Saturday, October 25, 2014
Abstract: In Padilla v. Kentucky, the United States Supreme Court held that the Sixth Amendment requires criminal defense attorneys to advise non-citizen clients regarding the deportation risks associated with a guilty plea. The Court held in that case that a defendant's guilty plea may be involuntarily made when defense counsel fails to advise the client about those deportation risks. Trial judges accepting guilty pleas from criminal defendants have a duty to confirm the defendant makes the plea voluntarily and intelligently. Judges make this determination through the plea colloquy -- a series of admonishments and questions with the pleading defendant done prior to accepting the plea. Padilla at a minimum requires trial judges to inquire whether or not the defendant is a non-citizen, and if so, whether the defendant has received the correct advice regarding the guilty plea's immigration consequences. The judge's failure to do so may result in a conviction tainted by ineffective assistance or supported by a plea not voluntarily and intelligently made.
This Article suggests trial judges should take affirmative steps prior to accepting a non-citizen's plea to reveal whether counsel has provided relevant and correct immigration advice to the defendant. Part I discusses Padilla's facts, rationale and holding, Part II discusses the requirement for a voluntary and intelligently made guilty plea in modern plea bargain jurisprudence and Part III discusses the process for obtaining post-conviction relief for Sixth Amendment violations under Strickland v. Washington's ineffective assistance standard. Part IV closes by discussing best practices for trial judges and counsel to safeguard a non-citizen's rights while developing a record that anticipates post-conviction Sixth Amendment claims.
Born in Venezuela, Gregor Blanco is the center fielder and leadoff hitter for the San Francisco Giants and played in the team's Game 3 of the World Series last night. He also has played with the Atlanta Braves and Kansas City Royals. Blanco signed a minor league contract with the San Francisco Giants in November 2011, and was selected to be part of the Giants' 2012 Opening Day roster as an outfielder.
The San Francisco Giants won the third game of the National League Championship Series against the St. Louis Cardinals with a 5-4 walk-off win in 10 innings. With a runner on base, Blanco squared up to sacrifice bunt. He bunted and the pitcher threw the ball into right field allowing the runner to score.
Friday, October 24, 2014
• Today’s immigrant population
• Demographics and political power of new Americans
• Immigrants and the economy
• Federal immigration policy
• Public opinion polling on immigration
• In the news: Unaccompanied children at the U.S. southern border
One can only wonder what might cause someone to walk up to a war memorial, shoot a soldier, and then open fire in Canada's Parliament. The attacker, identified as Michael Zehaf-Bibeau, was shot and killed before he could seriously hurt anyone inside Parliament.
News reports are offering a glimpse of Zehaf-Bibeau, a convert to Islam who had a criminal record and was seeking a passport so that he could travel to Libya. He was born in 1982 in Canada. His father is from Libya, while his mother is Canadian. Zehaf-Bibeau's mother is the deputy chairwoman of the immigration division of the Immigration and Refugee Board of Canada.
While the U.S. government takes steps to protect the nation and President Obama tries to calm fears, the spread of Ebola again is in the news. CNN reports that a doctor who recently returned from Guinea has tested positive for Ebola -- the first case of the virus in New York City and the fourth diagnosed in the United States. Dr. Craig Spencer returned to the United States last week after treating Ebola patients in Guinea, where he worked for Doctors Without Borders. He completed his work in Guinea on October 12 and left the country two days later via Brussels, Belgium. He arrived at John F. Kennedy International Airport on October 17, but he exhibited no symptoms of the virus until Thursday morning. The physician, who works at Columbia Presbyterian Hospital, was checking his temperature twice a day. He has not seen any patients since his return.
Steve Nash,is a professional basketball player with the Los Angeles Lakers of the National Basketball Association (NBA). After a successful high-school basketball career in British Columbia, he earned a scholarship to Santa Clara University. In his four seasons with the Broncos, the team made three NCAA Tournament appearances, and Nash was twice named the West Coast Conference (WCC) Player of the Year.
Nash graduated from Santa Clara as the team's all-time leader in assists and was taken as the 15th pick in the 1996 NBA Draft by the Phoenix Suns. He was traded to the Dallas Mavericks in 1998. By his third season with the Mavericks, Nash was voted to his first NBA All-Star Game and had earned his first All-NBA selection. Nash led the Mavericks to the Western Conference Finals the following season. After the 2003-04 season, Nash returned as a free agent to the Phoenix Suns.
