Emil Guillermo: Getting justice could be even harder with Judge Gorsuch on the Supreme Court
March 21, 2017 9:14 PM

We already know how hard it is to get justice in America. It might get even harder. 

In my AALDEF podcast, I talk to two Asian American professors who have filed a discrimination suit against the University of Michigan.
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The professors filed in Michigan state court. But where federal laws are concerned, anyone seeking justice has to be concerned with Neil Gorsuch.

So far, he's the odds-on favorite to become the justice who breaks the current 4-4 tie that exists in the High Court. 

Given that Democrats don't have the votes in the Senate to deny Gorsuch's bid to the Supreme Court, it makes his confirmation hearings more like an epic uphill battle.

Much harder than getting Donald Trump to stop tweet-lying.

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If you caught any of it on TV, then you know the Trump pick just had to smile and play a folksy Jimmy Stewart-type.

Unwilling to say anything on issues he may have to rule on, he played dodgeball at the highest level.

On hot button issues like abortion, Gorsuch did say Roe v. Wade is a precedent and that he respects precedent. But he added: "I'm not in a position to tell you whether I'd personally like or dislike any precedent. That's not relevant to my job." 

When California's Sen. Dianne Feinstein asked if Roe was a "super precedent," Gorsuch would only say, "It has been reaffirmed many times."

But later, when asked what he'd do if Trump had asked him to rule against Roe, Gorsuch seemed so principled: "I would've walked out the door. It's not what judges do."

So was it a litmus test on abortion? Maybe? Given his stonewall answers to serious questions, it was as good as we got. 

From the hearings so far, this is what we've learned about Gorsuch: He said he's human, that he puts his ego aside, and as a judge, he has "one client, it's the law."

He also tried to be funny, in a charming, folksy way. Given how serious he is and the seriousness of the issues he must opine on, anything he says that's slightly less than 100 percent serious deserves at least a chortle. 

Not a belly laugh. A chortle.

"We're all human beings. I get that," said Gorsuch. "I'm not an algorithm, although I think eBay is trying."

See what I mean? A chortle.

So he's not all that funny. 

And, as it turns out, not all that human either.  
 
Just ask the family of the late Grace Hwang.

WHAT GORSUCH DID TO GRACE HWANG
Hwang, an immigrant from Taiwan who capped a long career in corporate law by becoming a university professor at Kansas State, was also a much-loved board member of AALDEF.

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After a nearly ten-year struggle with cancer, she died last year at age 60.

In an opinion piece that ran in the San Francisco Chronicle on March 14, the Hwang family talked about how Grace continued to work through her illnesses and treatment. 

Even when it was found she had leukemia, Grace continued teaching from her hospital bed. 

After a six-month paid leave to deal with her illness, she wanted to go back to work. Her family said due to a flu epidemic on campus, Grace had asked that her leave be extended.

But Kansas State rejected the idea and said she couldn't work from home.

Grace sued the school, claiming the university violated the law requiring an accommodation for her disability.

With her job and life on the line, Grace took the matter to the 10th Circuit and encountered Judge Gorsuch.

In May 2014, Gorsuch wrote the opinion siding with the school and ruled that the purpose of federal law was "not to turn employers into safety net providers for those who cannot work," and that the six months' leave she already had received was "more than sufficient."

So much for Gorsuch the human being. 

At the hearing Sen. Mike Lee (R-Utah) brought up the case.

Here's Gorsuch's response:

I can't remember if it was Kansas or Kansas State, she was asking for another six months off and the university said no, and she sued under the Rehabilitation Act, which prescribes that reasonable accommodations must be provided to workers to perform their essential job functions. But to prevail they have to show they can perform their essential job functions. It was undisputed in that case that she just couldn't, through no fault of their own. And the district court said that's just not a claim under the Rehabilitation Act. Maybe for breach of contract or something else, not under federal statutory law, that's my recollection sitting here.

Undisputed that she couldn't work? Not according to the Hwang family, who still claim Grace was able to work if she had been allowed to do so from home. 

The family called Gorsuch's ruling a "callous disregard for Grace and her condition."

And it's not an isolated case. 

Several senators brought up the TransAm Trucking case, also known as the "frozen trucker" case, in which driver Alphonse Maddin abandoned his truck in freezing conditions and risked hypothermia to get gas. He was fired by his company for disobeying orders.

Maddin sued and won in the 10th Circuit; there was one dissenter.

Gorsuch found for the company, which astonished Sen. Al Franken (D-MN).

"I made a career in identifying absurdity," said Franken, who laid out the case in detail at the hearing. "It makes me question your judgment."

