Sunday, May 24, 2015
Stephen Magagnini reports on a gathering earlier this month at the California State Railroad Museum. Several hundred of the region’s leading Chinese Americans joined Sacramento Mayor Kevin Johnson in welcoming a delegation from the Chinese consulate general in San Francisco to see a photo display featuring murals, figurines and sculptures depicting Chinese railroad workers and celebrating the 150th anniversary of the building of the transcontinental railroad over the Sierra Nevada.
More than 12,000 Chinese workers took on a challenge that other Americans workers wouldn’t, getting paid between $28 and $40 a month to work 12 to 14 hour days, often in blizzards and blazing heat on cliffs that had to be blasted.
Photo from California History Room, California State Library
CNN reports that, 35 years after being assassinated while holding mass, Archbishop Oscar Romero was beatified on Saturday, bringing the slain priest a step closer to sainthood in the Catholic Church. Tens of thousands of people crowded El Salvador's Savior of the World Plaza for the bestowing of the honor. Romero was a hero of the liberation theology movement, which views the church as properly siding with the oppressed. His beatification was delayed for years because Romero was controversial within the Church. Pope Francis declared Romero a martyr earlier this year.
I had the opportunity in 1986 -- a time in which political violence was rampant in the country -- to visit Archbishop Romero's tomb in the Cathedral of San Salvador. It was a moving experience and clearly a scared place to the people of El Salvador. President Obama visited the tomb on a trip to Latin America in 2011.
Saturday, May 23, 2015
The Vera Institute of Justice is looking to hire a Senior Program Associate for its New York City office.
The Senior Program Associate will work on the Legal Orientation Program (LOP), which informs detained immigrants about their rights, and the immigration court and detention processes.
So, brush off your resume because applications will be accepted on a rolling basis.
Immigration Law & the Military addresses immigration issues encountered by:
Noncitizens serving on active duty
Noncitizens affected by disciplinary and court martial procedures
U.S. military personnel who marry citizens of other countries
Children of U.S. military personnel who are adopted overseas and are in need of immigrant/nonimmigrant visas
Immigration Law & the Military is the only resource available that gives you the tools to tackle issues such as:
Selective service and enlistment rules Special rules and procedures for naturalization through military service
Types of military discharges
Implications of military disciplinary proceedings & courts martial
Parole in Place
Military-related issues for family members of military personnel
Civilian employees/contractors who work alongside military member
In addition to the above topics,Immigration Law & the Military explores common military-related issues through real case examples and provides information on special resources available to military personnel and their family members. Confidently handle immigration cases for military personnel and their families with the help of a top expert in the field.
As a retired Lieutenant Colonel in the Military Police, U.S. Army Reserve, Margaret Stock has extensive experience with U.S. military issues. She has also worked as a professor at the United States Military Academy at West Point, and as an adjunct instructor at the University of Alaska. Margaret is a member of the board of the Federal Bar Association’s Immigration Law Section and a former member of the American Bar Association’s Commission on Immigration. In 2013, she was named a MacArthur Foundation Fellow by the John D. & Catherine T. MacArthur Foundation.
Friday, May 22, 2015
We have blogged before about what some have called maternity tourism - the issue of non-citizen women entering the United States and giving birth in the United States. Another article about this issue was featured in the Huffington Post two weeks ago (see here).
Apparently to address this issue, Rep. Dana Rohrabacher (R-Ca) introduced H.R. 2.484, which would make inadmissible "certain aliens who are pregnant are ineligible to receive visas and ineligible to be admitted to the United States."
Kevin Penton of Law360 reports that Rep. Rohrabacher explained that "the amendment to the Immigration and Nationality Act would help stop women from traveling to the United States for the primary purpose of having their children become U.S. citizens by right of birth." He further explained, “While different proposals have been introduced to solve this problem, my approach does not require a change to the Constitution or risk the possibility of the Supreme Court declaring it unconstitutional[.]”