In the 2004-05 season, Nash led the Suns to the Western Conference Finals and was named the league's Most Valuable Player (MVP). He was named MVP again in the 2005-06 season. Named by ESPN in 2006 as the ninth greatest point guard of all time, Nash has led the league in assists and free-throw percentage at various points in his career. He is also ranked as one of the top players in NBA league history in three-point shooting, free-throw shooting, total assists, and assists per game.
In July 2012, the Los Angeles Lakers acquired Nash.les was the best fit for him and his family. Nash has been hobbled by injuries for the last two years. Yesterday, the Los Angeles Lakers announced that Nash will be out for the entire 2014-15 season. Nash will miss the entire season because of a back injury, putting his future in the NBA in doubt.
In 2006, Nash was named by Time as one of the 100 most influential people in the world. He also received the Order of Canada in 2007 and was awarded an Honorary Doctor of Laws by the University of Victoria in 2008. Nash is a co-owner of the Vancouver Whitecaps FC professional soccer team.
Nash was born in Johannesburg, South Africa, to a Welsh mother and an English father. He holds British as well as Canadian citizenship. Nash's family moved to Regina, Saskatchewan, when he was 18 months old, before settling in Victoria, British Columbia.
Immigration Article of the Day: State-Based Visas: A Federalist Approach to Reforming U.S. Immigration Policy by Brandon Fuller and Sean Rust
Sean Rust Photo courtesy of Temple University
State-Based Visas: A Federalist Approach to Reforming U.S. Immigration Policy by Brandon Fuller (New York University (NYU) - Urbanization Project) and Sean Rust (Temple University), April 23, 2014 Cato Institute Policy Analysis No. 748
Abstract: Michigan Governor Rick Snyder and Senator Rand Paul (R-KY) recently proposed a regional visa program that would allow immigrants to live and work exclusively in Detroit or other cities in the United States. A regional immigration option through a state-based visa program would create a temporary work permit that would allow participating states to manage the flow and regulate the quantity of temporary migrants who want to live and work within their borders. Ideally, law-abiding visa holders would be eligible for renewal and free to apply for permanent residency during their stay in the United States. Although overseen by the federal government, a state-based visa program would allow state governments to craft a better-functioning work-visa program that is more adaptable to their local economic conditions than the present system run by the federal government — perhaps even supplying lessons for future federal work-visa programs. A state-based visa program would direct immigration to the states that want it without forcing much additional immigration on those that do not. Unlike existing employment-based visas that tie foreign workers to one firm, state-based visa holders would be free to move between employers in the state — leading to thicker, more equitable, and more efficient local labor markets. A state-based visa would increase prosperity by allowing additional migration to portions of the country and economy that demand them. Successful international experiences with regional visas in Australia and Canada provide some valuable policy lessons and hint at the major economic benefits of such a policy in the United States.
Thursday, October 23, 2014
Today the CBP issued a new rule. All planes to the U.S. carrying passengers who "recently traveled to, from, or through Ebola-stricken countries" must be diverted to one of the five U.S. airports where CBP is implementing "enhanced screening procedures": JFK, Newark, Dulles, O'Hare, and Atlanta.
This is not going to help their standings in the "worst U.S. airport" rankings. 2013 clocked EWR as the fourth-worst airport in America. JFK won sixth-worst. -
On Friday November 7, the Bickel & Brewer Latino Institute for Human Rights Symposium at NYU School of Law is holding a symposium on "The Latino Child and the Law." The topics of discussion include immigration reform, access to quality education, and juvenile justice reform. There is no cost to attend and both CLE and meals are included with registration. Excellent!
Rumors continue to circulate about President Obama's possible executive action on immigration. AP reports that the White House has cautioned against speculating about what the President might do based on a new federal contract proposal from the Department of Homeland Security to buy enough supplies to make as many as 34 million immigrant work permits and residency cards. The Associated Press had reported earlier that the contract proposal suggested that the Obama administration was preparing for an increase in the number work permit applications form of unauthorized immigrants living in the country. The new contract for 5 million cards a year would provide the administration with the flexibility to issue far more work permits or green cards.
LEXIS NEXIS Legal Newsroom Immigration Law highlights a report that sheds light on the the question whether there is an “immigration crisis” on the U.S.-Mexico border. Not according to an examination of historical immigration data, according to a new paper from Rice University’s Baker Institute for Public Policy.