It was one of the few times Gorsuch seemed bothered. 

The rest of the time, it was softballs like the ones thrown to him by that fun-loving guy, Sen. Ted Cruz (R-Texas). He asked Gorsuch about his love of the rodeo and its practice of "mutton busting," where children and animals are abused for kicks. 

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Guns? Abortion? It was that mutton busting question that was more revealing than we know. Terrorizing kids and woolly sheep? The human that is Gorsuch just couldn't stop talking about that.

That and his judge's black polyester robe, his symbol of his commoner's touch. 

Still, there was just enough in his past opinions to paint an unflattering picture.

Here's a judge who has easily betrayed the common man and woman seeking justice from the law.

Just ask the frozen trucker and the family of Grace Hwang.

PROFESSORS SUE UNIVERSITY OF MICHIGAN FOR DISCRIMINATION
This brings us back to our podcast episode involving two married Asian American professors, Scott Kurashige and Emily Lawsin, who filed a discrimination suit against the University of Michigan in December that was just made public this month.

Kurashige was a full professor with tenure, and director of the Asian Pacific Islander American Studies program until he was fired in 2013 after he exposed discriminatory patterns in faculty hiring and student admissions at Michigan.

Lawsin was a senior lecturer, who was on leave caring for a Down syndrome child recovering from open heart surgery when she received a layoff notice. She fought it and is still on staff, but has been barred from teaching. 

The lawsuit cites violations of Michigan's Elliott-Larsen Civil Rights Act and the state's Persons with Disabilities Civil Rights Act. 

Discrimination cases are among the most difficult to win in these times. In this interview, Kurashige and Lawsin spoke about their case exclusively to Emil Amok's Takeout.

Listen to the new podcast interview with Scott Kurashige and Emily Lawsin here.


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Emil Guillermo is an independent journalist/commentator.
Updates at www.amok.com. Follow Emil on Twitter, and like his Facebook page.
The views expressed in his blog do not necessarily represent AALDEF's views or policies.


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Emil Guillermo: Thanks to Hawaii and Ismail Elshikh, Travel Ban 2.0 Blocked For Now
March 16, 2017 10:39 AM

I admit I wasn't sure if Islamophobia was going to be beaten back and stopped this time around.

But now a Native Hawaiian judge in the nation's most Asian American state has spoken for all. Maryland piled on for good measure after the Hawaii court's decision. But the effect is the same.

Trump's revised travel ban is dead until Trump can revive it with some legal mouth-to-mouth. (Now there's an image for you.)

LISTEN to my podcast about the travel ban, hate crimes, and Islamophobia, including an interview with Jenn Fang, creator of the Reappropriate blog, here.

When Trump signed travel ban 2.0 as Executive Order 13780 on March 6, it appeared to be sanitized from most of the obviously unconstitutional elements that were in the first travel ban stymied by the courts.

It even had provisions to allow for certain business and family travel. The possibility of waivers for some people was written into the order.  

And yet, it was still a ban on six majority-Muslim nations that appeared to be religious discrimination, a violation of the First Amendment's Establishment Clause.

The government lawyers tried to make it all smell legal enough.

Turns out it wasn't as fragrant as a Hawaiian plumeria.

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U.S. District Judge Derrick Kahala Watson, of Native Hawaiian ancestry, issued a nationwide
temporary restraining order against the revised travel ban on Wednesday.

With just hours before the travel ban 2.0 was set to take effect, federal judge Derrick Kahala Watson in Honolulu halted it nationwide by issuing a temporary restraining order to the listed plaintiffs: the State of Hawaii and Ismail Elshikh.

You heard a lot about Hawaii, but not much about Elshikh in most of the news reports.

Elshikh was critical to the important issue of standing to file the lawsuit.

Hawaii's claims were similar to the state of Washington's in the suit that stalled the first travel ban. Like Washington, Hawaii's universities would suffer monetary harms, as would the state as a whole--especially its important tourism industry.

But Elshikh was the named human face in this suit. 

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An American citizen of Egyptian descent and a Hawaii resident for over a decade, Elshikh is the Imam of the Muslim Association of Hawaii and a community leader. He has a wife and five kids, all of them U.S. citizens.

It was his mother-in-law in Syria, who last visited in 2005 and does not have a visa, who propelled his legal standing. The family applied for an I-130 Petition for Alien Relative in September 2015. 
 
On January 31, 2017, Elshikh called the National Visa Center and was told the visa had been put on hold because of the first travel ban. When the second ban was announced, Elshikh feared his mother-in-law would be barred from entry unless she was granted a waiver. 
 
