Friday, February 12, 2016

Complete List to Contributions to SCOTUSBlog On-Line Symposium on United States v. Texas

Here is a complete list to the SCOTUSBlog On-Line Symposium on United States v. Texas.  I must admit that I found the title to John Eastman's contribution to be WAY over the top.

Date Author Post Title
 
02.11.16 Symposium: Barack Obama is not king
02.11.16 Symposium: United States v. Texas – The road to perpetual immigration gridlock?
02.10.16 Symposium: Back to immigration basics – Why the DAPA/DACA case is simpler than it seems
02.10.16 Symposium: The government’s violation of the APA’s notice-and-comment requirements provides a simple solution to a thorny case
02.09.16 Symposium: Why it’s time to unfreeze DAPA
02.09.16 Symposium: Why United States v. Texas is the most important case the Court will decide this year
02.08.16 Symposium: Unable to show harm, can Texas employ the Court as a political referee?
02.08.16 Symposium: Constitutional limits of presidential power – changing the law or enforcing it
02.05.16 The immigration case, made simple

 

February 12, 2016 in Current Affairs | Permalink | Comments (0)

Average Wait Time in Immigration Court Rises -- Again

 
TRAC reports that, as of the end of January 2016, open cases in U.S. Immigration Court have been waiting for an average of 667 days, a new high. This is 3.7 percent longer than the 643 days average wait time at the end of FY 2015 (September 2015) and is 17.6 percent higher than it was at the end of FY 2014. Because this measure is for open cases, more processing time will generally be needed before a case is closed.

The longest times were seen in Colorado, where cases have waiting for an average of 933 days. The next longest wait was in Illinois (876 days), followed by Nebraska (862 days), Michigan (847 days) and Ohio (822 days).

For a snapshot of average times pending cases have been waiting in Immigration Court filings as of January 2016, click here.

For full details by state, nationality, Immigration Court, hearing location and type of charge, click here.

Many of TRAC's other free query tools -- which track new DHS filings, the handling of juvenile cases and much more -- have also been updated through January 2016. For an index to the full list of TRAC's immigration tools, click here.

KJ

 

February 12, 2016 in Current Affairs | Permalink | Comments (0)

Sanders, Clinton Agree on Need for Immigration Reform (and a Path to Legalization), End the Raids

Naturalization Ceremonies to Celebrate Presidents Day

Presidents_day

Photo courtesy of Calendar Date.com

U.S. Citizenship and Immigration Services will honor the birth of our nation’s first president, George Washington, and all presidents who have led this country by welcoming nearly 20,000 new U.S. citizens during more than 180 naturalization ceremonies across the country between February 12–22.

This Presidents Day, USCIS is sharing the stories of naturalized U.S. citizens whose children became president. Read about some of them on the blog, The Beacon.

Presidents Day activities this year will feature a naturalization ceremony at George Washington’s Mount Vernon in Mount Vernon, Virginia, on February 22. Director Rodríguez will administer the Oath of Allegiance to 50 people and deliver keynote remarks.

Other ceremonies during the week will be held at:

Read a complete list of 2016 Presidents Day themed naturalization ceremonies and learn about the 10 steps to naturalization.

KJ

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February 12, 2016 in Current Affairs | Permalink | Comments (0)

Thursday, February 11, 2016

Throwback Thursday: Kevin R. Johnson


Same enigmatic smile, slightly greyer hair

Today's Throwback Thursday focuses on Kevin R. Johnson, Dean of the U.C. Davis School of Law and absurdly prolific writer of books (yes, plural), articles, book chapters, and blog posts (appearing on this blog steadily since September 2005 and on another locale in the interwebs you might have heard of, Scotusblog).

I might be tempted to write about Kevin's 2007 book Opening The Floodgates, which sits on my desk thumbed, tabbed, and highlighted, as I continue to wrestle with the ideas he presents.

