Thursday, November 27, 2014
Unaccompanied children are represented by an attorney in only about one-third (32%) of 63,721 cases pending in Immigration Court as of October 31, 2014, according to the latest data from TRAC. Some 43,030 juveniles have not as yet been able to hire an attorney to assist them or to find pro bono representation. For the 21,588 children's cases filed and already decided since the surge of unaccompanied minors from Central America began three years ago, only 41 percent had representation.
Outcomes for unaccompanied children whose cases were filed and decided during the past three years were examined. The preiod from FY 2012 through FY 2014 was selected since it covers the recent surge in cases involving unaccompanied minors from Central America that began in FY 2012. With the updated data current through the end of October 2014, court records show that over twenty thousand of these cases have already been decided. Here are the results for children arriving during this latest surge:
Outcome if attorney present. In almost three out of four (73%) of the cases in which the child was represented, the court allowed the child to remain in the United States. The child was ordered removed in slightly more than one in ten (12%) of these cases. And in the remaining 15 percent the judge entered a "voluntary departure" (VD) order. (While with a VD order the child is required to leave the country, the child avoids many of the more severe legal consequences of a removal order.)
Outcome if no attorney. Where the child appeared alone without representation, only 15 percent were allowed to remain in the country. All the rest were ordered deported — 80 percent through the entry of a removal order, and 5 percent with a VD order.
Immigration Article of the Day: The Protection of Irregular Immigrants’ Rights in the Jurisprudence of the Inter-American Court of Human Rights: Developments and Challenges by Ana Beduschi,
Abstract: This article discusses the contribution of the Inter-American Court of Human Rights to the development of a human rights-based approach to international immigration law. In the late 1990s the Inter-American Court of Human Rights witnessed a period of extraordinary judicial activism. It pushed the boundaries of human rights to the realm of international immigration, including the protection of rights of irregular immigrants. Accordingly, this article argues that the Inter-American Court has the potential to promote an extended form of protection of irregular immigrants’ rights in Latin America. It also suggests that principles developed by the Inter-American jurisprudence have the potential to effect changes in the European sphere. It is, however, submitted that the Inter-American system still has many challenges to overcome, notably concerning compliance with judicial decisions and effectiveness of the protection of rights. These challenges, which are not purely legal or institutional, are strongly dependent on the cultural, political and societal Latin American context. They may therefore cast some shadow on the development of a stronger humanized approach to international immigration.
President Obama's immigration initiatives have been somethinbg of a full employment act for immigration law professors. ImmigrationProf has posted many op/eds. articles, and other commentary on teh President's actions. In addition, catching the attention of the national news, a letter signed my 135 immigration law professors states:
"We write as scholars and teachers of immigration law who have reviewed the executive actions announced by the President on November 20, 2014 . It is our considered view that the expansion of the Deferred Action for Childhood Arrivals (DACA) and establishment of the Deferred Action for Parental Accountability (DAPA) programs are within the legal authority of the executive branch of the government of the United States. To explain, we cite federal statutes, regulations, and historical precedents. We do not express any views on the policy aspects of these two executive actions."
In a Balkinization symposium on "Administrative Reform of Immigration Law," many immigration professors (imcluding Adam Cox, Cristina Rodriguez, David Martin. Alina Das, and Steve Legomsky) and other law professors weigh in on the Obama immigration initiatives (with particular focus on the Office of Legal Counsel's memorandum on the lawfulness of the President's immigration initiatives (and finding that extension of deferred action to the parents of Deferred Action to Childhood Arrival reciients might not be lawful).
If you're looking for a special book to enjoy with your little readers this holiday, look no further than The Thanksgiving Door by Debby Atwell.
This picture book begins with an older couple (Anna and Ed) alone on Thanksgiving. They accidentially burn their holiday meal and so end up looking for a place to eat out.