Albany Law School’s Law Clinic & Justice Center seeks a Fellow to provide legal advocacy services and direct representation to clients in its new Immigration Law Clinic and to perform other related duties pursuant to grants and contracts. The Immigration Law Clinic teaches law students practical lawyering skills in the context of Family Court and immigration proceedings at which students represent individuals who are seeking to regularize their immigration status. Additionally, the Fellow will assist the Director with research and analysis on long-term projects. At the Director’s discretion, the Fellow may have limited opportunities for participating in trainings, supervising in-class activities, assisting in program design and leading case rounds. This position begins July 1, 2015 and lasts for one year.
Qualified candidates will possess a JD degree and admission to the New York State bar. Practical legal experience in immigration and family law is preferred. Spanish language skills are desirable, but not required.
Interested applicants should submit a resume and cover letter, by June 12, 2015, to:
Albany Law School Director of Human Resources 80 New Scotland Avenue Albany, NY 12208-3494 Fax: (518) 445-3262 E-mail: email@example.com
The Tape Family (c. 1884-85) via NWHM
In 1885, nearly 70 years before Brown vs. Board of Education, Mary Tape sued the S.F. School District. She sought the right to enroll her daughter in public school. Her child had been excluded because she was Chinese.
Superior Court Judge James Maguire found in favor of Mary Tape, writing: “To deny a child, born of Chinese parents in this state, entrance to the public schools would be a violation of the law of the state and the Constitution of the United States.”
The California Supreme Court agreed: "respondent here has the same right to enter a public school that any other child has."
Despite these rulings, the S.F.S.D. continued to deny access to school, arguing that Mary's daughter did not have the required vaccinations.
For more about the Tape family, check out this article from the Berkeley Architectural Heritage Association. You may also find of interest Mae M. Ngai's article Birthright Citizenship and the Alien Citizen.
Sen. Bernie Sanders (I-VT) recently announced that he will run for President, becoming the first to challenge Hillary Clinton for the Democratic nomination. Sanders has said little about what his immigration policy platform will be.
Immigration Impact in a short piece found that Sanders has previously staked out the following positions:
1. Sanders supports President Obama’s executive action on immigration.
2. Sanders voted for comprehensive immigration reform in 2013. Sanders was initially reluctant to support the Senate Immigration reform bill, S. 744 over concerns with guest worker programs.
3. Sanders remains skeptical of guest-worker programs.
The restrictionist group Numbers USA concludes that Sanders "Usually supports higher immigration, population growth, foreign labor."
Thursday, May 21, 2015
Guest blogger: Gabriela Mendez, second-year law student, University of San Francisco
The “Secure Communities” program (S-Comm) was piloted in 2008 with 14 jurisdictions under the Bush administration and by 2013 was rapidly expanded to include all 3,181 jurisdictions of the U.S. under the Obama administration. The supposed goal of this Immigration and Customs Enforcement program was to deport noncitizen felons and high level criminal immigrants, including long time legal permanent residents. This was to be accomplished by sharing fingerprints between the FBI and DHS at the time of booking at local jails. Instead of the fingerprints only getting sent to the FBI, this program would share them with ICE agents who would put a detainer, or immigration hold for up to 48 hours at the time of release (although sometimes the hold was extended for weeks or months at a time), on individuals ICE agents thought might be deportable immigrants. ICE agents would then make rounds to jails to pick up detainees for deportation proceedings.
There were many problematic issues with S-Comm. Instead of the deportation of level 1 and 2 offenders such as those convicted of serious or violent crimes like robbery, homicide and all other felonies, S-Comm resulted in the deportation of those who Committed misdemeanors or lesser crimes. S-Comm was even netting a large number of non-criminal undocumented immigrants including targets of racial profiling, or victims of domestic violence who were being put in removal proceedings after reporting abuse. It even resulted in the detainment of citizens who perhaps had never had their fingerprints taken. S-Comm resulted in having the greatest impact on level 3 offenders, or minor criminal offenders, which was not the original goal of the program.