But immprof Carrie Rosenbaum has instead nominated Kevin's paper Race, the Immigration Laws, and Domestic Race Relations: A 'Magic Mirror', 73 Indiana Law Journal 1111 (1998), for Throwback Thursday.

In the article, Kevin shows how "the differential treatment of citizens and noncitizens serves as a 'magic mirror' revealing how dominant society might treat domestic minorities if legal constraints were abrogated. Indeed, the harsh treatment of noncitizens of color reveals terrifying lessons about how society views citizens of color."

The article has a historical track, tracing the history of racial exclusion in U.S. immigration laws from Chinese exclusion through Prop 187. He finds that the racial exclusion of noncitizens "reveals to domestic minorities how they are viewed by society," stigmatizes them, and reinforces their subordination. He draws on psychology to explain why this "historical dynamic" of prejudice "cannot be marginalized as simply an 'immigration' issue."

He concludes:

For better or worse, the history of national origin and racial exclusion in U.S. immigration laws serves as a lens into this nation's soul. By considering the nationalities and racial minorities that a society seeks to exclude from the national community, we better understand how that society views citizens who share common characteristics with the excluded group.

In Carrie's words, the article is "timeless." It is. Consider just this one post-1998 example.

Muslim immigration has been, directly or indirectly, restricted since 9/11. And more than a decade later we still have current presidential candidates calling for a complete ban on Muslim immigration. So what does this "magic mirror" tell us about the treatment of the Muslim minority in America? Trump, of course, needs no mirror. He's front and center ready to call for surveillance and tracking of all Muslims in the United States regardless of their immigration status. But President Obama has only recently addressed the dynamic of prejudice. This month, for the first time and within spitting distance of leaving office, President Obama visited a U.S. mosque. And he addressed the effects of "inexcusable political rhetoric against Muslim-Americans."

The only open question seems to be which new group will be the subject of future exclusionary policies, and which corresponding domestic minorities will feel the subordination effects of that exclusion.

-KitJ

February 11, 2016 in Law Review Articles & Essays | Permalink | Comments (0)

United States v. Texas – The road to perpetual immigration gridlock?

Here is my contribution to SCOTUSBlog on-line symposium on United States v. Texas.  Here is my bottom line:

"United States v. Texas raises critically important legal issues concerning the discretion of the executive branch in the enforcement of U.S. immigration laws. Moreover, if allowed to stand, the Fifth Circuit’s finding that Texas has standing to derail discretionary federal immigration enforcement decisions could open the door to the use of litigation in the federal courts for partisan political ends in many controversial areas of law enforcement. As the Court explained three Terms ago in Hollingsworth v. Perry, the use of litigation as a political tool, as Texas and other states are doing, is precisely the kind of suit that Article III standing doctrine seeks to prevent."

KJ

February 11, 2016 in Current Affairs | Permalink | Comments (0)

Senate Committee Investigates Department of Health and Human Services Placement and Care of Unaccompanied Minors by Sadie Weller, Law Student

In an effort to protect the vulnerable population of unaccompanied children coming into the United States, the U.S. Department of Health and Human Services has in place a variety of policies and procedures for their placement and care. In 2002, the care and custody of unaccompanied children (UACs) was transferred from the Immigration and Nationalization Service to the Office of Refugee Resettlement (ORR), under the supervision of the Secretary of Health and Human Services, by the Homeland Security Act. The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 put in place additional safeguards to protect UACs from the dangers of human smuggling and trafficking. However, in 2014, it was discovered that multiple unaccompanied children in the custody of Health and Human Services had been placed in the hands of human traffickers. Following this discovery, a U.S. Senate Subcommittee within the Committee on Homeland Security and Governmental Affairs launched an investigation into HHS’s placement system. The Subcommittee found that this failure was the result of systemic flaws in the policies and procedures of HHS.