“Illegal” Immigration on the U.S.-Mexico Border: Is it Really a Crisis? was co-authored by William Gruben, a research associate at the Federal Reserve Bank of Dallas’ Globalization and Monetary Policy Institute, and Tony Payan, the Baker Institute’s Françoise and Edward Djerejian Fellow for Mexico Studies and director of the institute’s Mexico Center. A Rice University release reports that the paper examines historical immigration data, the “push” and “pull” factors currently motivating Mexicans and Central Americans to migrate to the United States and attempts to explain why current undocumented immigration across the U.S.-Mexico border has been perceived as a crisis.
In recent months, print and television journalists have presented the American public with a ‘crisis’ of illegal immigration on the U.S.-Mexico border,” Payan said. “Much of this recent discussion has centered on Central American children traveling alone and on allegations that they are responding to motivations created by the Obama administration’s Deferred Action for Childhood Arrival policy. The word ‘crisis,’ however, can have alternative meanings. If a ‘crisis’ of undocumented immigration means a historically large or very rapidly growing flow of undocumented immigrations, the overall national evidence shows today that there is no such crisis. Border Patrol apprehensions of undocumented immigrants attempting to cross the U.S.–Mexico border have in fact plummeted and remain far below levels a decade earlier.
According to the authors, the overall number of unauthorized immigrants apprehended by the U.S. Border Patrol in 2013 was about 64 percent below that of 2004. Overall apprehensions had increased 26.5 percent between 2011 and 2013. Apprehensions were declining consistently before then, with 2011 being the trough year, the authors said. Principal determinants of this decline likely include the almost doubling of Border Patrol personnel over 2004-2013 and the Great Recession of 2007-2009, together with its lagged effects.
The authors acknowledge that apprehensions of Central American children traveling alone have indeed surged. However, while references to a record of apprehensions of unaccompanied child immigrants are correct, publicly available data for this category only go back to 2010, the authors said. “Thus, it may be preliminary to draw definitive conclusions about record numbers of unaccompanied children based on four full-fiscal-year observations plus monthly observations into a fifth year,” they said. “Other data, including total apprehensions for any undocumented child immigrants, accompanied or otherwise, extend more than a decade. Preliminary estimates for fiscal year 2014 suggest that these apprehensions have remained below levels a decade earlier.”
There are many dynamics, economic and social, that seem to have motivated additional unauthorized travel across the U.S.–Mexico border in the last few years, the authors conclude. “Finally, there is always the immigrants’ ongoing calculation of the constantly changing probabilities of apprehension, remuneration and survival,” they said. The key with all of these variables, however, is to understand which tug in what direction and weigh them accordingly in order to understand the overall effect on migration wave — this is true for both push and pull factors. But given the statistics story we have presented, we can conclude that there is hardly an immigration crisis — something that would have been a different story around 2005.
Yesterday, I blogged about a NY Times article that reported the ways in which Long Island school districts' enrollment procedures have led to migrant children being excluded from public schools.
Today, the New York State Attorney General's Office and New York State Department announced that they will launch a review of enrollment procedures for unaccompanied minors and undocumented students. The initial focus will "include Nassau, Suffolk, Rockland, and Westchester Counties."
"NEW YORK— New York State Attorney General Eric T. Schneiderman, Board of Regents Chancellor Merryl H. Tisch, and State Education Commissioner John B. King, Jr. today announced that the State Attorney General’s Office and the State Education Department will immediately conduct a compliance review of school district enrollment policies and procedures for unaccompanied minors and other undocumented students. The review, which will examine whether students are being denied their constitutional right to an education, will initially focus on districts experiencing the largest influx of unaccompanied minors from Central and South America.
. . .
The announcement follows a series of actions already taken by the Department. On August 30, 2010, the Department issued guidance to districts on their obligations in enrolling students and making residency determinations, particularly students who are not citizens of the United States.
On September 10, 2014, the Department expanded the guidance to address the specific circumstances of unaccompanied minors who have recently entered the country in larger numbers.
On October 17, 2014, following allegations that the Hempstead School District was ignoring the law and preventing 34 Hispanic children from receiving an education, the Department launched a full investigation of enrollment policies in Hempstead. The District subsequently committed to enroll the students and to provide them with an appropriate public education. A report to the Department from the interim district superintendent of the Nassau Board of Cooperative Educational Services (BOCES) on the Hempstead policies is expected today. King said the Department will direct the Hempstead School District to take immediate action to address concerns raised in the report.