The way in which S-Comm was enforced made the name and mission of the program very deceptive in that the opposite of “secure” and “Community” became the reality. Instead, the outcome was that S-Comm was forced upon local jurisdictions, discouraged immigrant Communities from reporting criminal activities, and destroyed Communities and families.
Due to these devastating outcomes, many jurisdictions began trying to opt-out of S-Comm. I first learned about S-Comm through my work at a remarkable Community organization in Santa Barbara County, named Pueblo. Pueblo created a Commission called Keeping Families Together to support immigrant families through the hardships S-Comm produced. S-Comm in Santa Barbara was being used to target parents driving their kids to school, undocumented young people who had resided in Santa Barbara their whole lives, and others who were not level 1 and 2 offenders. Individuals within our own organization became victims of S-Comm. Thus began our long fight to try to pass the Trust Act in California which would put limitations on the cruel immigration hold allowed under S-Comm. In the meantime, many jurisdictions tried to follow in the footsteps of San Francisco Bay Area cities, counties, and local labor councils which had passed resolutions to opt out of S-Comm in 2011.
Finally a version of the Trust Act passed and went into effect January 1, 2014 in California. Many other states had already passed a similar law. Under the Trust Act, immigrants with serious criminal charges can still be held for immigration purposes, but those charged with lesser crimes are released at the time U.S. citizens would be released. The Trust Act has decreased unjustified deportations, rebuilt confidence in local law enforcement, and enabled witnesses and victims to cooperate without fear of deportation.
Increasing numbers of governors, mayors, and state and local law enforcement officials around the country have refused to cooperate with the S-Comm, and many have issued executive orders or signed laws, such as the Trust Act, prohibiting such cooperation. Due to this widespread lack of support, DHS decided in November 2014 to discontinue S-Comm and instead replace it with a newer “refined” program called Priority Enforcement Program (PEP). The underlying question is are we being deceived again and is PEP simply another name for Secure Communities 2.0?
PEP is supposed to reflect DHS’s “new” top enforcement priorities, however the program will continue to rely on the fingerprint data taken at the time of booking just like S-Comm did. The memo issued by DHS about PEP indicates that the driving force behind PEP is because our country has turned its back on S-Comm and is no longer enforcing it. S-Comm needs a new name and fresher look, hence the creation of PEP, so is PEP simply a replacement name for S-Comm?
PEP appears to slightly narrow the scope of people who will be affected, however there is still discretion and ambiguities left about the implementation. Under PEP, ICE should only seek the transfer of an immigrant in the custody of state or local law enforcement through PEP when the immigrant has been convicted of an offense listed in Priority 1 (a), (c), (d), and (e) and Priority 2 (a) and (b) of the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum, or when, in the judgment of an ICE Field Office Director, the immigrant otherwise poses a danger to national security.
Under PEP, most people who have not been convicted of crimes should not be issued a detainer--although undocumented immigrants who are suspected of terrorism or “special circumstances” may be targeted. The “special circumstances” language should be clarified because right now it indicates much discretion as to what circumstances warrant the detainers used in S-Comm.
Under the priorities listed in 1 and 2, PEP will ensnare people found crossing the border illegally, gang members, those convicted of felonies, people who have been convicted of three misdemeanors, and those who have one "significant misdemeanor" on their record. Significant misdemeanors include domestic violence, burglary and drug-selling. Some of these offenses listed could raise issues in practice such as gang involvement where local enforcement agencies in some counties have pressured minors into signing off as gang members for crimes such as shoplifting even if they were not actually gang members. Also listing DUIs in priority 2 is controversial.
Instead of issuing a detainer for the less serious crimes, the DHS memo instructs local and state agencies to notify ICE that the person in question will soon be released instead of holding them like in S-Comm. This notification form could pose a problem if it remains the same as the detainer form used under S-Comm; it could confuse local enforcement agencies into using the same S-Comm practice of detaining.