The placement process of a UAC begins when the child is apprehended by the Department of Homeland Security (DHS) and transferred to the custody of HHS. Because UACs are not normally held in detention pending their immigration proceedings, ORR tries to place them with someone who can care for them and ensure their appearance at immigration court. The first step is to interview each child regarding his or her personal background, family situation, and journey to, and apprehension in, the United States. This helps identify the proper placement for a UAC and helps identify factors that may provide temporary or permanent relief from removal, such as being the victim of trafficking or substantial abuse. The next step involves identifying, through the child and/or his or her family, potential “sponsors” for the child. This process is handled by a contracted care provider (such as the Lutheran Immigration and Refugee Service) under the supervision of HHS. The care provider interviews potential sponsors and requests a Family Reunification Application with proof of identity and relationship to the UAC from a sponsor who wishes to care for the child. Next comes a background check of the potential sponsor. These background checks vary in depth, but at the very least involve a public records check. Potential sponsors who are not parents or legal guardians also undergo an immigration status and FBI fingerprint check. The care provider then must determine whether a home study of the sponsor is necessary. The TVPRA mandates home studies in four categorical situations (generally involving especially vulnerable children) and HHS policy requires home studies in some additional situations. The care provider then, if appropriate, submits a release recommendation to the case coordinator. If the case coordinator, after conducting an independent review, recommends release to the HHS field specialist, the field specialist may either approve the release (outright or conditionally), remand to the care provider for further consideration, deny release, or order a home study of the prospective sponsor. If release is approved, the sponsor enters into a Sponsorship Agreement, promising, among other things, to ensure the UACs appearance at immigration proceedings. Once the sponsor has been placed, HHS provides post-release services (some mandatory, some discretionary), unless the sponsor exercises his or right to refuse these services for the UAC.

A failure of the system came to light in 2014 when it was discovered that traffickers running an egg farm in Marion, Ohio, had obtained custody of UACs through HHS’s placement process. The traffickers had smuggled in a multitude of minors, promising them access to education upon arrival. These traffickers had obtained deeds to the real property of the UACs’ families living in the United States. The understanding was that once the child was placed with the sponsor, the child could work off the family’s debt incurred by the child’s journey to the United States. The traffickers falsely complied with every step of the HHS placement process. For “Category 3” sponsors, meaning distant or non-related individuals, the UAC or his or her family must verify some sort of relationship or connection between the sponsor and the UAC. In these cases, the traffickers used the families’ property deeds as collateral to influence them to cooperate with the assessment. So, although the sponsor and the UAC had no relationship, the parents verified the sponsors’ stories to HHS and submitted the required Letter of Designation to HHS as their form of approval of the sponsor. Once placed, the UACs were forced to work in hard, manual labor and lived in substandard living conditions, and were withheld payment for their work and threatened with physical harm and death.

Following this disturbing and tragic discovery, a U.S. Senate Subcommittee of Investigations within the Department of Homeland Security and Governmental Affairs, headed by Senators Robert Portman and Claire McCaskill, promptly launched in investigation into the policies of HHS’s placement system. They found inadequacies within HHS policies themselves, as well as systemic under-compliance with the policies in place.

The Subcommittee found that HHS’s practice of accepting explanations of alleged relationships between the UAC and a “Category 3” sponsor was not sufficiently safeguarded. Category 3 sponsors are not required to provide official documentation of a relationship (birth certificates, marriage licenses, etc.), only an explanation from the child or his or her family that a relationship exists. In some cases, no such explanation was found in the child’s file, and in at least one case, there was no indication that HHS attempted to contact the UAC’s out-of-country family to verify the prospective sponsor’s identity and relationship to the child. These incomplete or inadequately verified explanations led, in many cases, to unsafe placements.