They find a restaurant with an open door but noone there. It turns out the family of restauranteurs - apparently new immigrants - are in the kitchen, hiding. They had planned to be closed that day so they could have their own party. But the grandmother of the family insists the couple should be allowed to stay.
"And that's how Ann and Ed found themselves guests of honor as this family celebrated their first Thanksgiving in the New World Cafe."
What comes next is a Thanksgiving celebration that blends American traditions with "old country" touches. There is food and dancing. And lifelong friendships are made. Leaving Anna and Ed thankful for their burned dinner!
Wednesday, November 26, 2014
The New York Times has an interview with Professor Joseph Carens of the University of Toronto: When Immigrants Lose Their Human Rights.
Carens is the author of The Ethics of Immigration and Immigrants and the Right to Stay, among numerous other publications. (I'm going to geek out here and just say that Carens' work has been incredibly influential on my own.)
In the New York Times interview, Carens discusses the president's recent immigration action.
He emphasizes that the beneficiaries of DACA and DAPA have "moral claims to legal status as residents and, eventually, to citizenship itself." For, "[l]iving and working in a society makes immigrants members of that society over time, even if they arrived and settled without permission."
Tuesday, November 25, 2014
International Migration Outlook 2014 Publication Date : 01 Dec 2014
This flagship publication on migration analyses recent developments in migration movements and policies in OECD countries and selected non-OECD countries. This edition also contains two special chapters on "The labour market integration of immigrants and their children: developing, activating and using skills" and "Managing labour migration: Smart policies to support economic growth". It also includes Country notes and a Statistical Annex. This special edition is launched at the occasion of the High-level Policy Forum on Migration (Paris, 1-2 December 2014).
As fleshed out in some detail by the Department of Homeland Security, President Obama's recently announced immigration plan has quite a few components. One item on the list of immigration initiatives is "Revise Removal Priorities":
"DHS will implement a new department-wide enforcement and removal policy that places top priority on national security threats, convicted felons, gang members, and illegal entrants apprehended at the border; the second-tier priority on those convicted of significant or multiple misdemeanors and those who are not apprehended at the border, but who entered or reentered this country unlawfully after January 1, 2014; and the third priority on those who are non-criminals but who have failed to abide by a final order of removal issued on or after January 1, 2014. Under this revised policy, those who entered illegally prior to January 1, 2014, who never disobeyed a prior order of removal, and were never convicted of a serious offense, will not be priorities for removal. This policy also provides clear guidance on the exercise of prosecutorial discretion."
The Department of Homeland Security ( DHS) and its immigration components - CBP, ICE, and USCIS - are responsible for enforcing the nation's immigration laws. Due to limited resources, DHS and its Components cannot respond to all immigration violations or remove all persons illegally in the United States. As is true of virtually every other law enforcement agency, DHS must exercise prosecutorial discretion in the enforcement of the law. And, in the exercise of that discretion, DHS can and should develop smart enforcement priorities, and ensure that use of its limited resources is devoted to the pursuit of those priorities. DHS's enforcement priorities are, have been, and will continue to be national security, border security, and public safety. DHS personnel are directed to prioritize the use of enforcement personnel, detention space, and removal assets accordingly.
In the immigration context, prosecutorial discretion should apply not only to the decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad range of other discretionary enforcement decisions, including deciding: whom to stop, question, and arrest; whom to detain or release; whether to s ettle, dismiss, appeal, or join in a motion on a case; and whether to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case. While DHS may exercise prosecutorial discretion at any stage of an enforcement proceeding, it is generally preferable to exercise such discretion as early in the case or proceeding as possible in order to preserve government resources that would otherwise be expended in pursuing enforcement and removal of higher priority cases. Thus, DHS personnel are expected to exercise discret ion and pursue these priorities at all stages of the enforcement process - from the earliest investigative stage to enforcing final orders of removal- subject to their chains of command and to th e particular responsibilities and authorities applicable to their specific position."