Another ambiguity that arises is if ICE is truly moving to a post-conviction model of detainer enforcement, such as the DHS memo contends, it should be extremely clear that ICE agents must not issue a notification request unless and until the person has been convicted of a qualifying criminal offense. Right now the language in the memo states that ICE agents may issue notification requests only for people who fall within the elevated subset of priorities enumerated in the memo (and in general when looking at the priorities, these are people who have been convicted). But if ICE starts issuing notification requests for people who have only been charged with the offenses listed in the priorities, then PEP would definitely be reverting back to the past practices of S-Comm.
Although PEP seems to be moving in the right direction by limiting ICE holds, I remain worried. Obama’s executive action on immigration in November 2014 prompted the end of S-Comm and the creation of PEP. Obama stressed “new” targets for DHS: "Felons, not families. Criminals, not children. Gang members, not a mom who's working hard to provide for her kids." We must remember however, that these targets—felons and criminals—were the original targets of S-Comm. S-Comm was supposed to deport only the worst of the worst, however it did not function that way in its implementation. What is stopping PEP from functioning in the same manner? It seems that PEP too could end up unjustly targeting a much broader group in its enforcement. Perhaps if some of the ambiguities in the language of the memo were clarified, I would feel more at ease.
S-Comm was forced upon local jurisdictions and has been responsible for the mass deportation of innocent people from this country while destroying families and violating their basic human rights. PEP seems to have similar goals with a narrower approach, however not much is new in the line of enforcement. Is it time to rally our troops and start getting ready to battle again for the Trust Act 2.0?
Paul Caron over at TaxProf has pointed out that the Max Planck Institute for Tax Law and Public Finance, Norwegian Center of Taxation, and University of Notre Dame are hosting a two day multidisciplinary international taxation conference on Tax Citizenship and Income Shifting at Notre Dame's London Global Gateway. Among the papers of interest to immprofs:
Michael Kirsch (Notre Dame), Citizenship Exits and Neutrality
Ruth Mason (Virginia), Taxing the American Diaspora
Gabriel Zucman (London School of Economics), Taxing Across Borders: Tracking Personal Wealth and Corporate Profits
I'm just going to say what you're all thinking - this looks like so much FUN! Well, maybe you're not as fascinated by my current passion for renunciation of citizenship for tax reasons, but, trust me, it's fascinating. Can't wait to read these articles on SSRN.
Today, the American Immigration Council releases Empty Benches: Underfunding of Immigration Courts Undermines Justice. Among many longstanding problems plaguing the U.S. immigration system is the shortage of immigration judges. Over the past decade, Congress has increased immigration enforcement funding exponentially, yet has not provided the immigration courts commensurate funding to handle the hundreds of thousands of new removal cases they receive each year. The resulting backlog has led to average hearing delays of over a year and a half, with serious adverse consequences.
Adding to the previous work on Asian American and Pacific Islanders, the Center for American Progress has published analysis looking at the demographics and contributions to society of Asian immigrants in the United States today.
Today’s Asian immigrant community is diverse: Chinese, Filipino, Indian, Vietnamese, Korean, and Japanese immigrants are the top six nationalities of Asian immigrants and account for 85 percent of the total Asian immigrant population. These immigrants have contributed greatly to the overall growth of the U.S. Asian population. Since 2008, Asian immigrants have represented approximately 40 percent of the U.S. foreign-born population compared to 27 percent in 2005. The U.S. Asian population is also majority-foreign born: 66 percent of Asian Americans were born in another country, compared with only 37 percent of Latinos.
While many reasons bring Asian immigrants to the United States, the biggest migration pathway is through family-sponsored visas for relatives of U.S. citizens. For example, among Asian immigrants, 55 percent of visas in 2012 were issued through family-sponsored preferences, of which 35 percent were issued to immediate relatives of U.S. citizens.
Nonetheless, Asian immigrants face some of the longest backlogs for visas of any immigrant group. The Immigration and Nationality Act caps visas at 26,000 for any single country. Consequently, countries with the highest family- and employer-sponsored visas have to wait years before reuniting with their families. For example, siblings of adult U.S. citizens from the Philippines wait for more than 25 years for a green card, while the siblings of adult Chinese Americans wait for more than 14 years. Overall, an estimated 4.2 million individuals from Asian countries are currently stuck in family-visa backlogs.