Additionally, the Subcommittee found that the database used to determine whether the applicant sponsor had previously sponsored other UACs is unreliable and not sufficiently comprehensive. The concern here is that sponsors seeking multiple UACs may be engaged in human trafficking. However, the database (called the “UAC Portal”) only goes back to 2014 and will not yield results unless the name or address of the potential sponsor is entered exactly as it was initially. In terms of background checks, the Subcommittee found that the current practice for “backup sponsors” and household adults not listed on the Family Reunification Application is insufficient for safeguarding against trafficking of UACs. Currently, backup sponsors are required to undergo background checks, and other adult household members are required to undergo public records checks and sex offender registry checks. However, HHS does not search for these persons in the UAC Portal. Without this additional safeguard, the risk remains that someone in the household other than the primary applicant is engaged in human trafficking or forced labor practices.

The Subcommittee also found that the policies regarding home studies does not adequately protect children from unsafe placements. In 2014, HHS performed home studies in only 2.5% of placement cases. The HHS policy of home studies for non-related sponsors seeking custody of children under 12 years or under, the Subcommittee found, misses the age group of 13 and older, which is arguably the group at highest risk of being used for forced labor. HHS acknowledged the conflict between delay, use of resources, and invasiveness of home studies and the inadequacy of purely telephonic or electronic assessment of a potential sponsor. Still, a recent HHS policy change has eliminated the use of discretionary home studies, which puts more children at risk of being placed with sponsors who cannot adequately care for them.

The Subcommittee was also concerned about the provision, or lack thereof, of post-release services. For example, HHS policy allows sponsors to refuse post-release services offered to a UAC. Despite being bound by the Flores settlement agreement, which allows HHS (vis-à-vis authority granted to INS) to terminate custody arrangements and re-assume legal custody of a minor whose sponsor fails to comply with the agreement to accept post-release services, HHS essentially relinquishes the responsibility for the care and custody of the child once that child is placed with a sponsor. The study found that post-release services are only offered in 10% of cases each year. However, the Subcommittee found that all of the six major post-release service providers they spoke with support expansion of post–release services, at least to all Category 3 cases. The Subcommittee believes this policy of allowing refusal of services played a role in the Marion cases discussed above; post-release interviews may have helped detect signs of trafficking in those and other cases.

Although sponsors are bound to ensure UACs’ appearance at immigration proceedings, the Subcommittee found that sponsors often fail to follow through on this promise. The concern here is that failure to attend hearings contributes to removal penalties of children; in absentia removal orders account for 87.7% of all removal orders against UACs, and UACs that appear in court are far more likely to obtain some kind of removal relief.

In conclusion, the Subcommittee noted that there is a general lack of transparency and understanding of HHS policies, and of which governmental agency is responsible for the care of UACs after they are released to sponsors. ORR has not codified their policies, so they have not benefitted from the public accountability of notice-and-comment rulemaking. Currently, ORR maintains a “policy guide” on their website, which is constantly being updated or revised without any record of previous versions. All in all, there is an absence of a “regularized, transparent body of policies and procedures” regarding the placement of vulnerable unaccompanied children.

The Subcommittee held a Committee Hearing on January 28, 2016, in which Senators Portman and McCaskill reported their findings. In addition, officers and directors within HHS, ORR, and Children’s Services provided testimony in response. Mark Greenberg, Acting Assistant Secretary of the Administration for Children and Families within HHS, and Robert Carey, Director of ORR, gave testimony regarding the influx of UACs from Central America in recent years and ORR’s policies and procedures for sponsor assessment and placement of UACs. They also addressed recent and ongoing policy enhancements in an effort to combat situations like the Marion cases. At this time, it does not appear that the Subcommittee has released any official recommendations for policy or procedural change within ORR or HHS more broadly.

The report of the Subcommittee’s findings, as well as a video recording and the transcripts of the testimonies given at the hearing, can be found here.

Sadie Weller is a law student at the University of California, Davis School of Law.