The 2011 John Morton memo on prosecutorial discretion is rescinded and superseded. The immigration enforcement priorities are now stated as:
Priority 1 (threats to national security, border security, and public safety)
Priority 2 (misdemeanants and new immigration violators)
Priority 3 (other immigration violations)
The memorandum discusses "Execising Prosecutorial Discretion" and states that such discretion "requires DHS personnel to exercise discretion based on individual circumstances. . . . In making such judgments, DHS personnel should consider factors such as: extenuating circumstances involving the offense of conviction; extended length of time since the offense of conviction; length of time in the United States; military service; family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal proceedings; or compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriusly ill relative. These factors are not intended to be dispositive nor is this list intended to be exhaustive. Decisions should be based on the totality of the circumstances."
The enforcement guidelines focus on public safety and are more focused than the types of removals seen under the Secure Communities program, which is now abolished. This might result in removals of more serious criminal offenders than currently is the practice. The guidelines also make it clear that in exercising prosecutorial discretion, the individual circumstances of the immigrant should be considered.
I had the opportunity to discuss the President's immigration initiatives on Capital Public Radio yesterday morning. Although the press reports strongly suggest that the President Obama's initiatives may border on the unconstitutional (which apparently is more newsworthy than characterizing the actions as in the mainstream), it seems to me that the rather modest steps taken by the President with respect to deferred (i.e., temporary) action, ending Secure Communities, focusing scarce enforecment resources on "felons, not families," etc., are well within the power of the Executive Branch and similar to immigration actions taken by previous Presidents. As a recent letter from a group of law professors suggests and another letter from 135 immigration law professors opines (as well as previous letters), the vast majority of law professors seem to agree.
Apparently seeking to stir the pot as he did in questioning birthright citizenship in a 1985 book, Yale's Peter Schuck has made the jarring claim in the New York Times that President Obama might be subject to impeachment for committing high crimes and misdemeanors in the immigration initiatives. That extreme position, which one would expect more from a political partisan than a law professor, unfortunately plays into the efforts to provoke controversy and polarize the public.
There is room for reasoned debate about whether the President's initiatives make sense as a matter of policy and politics. However, the drumbeat that executive actions of dubious legality have been taken, calls for impeachment and government shut downs, and the like are unlikely to lead to productive debate about the proper policies to pursue with respect to immigration. Until the nation can have that discussion, it is hard to see how Congress will be passing any kind of comprhensive immigration enforcement measure.
From the Bookshelves: Rethinking the Attractiveness of EU Labour Immigration Policies: Comparative perspectives on the EU, the US, Canada and beyond by Sergio Carrera, Elspeth Guild, Katharina Eisele
Rethinking the Attractiveness of EU Labour Immigration Policies: Comparative perspectives on the EU, the US, Canada and beyond by Sergio Carrera, Elspeth Guild, Katharina Eisele
Is Europe's immigration policy attractive? One of the priorities driving current EU debates on labour immigration policies is the perceived need to boost Europe's attractiveness vis-á-vis 'talented' and 'highly skilled' immigrants. The EU sees itself playing a role in persuading immigrants to choose Europe over other competing destinations, such as the US or Canada.
This book critically examines the determinants and challenges characterising discussions focused on the attractiveness of labour migration policies in the EU as well as other international settings. It calls for re-thinking some of the most commonly held premises and assumptions underlying the narratives of ‘attractiveness’ and ‘global competition for talent’ in migration policy debates. How can an immigration policy, in fact, be made to be ‘attractive’ and what are the incentives at play (if any)?
A multidisciplinary team of leading scholars and experts in migration studies address the main issues and challenges related to the role played by rights and discrimination, qualifications and skills, and matching demand and supply in needs-based migration policies. The experiences in other jurisdictions such as South America, Canada and the United States are also covered: Are these countries indeed so ‘attractive’ and ‘competitive’, and if so what makes them more attractive than the EU?