Apparently, the possibility of a waiver in travel ban 2.0 didn't invalidate his legal claims.

In his decision, the judge ruled that "Dr. Elshikh has standing to assert his claims, including an Establishment Clause violation."

"[My children] are deeply affected by the knowledge that the United States--their own country--would discriminate against individuals who are of the same ethnicity as them, including members of their own family, and who hold the same religious beliefs" Elshikh is quoted in the decision. "They do not fully understand why this is happening, but they feel hurt, confused, sad."

Sad. That's a word Trump likes to use in tweets.

If Trump reads the decision, he may be sad to see his own words used against him. Like when he referred during the campaign to a "Muslim ban" and said it had "morphed into an extreme vetting." Or how a press release stated unequivocally: "Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States."

At a Wednesday night rally in Nashville, Trump was dismayed that even what he called the "watered-down version" of his travel ban had failed. He called the judge's decision an example of "judicial overreach." 

But the court's rejection of the executive order is all about Trump's "executive overreach."

On the Establishment Clause issue, the judge cited the government's claim that the executive order was not religiously motivated because "the six countries represent only a small fraction of the world's 50 Muslim-majority nations... and covers every national of those countries, including millions of non-Muslim individuals."

Judge Watson saw through the ruse: "The illogic of the Government's contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed."

It exposed Trump's strained attempt to justify his xenophobic overreach. 
 
But it took the State of Hawaii and Ismail Elshikh to be brave enough to stand up to it--for all of us.

Read the decision here.
 
Listen to my podcast here: A federal judge in Hawaii leads the way on travel bans, Islamophobia, and why it matters.



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Emil Guillermo is an independent journalist/commentator.
Updates at www.amok.com. Follow Emil on Twitter, and like his Facebook page.
The views expressed in his blog do not necessarily represent AALDEF's views or policies.


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Emil Guillermo: Is Srinivas Kuchibhotla the Vincent Chin for South Asians?
March 13, 2017 2:25 PM

If you still haven't heard the story of Srinivas Kuchibhotla, don't worry.

It's unclear if even Donald Trump knows, remembers, or cares. Sort of like his health care promises.

In his joint address before Congress, the MCOWH (man currently occupying the White House, in case he is still #NotMyPresident) topped his speech with a diversity rap that mixed kudos for Black History Month with a denunciation of the rash of hate threats targeting Jews, and an odd reference to a " shooting in Kansas City."

Trump said it was a reminder that "while we may be a Nation divided on policies, we are a country that stands united in condemning hate and evil in all its forms."

So is he going to fire Steve Bannon? 

Because it was the spirit of alt-right wrongness perpetrated by Bannon's Breitbart News that has informed Trump on matters of race, and that in turn has enabled all the hate and evil we see toward immigrants and people of color.

Even Trump's phraseology of a "shooting in Kansas City" on speech night was a veritable whitewashing of the murder of Srinivas Kuchibhotla. 

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I bet Trump has long forgotten the Garmin tech worker, who was killed on February 22, two weeks before his 33rd birthday.

On the day he was murdered, Kuchibhotla was having a whisky with his colleague, Alok Madasani, at a bar in the Kansas City suburb of Olathe, about 20 miles away.

The alleged shooter was Adam Purinton, 51, a Navy veteran, a former air traffic controller and pilot, who once worked for the FAA, and lived in a comfortable Kansas City suburb, according to news reports.

But when Purinton saw the two men, he didn't know they were Indian, highly-educated tech workers. He saw their skin, saw them as others, and opened fire, yelling," Get out of my country."

Purinton shot and injured another bar patron, Ian Grillot, a white American, before fleeing. Purinton was picked up later in another bar and now faces murder charges for the one person who didn't survive, Kuchibhotla.

Purinton's lawyers had him before a judge last week to ask for more time. 

But the Indian community finally has begun to speak out in earnest. 

Some have even suggested this could be a Vincent Chin moment for Indian Americans, and for the broad group of Asian Americans affected by Islamophobia.

I tend to agree. But is Kuchibhotla Vincent Chin? 


IS KUCHIBHOTLA VINCENT CHIN?
In some ways, yes. Both were immigrants, and that set off some animus in their killers.

Purinton seems to have been spurred on by anti-immigrant rhetoric, and the FBI has said it is now considering it a hate crime.

Ronald Ebens, however, told me he didn't see Chin as a foreigner. He said the altercation that ensued began with the auto worker and his son-in-law hurling a racial epithet toward someone they saw as the personification of the Japanese auto industry.  