In 1982, the United States Supreme Court invalidated a Texas law that had denied state funding to schools to educate undocumented students and had authorized schools to deny enrollment to undocumented students (Plyler v. Doe, 457 U.S. 202). The Court held that the U.S. Constitution guarantees equal protection under the law for undocumented children and explained that denying undocumented students an education would "deny them the ability to live within the structure of our civic institutions, and foreclose any realistic possibility that they will contribute in even the smallest way to the progress of our Nation." ( Plyler, 457 U.S. at 223) As Plyler makes clear, the undocumented or non-citizen status of a student (or his or her parent or guardian) is irrelevant to that student's right to an elementary and secondary public education."
Click here for the full press release.
Today, the American Immigration Council releases New Americans in the Voting Booth: The Growing Electoral Power of Immigrant Communities by Walter Ewing and Guillermo Cantor.
Over the past two decades, the number of voters who are immigrants or the native-born children of immigrants (“New Americans”), as well as the larger communities to which immigrants and their children belong (primarily Latinos and Asians), have become the fastest growing segments of the electorate. An analysis of electoral data from the U.S. Census Bureau reveals that the number of New American registered voters rose by 10.6 million—an increase of 143.1 percent—between 1996 and 2012, and the number of registered voters who are Latinos or Asians and Pacific Islanders (APIs) increased by 9.8 million. New Americans, Latinos, and APIs constitute a predictably large share of registered voters in states such as California, New York, Texas, Illinois, and Florida; however, some of the fastest growth rates are found in other states.
The impact of a rising number of New American, Latino, or API voters goes far beyond the political dynamics of any particular election and constitutes a rapidly rising political force with which more and more candidates for public office will have to reckon. In the coming years, politicians who alienate these voters will find it increasingly difficult to win national and many state and local elections—especially in close races.
Harvard Magazine has a nice profile on immigration and refugee law professor Deborah Anker. When Anker joined the Law School faculty in the mid 1980s, immigration law was not on the curriculum. (I graduated from HLS in 1983 and can vouch for that.). In addition to teaching the first full immigration-law course offered at the law school, Anker in 1984 co-founded the Harvard Immigration and Refugee Clinical Program, a direct services clinic that engages students in representating asylum applicants.
NPR's All Things Considered has aired a very interesting immigration story: Residents Uneasy About Immigrant Shift Into Suburbs.
Caitlin Dickerson reports that undocumented migrants have been moving into the suburbs. And that has local residents on edge.
One American family expressed their concern over new migrants' needs for "public benefits like housing, food, health care and eduction."
Let's break that down.
Medical care is more complex. The Emergency Medical Treatment and Active Labor Act (EMTALA) is a federal law that requires all hospitals participating in the federal Medicare program to treat patients in need of emergency medical care regardless of whether they are lawfully present in the United States. (Want to know more? Read my paper Patients Without Borders.) But that doesn't mean the government necessarily picks up the bill. Hospitals become creditors, looking to the migrant first for payment.
Now, schools. Thirty-two years ago, the Supreme Court of the United States held, in Plyler v. Doe, that the constitution guarantees all children, regardless of immigration status, equal access to a basic public education. So, yes, that is a resource that even undocumented migrants are going to be using. But that doesn't mean they aren't paying for it.
Public schools receive funding from property taxes. Even if we assume that all undocumented migrants are renters, and not owners, the rents they pay help fund the property taxes paid by landlords. Schools are also funded by sales taxes. And every time an unauthorized migrant purchases goods or services, they pay sales taxes in the same amount as authorized immigrants and American citizens. Schools also received funding from income tax. And studies suggest that between 50 and 75 perecent of undocumented migrants pay those as well.
It might lift the "unease" felt if these facts were explained to the Americans interviewed by NPR.
Born in 1939 in Caracas, Venezuela, Carolina Herrera, who spent a decade as a socialite on the International Best-Dressed List, launched her own collection of women’s gowns with no formal training in 1981. Featuring deep necklines and exaggerated sleeves that retained a traditional elegance, her designs won immediate acclaim and soon were being worn by high-profile figures such as Princess Diana and Caroline Kennedy. Today, her brand includes 18 retail boutiques and is sold all around the world. She received the Geoffrey Beene Lifetime Achievement Award in 2008.