On the basis of the discussions and findings presented across the various contributions, the book identifies a number of priorities for policy formulation and design in the next generation of EU labour migration policies. In particular, it highlights important initiatives that the new European Commission should focus on in the years to come.
Sergio Carrera is Senior Research Fellow and head of the Justice and Home Affairs research unit at CEPS; Elspeth Guild is Jean Monnet Professor ad personam of European Migration Law at the Radboud University Nijmegen, the Netherlands, and Queen Mary, University of London, UK. She is also an Associate Senior Research Fellow at CEPS and a partner at the London law firm Kingsley Napley. Katharina Eisele is a Researcher in the Justice and Home Affairs section of CEPS.
Monday, November 24, 2014
My very first day in immigration court as a young lawyer, an Indian man in full shackles fell to his knees and begged me to help him. I reviewed his paperwork with an analytical eye and hoped that law school had prepared me to advise him. He had a rare legal remedy available to him, and I explained to him what he needed to tell the judge (he was defending himself in pro se). The next five men I interviewed were not so fortunate and none had any defense to deportation. Chained together, they each spoke in turn to the judge—only one was not deported. I discovered the power of knowledge and that law could be arbitrary in who it assisted and who it condemned.
When Obama’s new executive order was released, one of my friends told me that when he discovered he was covered under the order, he felt as though he had beat stage four cancer. He was too old for the first round of DACA, and had felt the sting of disappointment after the first executive order. Yet now he was finally free. It was the little things like the dignity of being able to drive a woman on a date—to the larger issue of having a legal identity that made him feel an incredible release.
My mind spun in a different direction, and I began thinking of everyone who could have benefited, but who had already been deported. I thought of the wreckage of so many lives that could have been avoided. One of my clients—who had come to the USA as a toddler—told me that after he was deported, he felt like a stateless ghost untethered to his native land of Jamaica. He pined for his children every day across the Caribbean ocean. Like an uncelebrated Odysseus, he crossed the seas multiple times to reunite with his family. He never succeeded—arrested and deported again and again. He told me he would keep trying to reenter the USA until he died. In the USA were his life, his children, and everything that made life worth living.
Just as the executive order is progress, it is also a reminder of our nation’s past. A tribute to the sacrifices immigrants in our nation made to reach this breaking point. The resistance and the swelling of discontent—all brought to its boiling point. It is a time of celebration and mourning. But also a time of hope—hope that the irrepressible voices of immigrants are finally being heard. And above all Obama’s order is a dare—a dare to Congress to retract rather than advance the rights and dignity of immigrants.
Immigration Law Clinic
University of Miami School of Law 1311 Miller Drive Coral Gables, FL 33146
Time: Thursday: 11 a.m. - 6 p.m. and dinner | Friday: 9 a.m. - 4:30 p.m.
Registration: Coming soon!
This biennial conference aims to create a space for junior law teachers to share drafts of writing projects, discuss teaching techniques, and get to know one another.
The conference will consist of panel discussions on teaching immigration law (doctrinal and clinical), professional development, scholarship, recent developments in immigration law and policy, and WIP/incubator sessions. It will be open to emerging immigration law teachers (tenure-track and non-tenure track) who have been teaching immigration law for eight years or fewer.
Professor Stephen Legomsky: The President Is Right on Immigration: Obama’s legal authority is clear, as it was for Reagan, Clinton and both Bushes
In this Wall Street Journal op/ed, legendary immigration law professor Steve Legomsky defends President Obama's limited -- and temporary -- immigration relief for long-term undocumented immigrants. To see the full article at the Journal website, one must login. But anyone can see Steve's op/ed by googling “wsj Legomsky” and clicking on “The President is Right on Immigration”.
I very much agree with Steve and believe that the constitutional and lawful authority for the President's immigration initatives are pretty clear-cut.