Ebens claimed in my interview with him that he was sucker punched, declined to fight, but then eventually pursued Chin with a baseball bat. That's when he told me, he lost it.

In my interview with Ebens in 2012: "If he hadn't sucker punched me in the bar...nothing would have ever happened. They forced the issue. And from there after the anger built up, that's where things went to hell."

The punchline to the story is what happened in court.

Ebens and his son-in-law, Michael Nitz, were allowed to plea bargain in a Michigan court to escape mandatory jail time for second degree murder. Ebens pleaded guilty; Nitz pleaded nolo contendere. Both men got this sentence: three years' probation, a $3,000 fine, and $780 in court costs.

No jail time. Eventually, there was a federal civil rights prosecution that acquitted Nitz and found Ebens guilty, sentencing him to 25 years in prison. But then Ebens appealed and was acquitted in a second trial. 

Ebens did lose a judgment in a civil court, which still has not been satisfied. With interest, the amount Ebens owes the Chin estate is estimated to be somewhere around $10 million.

But there was no jail time for any of the perps, and no finding of a hate crime.

In that sense, the Kuchibhotla case and the Chin case have already diverged. 

Purinton is behind bars with bail set at $2 million, and the FBI is investigating the murder as a possible hate crime.

The cases do converge in the important point of serving as the final straw for many South Asians, who might have thought their success, wealth, and obvious contributions to American society would inoculate them from hate.

It doesn't.

HATE VIOLENCE REPORT
The Kuchibhotla case coincides with a new SAALT report on hate crimes.  

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According to a SAALT database established after the attacks in San Bernardino and Paris in 2015, in one year up to November 15, 2016, there have been 207 incidents of hate violence and xenophobic political rhetoric directed at South Asian, Muslim, Arab, Sikh, Hindu, and Middle Eastern Americans.

That's a 34 percent increase in less than a third of the time covered in SAALT's 2014 report.

Here's a breakdown from the report: 140 incidents of hate violence, 67 incidents of xenophobic political rhetoric, of which 196 (95 percent) were motivated by anti-Muslim sentiment. And one in five instances of xenophobic rhetoric came from Donald Trump.

The report acknowledges its threshold of a hate crime may be lower than the legal definition, but points out that the 2015 hate crime statistics show a 7 percent increase in hate crimes overall, including a whopping 67 percent increase in hate crimes against Muslims. 

Taken as a whole, SAALT's stats paint "a full picture of the xenophobia our communities face," the report says. It concludes that while all South Asians are not Muslim, and not all Muslims are South Asian, "it is enough simply to be perceived as Muslim to be a target of hate violence and xenophobic political rhetoric."

That's seems to be what happened in Kuchibhotla's case.

And so while some details of the Purinton shooting are very different, the effect on the South Asian community is very much like the Vincent Chin case. 

It's a story that has made a new generation woke.

NOTE: In an upcoming podcast of Emil Amok's Takeout, I talk to a Chinese American's early reaction to the Kuchibhotla case, and how Islamophobia affects us all.

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Emil Guillermo is an independent journalist/commentator.
Updates at www.amok.com. Follow Emil on Twitter, and like his Facebook page.
The views expressed in his blog do not necessarily represent AALDEF's views or policies.


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Emil Guillermo: Sanitized travel ban 2.0 has database provision to criminalize Muslims in America; PODCAST--Deepa Iyer says immigrant communities "already living in fear"
March 7, 2017 9:00 PM

In our podcast Emil Amok's Takeout, I list off the key points about Travel Ban 2.0.

Six out of the seven original countries are involved: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Only extensive lobbying got Iraq taken off.

There are also exceptions made for green card and visa holders, as well as those who travel for work, or young people who need medical care. (It specifies children, not older persons.)

The new executive order also suspends the refugee program for 120 days, limits the number of refugees in 2017 to 50,000, and does not single out Syrians.

All good? Not exactly.

No matter how you slice it, the travel ban is still a Muslim ban, which raises constitutional questions.

One aspect of the ban I've found rarely reported is in Section 11.

"Transparency and Data Collection" sounds benign.

But not when its intent is to provide the country with what essentially is a national scoreboard on terrorism.

It's going to be the unofficial official Muslim Report Card.

According to the executive order itself, information will be gathered on the number of foreign nationals in the U.S. charged or convicted of terrorism; or removed based on terrorism-related activity.

These aren't travelers, mind you.

They are people in our communities the government wants tracked.

"Information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and who have engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States."