The rapid economic boom of the 1990s and early to mid-2000s sparked a surge of immigration to Spain. Many newcomers quickly found jobs in areas like construction and domestic services, and as a result, investment in large-scale, coordinated labor market integration efforts was not a priority. When the economic crisis of 2008 hit, with a disproportionate effect on those in temporary work, it revealed the underlying gaps in the policy framework meant to support the labor market inclusion of both immigrants and other vulnerable individuals in Spain.
A new report, Turning a Corner? How Spain Can Help Immigrants Find Middle-Skilled Work, examines the effectiveness of recent policies in filling these gaps to help immigrants move into more stable work. It provides an overview of the labor market and integration policy in Spain and assesses the effectiveness of these policies, focusing on employment services, language education, and vocational training.
Researcher Raúl Ramos notes that in Spain, unlike other European countries, “the largest share of the budget [for employment services] has consistently been allocated to passive policies and to employer subsidies rather than to training or guidance,” which has been detrimental to native and immigrant job seekers alike. During the boom years, workforce development programs and integration policies were decentralized and language policy was a low priority, as the majority of immigrants already spoke Spanish well or very well. The crisis highlighted the need to invest in comprehensive mainstream and targeted policies that enable workers to enter permanent, high-quality employment.
As Spain recovers from the recession, the national government has undertaken measures to promote reintegration into the labor market for disadvantaged workers (including immigrants), primarily through training. At the regional level, there has also been movement toward developing specific initiatives for new immigrants, with a focus on language courses and orientation programs. The report concludes with recommendations for further policy refinement, including improved recognition of foreign credentials and easier access to employment services and training.
This report is part of the second phase of a Migration Policy Institute-International Labour Office research project on the integration of foreign-born workers within EU labor markets, focusing on six countries: the Czech Republic, France, Germany, Spain, Sweden, and the United Kingdom. This phase focuses on the policies that have an effect on the labor market integration of new arrivals over their first decade. The first phase examined the influence of individual characteristics and broader economic conditions on the employment prospects of foreign-born workers.
This report accompanies an earlier report, which examined the labor market integration of different immigrant groups in Spain based on origin, education level, and year of arrival. The study concluded that immigrants who arrived in Spain before the 2008 recession had little trouble finding work immediately, but those who came after 2008 struggled to find work as unemployment rates skyrocketed.
Immigration Article of the Day: Teaching Immigration Law: Integrating Skills and Collaborating Across Law Schools by Jennifer Lee Koh and Anna R Welch
Teaching Immigration Law: Integrating Skills and Collaborating Across Law Schools by Jennifer Lee Koh (Western State University - College of Law) and Anna R Welch (University of Maine - School of Law) October 2, 2014
Abstract: This Essay discusses the design and implementation of survey Immigration Law courses taught at two different law schools, Western State College of Law in Fullerton, California and the University of Maine Law School in Portland, Maine. Although the courses took place on opposite coasts and did not engage in a formal partnership that was visible to students, we deliberately planned the courses in close collaboration with one another behind the scenes. In doing so, we shared the explicit goal of increasing the role of practical lawyering skills in the courses while reinforcing students’ understanding of the substantive immigration laws. This Essay asserts that survey immigration law courses can serve as testing grounds to demonstrate how doctrinal courses across the law school curriculum can both deepen students’ understanding of substantive law while also exposing them to the realities of legal practice. Part II of the Essay discusses the pressures facing the legal academy today with respect to training law students for the practice of law. Part II also describes how immigration law courses are well-positioned to illustrate how professors might emphasize doctrine alongside skills, even when those courses are not explicitly simulation-based or clinical in nature. In Part III, we share the process by which we planned our courses, the types of exercises that we incorporated into our classes as well as the nature of the cross-country collaboration that took place between us as instructors and, to a lesser extent, between our students. The Essay concludes with a reflection on some of the limitations of our courses and areas for future development.
Wednesday, October 22, 2014
Joe Palazzolo of the Wall Street Journal reports that the U.S. Court of Appeals for the District of Columbia Circuit ruled Tuesday that foreign chefs with specialized knowledge acquired through cultural traditions, upbringing, or life experience may qualify for visas (L-1B visas to qualifying multinational businesses, which permit an employer to temporarily transfer foreign employees possessing “specialized knowledge” into the United States) to work in the United States.
The ruling was a victory for upscale Brazilian steakhouse Fogo de Chao, an international chain who bring their chefs from southern Brazil, where they are trained in the “gaucho way” of roasting meats over pits of open fire for barbecues.
Judge Millett wrote the opinion for the Court, with Judge Kavanaugh, who would have deferred to the agency on the visa question, dissenting.