The Unaccompanied Immigrant Children Assistance Project is a new initiative in which USF law students provide legal assistance to unaccompanied minors as they navigate the U.S. immigration system. The project is a component of ImmigrationProf blogger Professor Bill Hing’s Deportation and Rebellious Lawyering class.
Born in Vietnam, David Tran named his company, Huy Fong Foods, after the boat by which he immigrated to America. Seeking to create a kind of Heinz ketchup for the Vietnamese-American community, he bottled and sold his own unique take on Thai sriracha sauce, blending fresh red jalepeños, garlic, sugar, salt, and vinegar. Without the help of any advertising, his product has since exploded in popularity far beyond its original audience. It is now a global product sold in major supermarkets, heralded by celebrity chefs, and trumpeted by zealous fans across the Internet.
For a while. Huy Fong Foods was embroiled in a controversy (and a lawsuit) in Southern California due to objections from some quarters over the smells generated by the manufacturing of the company's signature hot sauce.
As fleshed out in some detail by the Department of Homeland Security, President Obama's recently announced immigration plan has quite a few components. One item on the list of immigration initiatives is "Personnel Reform for ICE Officers":
"Related to these enforcement and removal reforms, we will support job series realignment and premium ability pay coverage for ICE ERO officers engaged in removal operations. These measures are essential to bringing ICE agents and officers pay in line with other law enforcement personnel."
"In recent years , Immigration and Customs Enforcement's (ICE) priority missions have increasingly focused on national security and public safety. In furtherance of that, the Office of Enforcement and Removal Operations ' (ERO) enforcement strategy and initiatives have shifted heavily towards the investigation, identification, location, arrest, prosecution, and removal of criminal and other aliens who present a danger to national security or threaten public safety. This targeted approach has in fact resulted in record breaking numbers of criminal removals. ICE ERO has accomplished this under a personnel structure that lags behind that of other federal law enforcement agencies and components , including other ICE components. This discrepancy hurts morale and presents other management challenges. I know you share my commitment to address this.
Today we announced new enforcement priorities for the Department of Homeland Security (DHS) that will further ICE ERO's focus on DHS's national security and public safety missions. I have concluded that these policy changes should be accompanied by a recalibration of ICE ERO's workforce and personnel pay structure."
The memorandum lists the following steps to be taken ion the ICE personnel reform:
1. Job Series Realignment for ICE ERO Officers
2. Premium Ability Pay Coverage for ICE ERO Officers
3. "Next Steps: "DHS Secretary Johnson] will thus recommend that the Administration pursue and prioritize regulations and legislation necessary to address job series realignment and premium pay structure that synchronizes our personnel structure and compensation with the critical mission the component executes on behalf of the public."
The steps outlined by the seem to be rather modest reform to the job classifications and pay practices for ICE officers involved in detention and removal operations. The changes can be expected to be important to the recruitment, retention, and morale of ICE officers.
The personnel reforms, however, do not address serious concerns about the adequacy of the training of the Border Patrol officers, which allegedly has lagged in a time of greatly increasing numbers of officers. Several reports, including by the DHS's own Office of the Inspector General, have questioned the training and called for improvements.
Immigration Article of the Day: Domestic Violence and the Plight of the Unauthorized Migrant by Mimi Tsankov
Domestic Violence and the Plight of the Unauthorized Migrant by Mimi Tsankov, University of Colorado Boulder; University of Denver, Sturm College of Law October 1, 2014 Federal Bar Association's The Federal Lawyer Journal (Oct/Nov 2014)
Abstract: Understanding the maze of legal rights involved in migrant domestic violence matters can be daunting. The cases can involve diverse areas of law and multiple jurisdictions. This article describes the various types of U.S. immigration-related relief available to migrant domestic violence victims.
A TIME FOR HONEST TRUTH: A PASSIONATE DEFENSE OF PRESIDENT OBAMA’S EXECUTIVE ORDERS ON IMMIGRATION by Gary Endelman and Cyrus D. Mehta
Sunday, November 23, 2014