coming days how Mr. Romney’s remarks at NALEO’s convention play out among his Republican colleagues.

Resources on Deferred Action


The Forum has compiled a list of resources having to do with the Administration’s June 15 deferred action announcement, and we will continue to add the list, which can be found on our DREAM Act page. CLICK HERE. You can also reach the page by clicking on the graphic on our home page.

The main point to stress right now is that there is no process in place yet for applying for deferred action. USCIS was given 60 days from June 15 to devise a process for people who want to apply. There are reports already of “notarios” reaching out to people to try to get their money to “help” them apply. There is nothing to apply for at this time. USCIS will post information on their Web site when they have it.

The Government has set up two telephone hotlines. Individuals can call the USCIS hotline at 1-800-375-5283 for more information; for people in deportation proceedings an Immigration and Customs Enforcement hotline is at 1-888-351-4024. USCIS also has a page of resources on its Web site with information on avoiding immigration scams. The American Immigration Lawyers Association has a Web site dedicated to educating the public on notario fraud. Go to http://www.stopnotariofraud.org/.

House Passes DHS Appropriations Bill


On June 7, the House passed its version of the appropriations bill that will fund the Department of Homeland Security for the fiscal year 2013. During the floor debate, there were several immigration-related amendments that passed. A few highlights (lowlights):

The Senate passed its version of the DHS spending bill out of the Appropriations Committee, but debate for the whole Senate has not yet been scheduled. The Administration issued a Statement of Administration Policy indicating the President would be advised to veto the House bill in its current form.

Bill Would Exempt DHS from Environmental Laws on Federal Lands


On June 19, the House passed H.R. 2578, the Conservation and Economic Growth Act. Included in this bill is a measure originally introduced as H.R. 1505, the National Security and Federal Lands Protection Act, sponsored by Rep. Rob Bishop (R-Utah). This bill would exempt the Department of Homeland Security (DHS) from complying with dozens of environmental laws on lands within 100 miles of the northern and southern land borders. The Bishop bill is included in H.R. 2578 as Title XIV. This bill will likely not be taken up in the Senate.

Senate Would Roll Back Labor Regulation


On June 14, the Senate Appropriations Committee passed a bill (S. 3295) to fund the Departments of Labor, Health and Human Services, Education, and Related Agencies for the 2013 fiscal year. Included in this bill was an amendment sponsored by Senator Richard Shelby (R-Ala.) that would prohibit the use of funds to carry out a Labor Department rule governing the H-2b temporary visa program for non-agricultural seasonal workers. The rule, which has yet to be implemented, would provide strengthened protections for workers against employer abuse of the program. The amendment was adopted by a vote of 19-11 with five Democrats joining Committee Republicans. Here

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A Human Face behind the Refugee Statistics

June 21, 2012 - Posted by Guest


A post by National Immigration Forum communications intern Minola Fernando:

Yesterday, on World Refugee Day, I had the opportunity to attend No Place Called Home, a play presented at the Kennedy Center in Washington by the U.N. High Commissioner for Refugees.

I learned that out of 43.7 million refugees worldwide, 4.7 million are Iraqis who were displaced due to military intervention in their country. Playwright and actress Kim Schultz and musician Amikaeyla Gaston brought this staggering statistic to life.

When the U.S. and its allies invaded Iraq, the effects were devastating for many Iraqi civilians. Doctors, lawyers, artists and cab drivers, men, women, and children — all were affected. Many made the difficult decision to leave their homes and the lives they were used to behind in order to protect their families. Many had no choice but to leave. Some left because there was no longer anything or anyone left in the place they used to call home.

It can be easy to hear a statistic and overlook the fact that behind a number are real people with stories of sadness and suffering, but who also have hope for the future. Schultz and Gaston gave members of the audience an opportunity to “meet” these people and learn about the circumstances many of them endured that put them in the situations they are in today. They witnessed the murders of friends and family, and experienced violence and torture. They often could not even find refuge in the places to which they fled, as they were ostracized for being outsiders.

Although the war in Iraq may officially be over, millions of people still suffer the consequences. Not only on World Refugee Day but every day we must recognize the plight of refugees and reflect on their stories, dreams, and hopes for a future in which they may once again have a place to call home.

A Reflection on World Refugee Day

June 20, 2012 - Posted by Guest

A post by National Immigration Forum policy intern Hilla Shimshoni:

Today, on World Refugee Day, it is important to recognize the challenges refugees face — and also the contributions refugees have made to the United States.

In 2011, the number of people who were forced to flee across borders reached 800,000, an 11-year high. By the end of the year, 42.5 million people were refugees, were displaced internally in their home countries, or were in the process of seeking asylum.

In 2010 and early 2011, I had the opportunity to work with refugee communities in Egypt, where I worked at an organization that provides refugees with legal aid as they await resettlement. For many years now, people fleeing an array of war-torn countries have converged on the already crowded streets of Cairo. Refugees and undocumented people living in the shadows in Cairo include Sudanese, Iraqis, Somalis and Ethiopians. The U.N. tallied some 40,000 refugees living in Egypt officially in 2010, but the real figure is far higher — likely north of 250,000.