KJ

February 11, 2016 in Current Affairs | Permalink | Comments (0)

Wednesday, February 10, 2016

Investigative Reporting Project on Privately-Run, Immigrant-Only Federal Prisons

Two weeks ago, after a year of reporting, Seth Freed Wessler published an investigation, the cover story of The Nation magazine, about medical neglect in the Bureau of Prison's privately-run, immigrant-only federal prisons. This week, the national public radio show Reveal aired his reporting. Based on 9,000 pages of records he obtained through FOIA lawsuit, Seth tells the stories of men who died from medical neglect in a system of private federal prisons used only to hold non-citizens. Many of these people are locked up just for crossing the border--for illegal entry and illegal reentry.  
 
The 11 Criminal Alien Requirement prisons are subjected to different and less stringent standards than the rest of the BOP's prisons. In fact, the BOP has said that non-citizens "were an appropriate group for housing in privately operated institutions where there are somewhat fewer programs offered to prepare offenders to successfully reintegrate into U.S. Communities.
 
Because reporting is expensive, and reporting resources are thin, Seth has launched a BeaconReader campaign to support his ongoing work on the project. He plans to write more stories and a book about the criminalization of migration. Please consider contributing to the project and sharing this page with those who might be interested. 
bh

February 10, 2016 | Permalink | Comments (0)

Immigration Article of the Day: La gran lucha: Latina and Latino Lawyers, Breaking the Law on Principle, and Confronting the Risks of Representation by Marc-Tizoc González

Marc-TizocGonzalez

La gran lucha: Latina and Latino Lawyers, Breaking the Law on Principle, and Confronting the Risks of Representation by Marc-Tizoc González, St. Thomas University - School of Law 2016 13 Hastings Race and Poverty Law Journal 61 (2016)

Abstract: In a time when people in the United States have been taking to the streets en masse to protest unjust sociolegal conditions like police brutality and the draconian enforcement of immigration laws, the time is ripe to re-conceptualize what it means to break the law on principle. Twenty-five years ago, Harvard Law Dean Martha L. Minow conceptualized “the risks of representation” for lawyers whose clients “entertain breaking the law as one of their strategies for achieving social change[.]” Responding substantively to Minow’s ideas, Houston Law Professor Michael A. Olivas presented three case studies to illuminate the risks of nonrepresentation, terminated representation, and truncated representation. Taking Minow’s and Olivas’s insights seriously, Professor González applies them to current sociolegal situations in the United States like Central American children and women who seek asylum, immigrant workers at industrial food processing plants, and social activists indicted by racially compromised grand jury systems. Delving deeply into the ethical implications of representing clients “when the state regime is the law breaker,” González proffers the concept of La gran lucha (the great struggle) to advance “the understanding that our pasts are not merely multicolored: rather, our diverse heritages wind through centuries of socio-legal struggle, which transcend the current nation state.” He concludes by presenting a partial history of Chicana/o and other Mexican American lawyers in California and Texas in order to contextualize the efforts of lawyers, and clients, who seek to create social change today within actual lineages and fictive genealogies of past lawyers who confronted the risks of representation.

KJ

February 10, 2016 in Current Affairs | Permalink | Comments (0)

"Startup" Visa Reform Unlikely in the Near Future

From Bloomberg:

When it comes to STARTING BUSINESSES, immigrants do more than their fair share. While 13 percent of the U.S. population is foreign-born, 24 percent of tech and engineering companies created between 2006 and 2012 had an immigrant founder, according to the Kauffman Foundation, a researcher that advocates for entrepreneurs. In Silicon Valley, the figure was 44 percent. Among those founders are WhatsApp CEO Jan Koum and Instagram’s technical lead, Mike Krieger. Kunal Bahl returned home to India to build e-commerce company Snapdeal after failing to secure a U.S. visa upon graduating from Wharton. Snapdeal was valued at $5 billion by INVESTORS last year and employs more than 4,000 people.