There are even specific crimes the government is interested in, such as "the number and types of acts of gender-based violence against women, including so-called 'honor killings,' in the United States by foreign nationals."

And then there's the catch-all. The government wants "any other information relevant to public safety and security as determined by the Secretary of Homeland Security or the Attorney General."

Oh, that would be Jeff Sessions.

He'll have so much time on his hands since he's recused himself on any Trump Russia matters.

And all this is in something called a travel ban?

Sounds like they're gearing up for a Muslim Ban 3.0 that will last longer than 90 days (120 days for refugees).

If they have data, and everyone loves data these days, you can justify banning just about anyone in Trump's America for as long as Steve Bannon wants. Forever?

On the podcast, I talk to Deepa Iyer, South Asian American community leader and recent recipient of the AALDEF Justice in Action Award.

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She says the immigrant community is "already living in fear," and denounces the ban that fans Trump's xenophobic bent.

We also talk about the killing of an Indian American engineer in Olathe, how Trump handled it, and how it is connected to the political rhetoric of our times.

She says that because of it, the Indian community in America is "becoming woke."
 
Listen to the podcast here.  Or on the player below. 


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Emil Guillermo is an independent journalist/commentator.
Updates at www.amok.com. Follow Emil on Twitter, and like his Facebook page.
The views expressed in his blog do not necessarily represent AALDEF's views or policies.


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Emil Guillermo: Undocumented, But Undaunted--An Asian American DACA recipient experiences Trump's big speech
March 4, 2017 8:12 PM

The media, wanting so desperately to say something nice about Donald Trump, seemed to go out of their way to praise the president for his performance before a joint session of Congress last week.

Trump seemed to find the right key to being presidential. Like maybe he finally gets it?

Nyet.

The president this weekend made it clear he has no intention of raising his rhetorical game as he took the bombastic remarks of a conservative talk host as fact, and then made an outrageous charge: that President Barack Obama had wiretapped phones in Trump Tower. 

Uttering a falsehood is pretty bad. When you're president, it's worse. 

Trump's status implies there's some truth, even though there's no factual basis for any wiretapping claim. 

Obama's spokesperson unequivocally denied the claim.

But Trump's tweets live on as more of the same wrongheaded, low-minded rhetoric he launched on Friday, when Trump tweeted pictures of Democratic leaders Schumer and Pelosi with Putin and then suggested an investigation be launched on both!

We are now officially at 6th grade level with the U.S. presidency.

And you thought Hillary Clinton warning about The Donald's access to nuclear codes was bad.

When the president relies on hurling dog feces as fact, no one is safe. We are watching the degradation of the presidency before our very eyes.

The man whose every utterance is news shouldn't be playing it fast and loose with the "truth."

But it's what we get when the country elects a birther president, who likes to polarize the country and undermine democracy with fake news.


UNDOCUMENTED, BUT UNDAUNTED
Angie Kim saw Trump live at the joint congressional session last week when many people thought the president finally realized he was president. 

Kim, a community organizing fellow at the MinKwon Center for Community Action in Flushing, New York, was the guest of Congresswoman Grace Meng.

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Brought to the U.S. at age nine by her parents from South Korea, Kim qualified for President Obama's Deferred Action for Childhood Arrivals (DACA) program in 2012.

It gave her the right to get a work permit and stay in the U.S.

Now 32, her future is in jeopardy, as President Trump has had a conflicting strategy on immigrants. 

Trump's tough on what he calls the "bad dudes," but he says he has some heart for DACA recipients--even though he has yet to say anything definitive. In fact, DACA recipients have been included in roundups during the new ICE policies and have been set for deportation.

On our podcast, Kim gives an undocumented person's view of the president and his speech, from the policies to the use of manipulative props in the audience.

Kim wasn't a prop. But she told me she felt "powerful" in the chamber, and that being there allowed her to lose the fears she has over being undocumented.

She admitted she has often been afraid of deportation through the years. "My heart would also be broken if I were separated from my family as an adult," she told me.

Bu he said working on behalf of immigrants at MinKwon has helped her deal with that fear.

"I didn't need [Trump's] address to be an affirmation for me," Kim said, but admitted her "emotions were stirred up" by hearing Trump's speech.

Kim said she left Capitol Hill inspired to work even harder for her immigrant community's fight for justice.

Listen to Angie Kim, interviewed on my podcast below.


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Emil Guillermo is an independent journalist/commentator.
Updates at www.amok.com. Follow Emil on Twitter, and like his Facebook page.
The views expressed in his blog do not necessarily represent AALDEF's views or policies.



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