Embroiled in its own political turbulence and facing severe underfunding for its refugee programs from the international community, Cairo is far from an ideal place to land. Hatred and violence toward the refugee population are daunting, and medical and educational services are scarce.

And so today, on a personal level, I must remember those who came to our organization but two years later still remain in limbo: African women who endured a monthlong escape from violent warlords in Somalia only to be sexually abused or preyed on by Egyptian employers who refuse to pay them for weeks of labor, and Iraqi families who escaped Baghdad and assassination attempts in retaliation for their family members’ work with Coalition forces or American companies. I remember today that despite our nation’s promise to help those Iraqis who helped us, we have failed them and have continued to ignore the huge refugee problem that resulted from the war.

But I also want to highlight refugees who, thanks to U.S. resettlement policies, were able to come to this country and reach unimaginable success and accomplishments. Their select ranks include Nobel Prize winner Philip Emeagwali, Oscar-winning director Milos Forman (One Flew Over the Cuckoo's Nest), Pulitzer Prize winner and New York Times editor Max Frankel, Iranian writer and women’s rights activist Mahnaz Afkhami, political theorist and philosopher Hannah Arendt, former Secretary of State Madeleine Albright, and, of course, Albert Einstein.

For the past several years, the United States has capped its refugee admissions at 80,000 per year. As humanitarian crises and political instability around the world continue to produce extensive displacement, we must continue to welcome these new Americans and recognize their contributions.

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Immigration Policy Update: Relief for Dream-Eligible Young People; Reform Movement Grows

June 15, 2012 - Posted by Maurice Belanger

Administration Announces Deferred Action for Certain Young People


On June 15, the Obama Administration announced that it would grant deferred action (a form of administrative relief from deportation) for certain young people who were brought to the U.S. as young children and meet certain criteria. Persons will be eligible for deferred action if they can demonstrate that they:

  • came to the United States before the age of sixteen;

  • were in the U.S. on June 15 and have continuously resided in the United States for at least five years;

  • are currently in school, graduated from high school, obtained a general education development certificate, or were honorably discharged from the Coast Guard or Armed Forces;

  • have not been convicted of certain crimes;

  • are not a threat to national security or public safety; and

  • are not above the age of 30.


Deferred action will be granted in two-year increments for those who can prove they are eligible. According to the Associated Press, the deferred action could affect as many as 800,000 people. Existing regulations governing deferred action provide for work authorization for those who can show it is an economic necessity.

It will take some time for the new directive to be implemented. A DHS press release states that a process for applying for this relief will be implemented by Immigration and Customs Enforcement and U.S. Citizenship and Immigration Services within sixty days.

There is an extensive Q and A up on the DHS Web site, where you can get more information about this announcement and who will qualify for deferred action.

Advocates have urged the Administration to go beyond its case-by-case prosecutorial discretion review of pending deportation cases, and DREAM-eligible youth have a particularly compelling case for relief. At the end of May, 100 law professors signed a letter to the President, outlining steps the Administration could take with existing legal authority to protect potential beneficiaries of the DREAM Act. One of those existing authorities, deferred action, is what the Administration announced it would implement, consistent with its effort to focus enforcement resources on individuals who represent public safety or national security threats.

The Forum’s press release reacting to the Administration’s announcement can be found here.

Immigration Reform Tent Gets Bigger


Last week, two events highlighted a growing gap between politicians in Washington and their constituents on the issue of immigration reform.

Evangelical Leaders Release Principles for Immigration Reform
On June 12, representatives of a group of more than 150 evangelical leaders held a press conference on Capitol Hill announcing the release of an “Evangelical Statement of Principles for Immigration Reform.” These leaders were organized by a group calling itself the Evangelical Immigration Table, consisting of, among others, Leith Anderson, President of the National Association of Evangelicals; Dr. Richard Land, President of the Southern Baptist Ethics and Religious Liberty Commission; and Samuel Rodriguez, President of the National Hispanic Christian Leadership Conference. In conjunction with the press conference, the evangelical leaders published their Principles, along with signatories, in a full-page ad in Politico.

Included among the signatories were leaders who are very influential in conservative constituencies, including Jim Daly of Focus on the Family, and Pastors who command very large congregations, including Bill Hybels, of the Willow Creek Community Church in South Barrington Illinois (with an average Sunday attendance of 24,000) and Max Lucado, of the Oak Hills Church in San Antonio, Texas, who has more than 400,000 followers on Twitter.  The collection of evangelical leaders who came together to agree on the immigration reform principles is remarkable, given that, on many other issues, there are strong disagreements among them.

Representatives of the Evangelical Immigration Table followed up the press conference with visits to House, Senate, and Administration leaders to discuss their principles and the need for immigration reform. The group will begin airing radio ads featuring Dr. Richard Land and Luis Cortés of Esperanza, who talk about the hardship caused by our broken immigration system and the need to fix it. The ads will air beginning this week on Christian radio stations in Florida and Colorado, two states that will be critical in the upcoming election and that contain large populations of evangelicals.