There is no visa specifically designed for foreigners who START companies in the U.S. A six-year effort to create one died in Congress last year. Legislation won’t have a chance at passing until at least 2017 and more likely not until 2022, said Craig Montuori, an advocate for reform who estimates that hundreds of founders in the U.S. are struggling to get federal work authorization. “We got a lot of support on Capitol Hill and very little opposition, but few people were willing to make it a priority,” he said.

In Washington, most of the debate around tech visas centers on H-1Bs, typically used by big companies and research universities. Lobbying groups such as Mark Zuckerberg’s FWD.us say more H-1B visas would keep U.S. companies from losing out on top talent. Read more...

bh

February 10, 2016 | Permalink | Comments (0)

National Security Threats Symposium at Emory Law

Carlos Holguin: The Architect of the Flores Litigation

0216FHOLGUINrazorwire2FINAL

The ABA Journal has an in-depth story by Lorelei Laird about Carlos Holguin, of the Center for Human Rights and Constitutional Law who filed the landmark Flores litigation in the 1980s, the settlement of which was the basis for an order last year by federal district judge Dolly Gee concerning the detention of women and children from Central America. The inspiring story should remind us all of the power that the law holds in the hands of a dedicated group of lawyers.

Now styled Flores v. Lynch—the case has outlasted eight attorneys general—an appeal is pending before the U.S. Court of Appeals for the Ninth Circuit.  Throughout the case’s long history—which includes a trip to the U.S. Supreme Court, Carlos Holguín has been its lead counsel.

As summarized in the story, the Flores settlement is

"one of the key legal protections for unaccompanied immigrant minors who are detained by the federal government. The settlement requires minors to be released promptly or, if that’s not possible, placed in the least restrictive setting appropriate for their situations. It lays out the right to basics like adequate food, water, sinks, toilets and medical care. Holguín says it was the basis for a provision in the 2002 Homeland Security Act that took detained minors out of INS custody.

And it’s been a powerful tool for immigrant children’s advocates. During the most recent wave of immigration, students at the University of Texas immigration law clinic regularly invoked Flores when arguing for releasing mothers with children .  . . . During a prior wave, it was the basis for civil rights lawsuits against a now-closed family detention facility in Texas.

Flores itself has been reopened at least three times—in 2001, 2004 and 2014—because of alleged violations of the settlement’s guarantee of safe conditions and prompt release. The most current reopening ended with an order giving the federal government until October to release minors and their mothers from immigration jails. The government has done so, but advocates are still concerned about conditions for those who remain."

KJ

February 10, 2016 in Current Affairs | Permalink | Comments (0)

Princeton, NJ: Integrationist City In A Time of Federal Enforcement

Princeton, New Jersey, wants to be immigrant-friendly. The city supports drivers licenses for undocumented migrants and offers county identification cards regardless of immigration status.

The city's website includes information on what to do in the face of ICE enforcement. There's a letter and "know your rights" information in English and Spanish.

Two men were recently arrested by ICE in Princeton. And the city's authorities are taking steps to make it clear that this was a federal and not a local action. City Councilwoman Heather Howard is worried that the arrest "cause fear and panic in the community, and they work to undermine the community's effort to improve law enforcement relations."

-KitJ

February 10, 2016 in Current Affairs | Permalink | Comments (0)

Tuesday, February 9, 2016

Emigration Trends and Policies in China: Movement of the Wealthy and Highly Skilled

Chana flag

China has become one of the world’s leading source countries of migrants—a result of market-oriented reforms beginning in the 1970s that reduced barriers to emigration. But the migration picture is a divergent one: High-skilled emigration is rising fast, while low-skilled migration has been bogged down by increasingly detailed regulations that serve to slow the recruitment process for unskilled and low-skilled Chinese workers seeking to go abroad.

As the Chinese New Year begins, a new report from University of Oxford anthropologist Biao Xiang, Emigration Trends and Policies in China: Movement of the Wealthy and Highly Skilled, analyzes the evolution of Chinese emigration since the end of the 1970s to the present day.