You can view the principles, see the signatories, listen to the radio ad, and view a recording of the press conference at www.evangelicalimmigrationtable.com. A press release on the Forum’s Web site highlights some of the statements made by some of the signatories. You can also scroll through some of the press coverage on our news clippings page.

Southeast Summit: Forging a New Consensus on Immigrants and America
The evangelical press conference came one day after 150 individuals from Alabama, Florida, Georgia, North Carolina, South Carolina and Tennessee convened in Atlanta to discuss the importance of immigrants and immigration to the region’s economic and cultural vitality. In attendance were leaders from the business, law enforcement and faith communities, participating in a discussion about a realistic and workable solution at the federal level for our broken immigration system.

Among the speakers at this conference were Southern Baptist Convention Ethics and Religious Liberty Commission President Dr. Richard Land, North Carolina Farm Bureau President Larry Wooten, Tennessee Department of Safety & Homeland Security Deputy Commissioner Larry Godwin, Nashville Area Chamber of Commerce President and CEO Ralph Schulz, Utah Attorney General Mark Shurtleff, Miami Archbishop Thomas Wenski, and Uvalda, Georgia, Mayor Paul Bridges.

In his Keynote address to the conference, former U.S. Attorney General Alberto Gonzales said that, “We don’t need a vigilante state government to fill in for a federal government that’s not handling its job,” and that it is “time for our federal officials to step up, show leadership and pass comprehensive immigration reform.”

The conference was the second in a series of regional events where leaders (primarily conservative, faith, business and law enforcement leaders) are coming together to discuss rational solutions for our broken immigration laws and represents an alternative to the kinds of policies being enacted in states like Arizona and Alabama.

For more information, read this release from the National Immigration Forum. More information about the Forging a New Consensus initiative, including recordings from the Mountain West Summit held in October 2011 in Salt Lake City, can be found at http://forgingconsensus.org.

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Immigration Policy Update for June 1, 2012

June 01, 2012 - Posted by Maurice Belanger

Action: There’s still time to Comment on the Family Unity Waiver

The USCIS proposed regulation that would make an important change in processing waivers for certain immigrants seeking to legalize their status (sometimes known as the “family unity waiver”) will close for public comment at the end of the day on June 1. There is still time for you to make a comment. Go to this page of our Web site for instructions on how you can make your voice heard. You will also find a list of concerns about the proposed rule that you can use in your comment. The whole process takes only a few minutes.

Appropriations Update

The Senate Appropriations Committee met last week to vote on the spending bill for the Department of Homeland Security. Highlights of the immigration-related provisions in the bill were briefly summarized in this Policy Update. The full Committee made no changes to these immigration-related provisions, and the Senate’s Committee report can be found here.

The House will likely consider its DHS Appropriations bill on the Floor the week of June 4. It is unclear when the Senate will act.

Rep. Rivera Introduces STARS Act

On May 30, Rep. David Rivera (R-FL) introduced the Studying Towards Adjusted Residency Status (STARS) Act. The bill is essentially a much narrower version of the DREAM Act. It would offer conditional residency to undocumented persons who were brought here before the age of 16 provided they have graduated from high-school, have been accepted into a four-year college or university, and meet other conditions. After they graduate from college or university, they may apply to extend their conditional status for another five years, during which time they may apply for permanent residence. (See this fact sheet prepared by Rep. Rivera’s office.)

While this bill would help far fewer young people than the DREAM Act, it is unclear if Rep. Rivera could get much support from other members of his party for even this limited version. There are currently no co-sponsors.

Other materials related to the bill prepared by Rep. Rivera’s office can be found on this page of his Web site.

House Passes Two Border Bills

On May 30, the House passed two bills relating to border security in a special procedure for expedited consideration of non-controversial bills.
The first is the Secure Border Act (H.R. 1299), which directs the Secretary of Homeland Security to submit to Congress a comprehensive strategy for gaining “operational control” of the international borders of the United States within five years.  The bill uses a definition of “operational control” that is not practical to achieve. (We discuss the issue of operational control in this paper on our Web site.)

The second bill passed is the Jaime Zapata Border Enforcement Security Task Force Act (H.R. 915), which writes into law the inter-agency Border Enforcement Security Task Force program that has been in operation for years.

Forest Service Told not to Use Border Patrol Agents as Interpreters

On May 31, the U.S. Department of Agriculture’s civil rights office made public a decision saying that the Forest Service discriminated against Latinos when it used Border Patrol Agents as translators. The review of Forest Service policy came in response to a to a complaint filed by the Northwest Immigrant Rights Project on behalf of a woman whose partner died while fleeing from Border Patrol Agents on the Olympic Peninsula of Washington. She and her partner were stopped by Forest Service agents, who called the Border Patrol to translate.

Among other things, the Forest Service nationally was ordered to develop and implement a language access policy that provides meaningful access to Limited English Proficient (LEP) individuals. Translation by the Border Patrol does not meet that requirement, as the decision states, “It is axiomatic that a policy that causes individuals to actually flee from the service being provided does not provide meaningful access.”

For more information, you can read this summary of the Department of Agriculture Civil Rights Office order and this press release from the Northwest Immigrant Rights Project. A story about the Border Patrol on the Olympic Peninsula appeared in the New York Times on May 28.

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