Current trends mark a reversal of old patterns. Before 1949, Chinese emigration was primarily composed of low-skilled or unskilled migrants. Today, wealthy elites and the growing middle class are increasingly pursuing educational and work opportunities overseas for themselves and their families, facilitated by their rising incomes. In response, the Chinese government has launched a variety of initiatives to engage and connect with its diaspora members, without necessarily expecting their permanent return.

This report is the sixth in a series from the Migration Policy Institute’s Transatlantic Council on Migration focused on the scale and implications of the emigration of talented young people and the concrete actions governments and societies can take to mitigate the costs of emigration and capture more of its potential benefits. Earlier reports in the series can be read here
 

KJ

February 9, 2016 in Current Affairs | Permalink | Comments (0)

Small time drug offenses can cause big time immigration problems

SCOTUSBlog on-line symposium on United States v. Texas continues

Yesterday, the SCOTUSBlog on-line symposium commenced with two posts.  We posted previously about the introductory contribution by Jay Sekelow of the American Center for Law and Justice

The second contribution ("Symposium: Unable to show harm, can Texas employ the Court as a political referee?" is by Anne Egeler is Deputy Solicitor General for the State of Washington. She was on an amicus brief on behalf of Washington, fourteen other states, and the District of Columbia in support the grant of certiorari in United States v. Texas.  Egeler makes a standing argument: 

"The bottom line is that the lower courts erred by allowing Texas to pursue a political grievance without showing any real harm. The nationwide injunction is preventing the states and their residents from receiving the substantial economic, public safety, and humanitarian benefits that will flow from the president’s immigration actions. Hopefully, the Supreme Court will recognize these realities, reverse the Fifth Circuit, and allow the president to make the same sorts of immigration enforcement decisions that his predecessors have made for decades. We all stand to benefit."

Dan_Stein_042213

Dan Stein, President of the Federation for American Immigration Reform, offers a defense of the Fifth Circuit ruling on separation of powers grounds in Why United States v. Texas is the most important case the Court will decide this year.

In "Why it’s time to unfreeze DAPA," Brianne Gorod, Chief Counsel at the Constitutional Accountability Center and co-author of an amicus brief on behalf of a bipartisan group of former members of Congress in support of the Obama administration petition for certiorari in United States v. Texas, defends the administration's exercise of prosecutorial discretion in formulating DAPA.

 KJ

February 9, 2016 in Current Affairs | Permalink | Comments (0)

Federal Government Sued to Release Data on Racial Profiling in Immigration Enforcement

Heartland Alliance’s National Immigrant Justice Center (NIJC) filed a federal lawsuit yesterday in the U.S. District Court for the District of Columbia demanding that the Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) release data and documents about the use of racial profiling in the controversial immigration enforcement program known as the Priority Enforcement Program (PEP), formerly Secure Communities.
 
The government has refused to release the Secure Communities Statistical Monitoring reports and other documents that ICE and DHS’s Office of Civil Right and Civil Liberties (CRCL) created as part of its efforts to monitor for potential racial profiling within the enforcement program. DHS rebranded the enforcement program as PEP in November 2014, but the racial profiling monitoring requirements remained the same. NIJC requested the records through a Freedom of Information Act request in March 2014.
 
Under the Secure Communities/PEP program, when state and local law enforcement officers arrest and book an individual into custody, they fingerprint him or her and send the fingerprints to the FBI. The FBI automatically runs the fingerprints (including those of U.S. citizens) against a DHS immigration database, which alerts ICE agents to immediately investigate the individual in custody. Based on the database alert, DHS may issue a detainer, requesting that local law enforcement hold the individual for up to 48 hours until ICE can assume custody.
 
The reporting requirements were imposed as part of an independent government task force’s recommendations to hold DHS accountable for preventing civil rights and civil liberties violations within the enforcement program. In response, ICE and CRCL hired a criminologist to conduct quarterly analyses of racial profiling data from law enforcement agencies nationwide. Neither ICE nor CRCL has released the reports to the public, or taken remedial measures to address identified incidences of racial profiling within the Secure Communities/PEP enforcement program.
 
KJ

February 9, 2016 in Current Affairs | Permalink | Comments (0)

Monday, February 8, 2016

A Coherent EU Refugee Policy is Needed

From the Economist:

A European problem demands a common, coherent EU policy. Let refugees in, but regulate the flow, says the Economist.

Refugees are reasonable people in desperate circumstances. Life for many of the 1 million-odd asylum-seekers who have fled Syria, Iraq, Afghanistan and other war-torn countries for Europe in the past year has become intolerable. Europe is peaceful, rich and accessible. Most people would rather not abandon their homes and start again among strangers. But when the alternative is the threat of death from barrel-bombs and sabre-wielding fanatics, they make the only rational choice.

The flow of refugees would have been manageable if European Union countries had worked together, as Angela Merkel, Germany’s chancellor, has always wished (and The Economist urged). Instead Germany and Sweden have been left to cope alone. Today their willingness to do so is exhausted. Unless Europe soon restores order, political pressure will force Mrs Merkel to clamp down unilaterally, starting a wave of border closures (see article). More worrying, the migrant crisis is feeding xenophobia and political populism. The divisive forces of right-wing nationalism have already taken hold in parts of eastern Europe. If they spread westward into Germany, France and Italy then the EU could tear itself apart.

The situation today is a mess. Read more...

bh

February 8, 2016 | Permalink | Comments (0)

Immigration Article of the Day: Deferred Action: Considering What Is Lost by Elizabeth Keyes

Keyes

Deferred Action: Considering What Is Lost by Elizabeth Keyes, University of Baltimore - School of Law January 22, 2016 Washburn Law Journal, Forthcoming

Abstract: This Essay focuses on the cost that comes from the loss of a different kind of discretion in immigration law, where residual discretionary authority can act as a corrective measure at the edges of rules. Such discretion at the law's margins constitutes a vital means to correct the errors that inevitably happen when even the best rules do an imperfect job of capturing the world's complexity. The essay explores who is left in the limbo between DACA and DAPA on the one side, and carefully defined enforcement priorities on the other. This essay also points to the troubling trend that even where discretion remains in these programs and priorities, the discretion exists only to limit the relief available to immigrants: the enforcement box may, as a matter of discretion, expand, but the benefit box may, as a matter of discretion, shrink. The Essay concludes that advocates and scholars can and should celebrate what these programs do accomplish, but we must ultimately demand something much better than the deal we are getting: immigration reform and the restoration of some degree of discretion at the points in the law where well-defined rules meet the individuals who show those rules' limitations.

KJ

February 8, 2016 in Current Affairs | Permalink | Comments (0)

DAPA’s Unlawful Presence Problem by Michael Kagan

Faculty_Kagan_Micahel

The commentary on United States v. Texas keeps coming.  Here is Michael Kagan's latest in Notice & Comment, the Yale Journal of Regulation blog.  In encapsulates his argument as follows: 

"Like many immigration law professors, I have long thought that President Obama’s deferred action programs are within the Executive’s statutory and constitutional authority. But as I re-read the Fifth Circuit opinion and the briefs in US v. Texas, I am becoming persuaded that the states challenging DAPA may have a valid point about one aspect of the program.

In short, deferred action is a well-established form of prosecutorial discretion in immigration enforcement that the Court has long accepted. But DAPA may go a step too far by declaring that beneficiaries of prosecutorial discretion should be considered `lawfully present' in the United States even though they are removable according to the Immigration and Nationality Act (INA). Texas’ strongest arguments against DAPA are about this lawful presence provision, not about deferred action."

KJ

February 8, 2016 in Current Affairs | Permalink | Comments (0)