Vox and the New York Times report that the Hillary Clinton campaign for the Presidency has already hired the national director of Latino outreach. Lorella Praeli has credibility with immigration activists. Praeli is part of the generation of young unauthorized immigrants that has been at the forefront of the immigrant rights movement. Praeli came to the United States from Peru at age 10, but didn't find out she was undocumented until she was a senior in high school. (Shebecame a lawful permanent resident in 2012.) For the past few years, she's been the director of policy and advocacy for United We Dream, a leading immigrant rights activist group.
The 50th anniversary of the Immigration Act of 1965 is drawing some attention. As previously highlighted on ImmigrationProf earlier this week, Cambridge University Press will soon publish The Immigration and Nationality Act of 1965: Legislating a New America, an anthology of readings edited by my colleagues Gabriel J. Chin and Rose Cuison Villazor. Contributors include Cruz Reynoso, Gabriel J. Chin, Rose Cuison Villazor, Bill Ong Hing, Kevin R. Johnson, Brian Soucek, Rhacel Salazar Parreñas, Cerissa Salazar Parreñas, Atticus Lee, Valerie Francisco, Robyn Rodriguez, Leticia M. Saucedo, Jeannette Money, Kristina Victor, and Giovanni Peri.
In addition, a conference titled Transforming Migrations: Beyond the 1965 Act will be held at the University of California, Irvine on October 8-9, 2015. The conference will mark both he 50th anniversary of the Immigration and Nationality Act of 1965 (Hart-Celler Act) and the 50th anniversary of the opening of the University of California, Irvine. Speakers will discuss the past, present and future of immigration policy, examining the shift from the inclusionary vision of the 1965 Act to the enforcement patterns we see today. Confirmed speakers include Lawrence Downes (New York Times), Héctor Tobar (University of Oregon, formerly with the Los Angeles Times), Marcelo Suárez-Orozco (UCLA), Jennifer Chacón (UCI), David FitzGerald (UCSD), Roberto Gonzales (Harvard), Marielena Hincapié (National Immigration Law Center), Dan Kanstroom (Boston College), Erika Lee (University of Minnesota), Cecilia Menjívar (University of Kansas) Hiroshi Motomura (UCLA), and Ana E. Rosas (UCI).
Wednesday, May 20, 2015
Neil Genzlinger conducts an exhibition review of the rebuilt Ellis Island in today's NYT. New exhibitions are up at the Ellis Island National Museum of Immigration. He discusses one of the new features of the museum: an illuminated globe (pictured below courtesy of Emon Hassan for the NYT).
Gunslinger explains, "
"One other thing is new at Ellis, and it puts everything else here in a whole different context. It’s a stunning illuminated globe in the main hall, onto which is projected a narrative of human migration since the species first appeared. The movement of people from one place to another, it turns out, isn’t an Ellis Island thing or even an American thing; it’s a human thing, driven by need and hope and oppression and opportunity."
The New York Times is clearly feeling my article Buying the American Dream: Using Immigration Law to Bolster the Housing Market. They just don't know it yet.
My article talks about proposals to shore up the U.S. housing market by offering visas to retirees who purchase high-end real estate. I discuss the unique economic promise of this idea, which would allow for the virtual export of a non-consumable and non-transportable surplus of housing by admitting non-immigrants into the country to purchase it. I conclude, however, that by tying the concept to a nonimmigrant visa, by limiting its availability to retirees, and by allowing purchased homes to be used as rental properties, the legislation would never have accomplished its objective of improving the U.S. housing market.
Enter the New York Times.
In one recent article (Want a Green Card? Invest in Real Estate), the paper reported on an uptick in EB-5 visas being granted to individuals investing in NYC real estate. The article highlighted the large number of Chinese investors, in particular, looking to invest in NYC hotels, condominiums, office towers and public/private works. For the would-be immigrants, the benefits are clear: immigrant status for themselves and their families. As for the U.S. companies seeking investors:
Developers are eager to access the visa program because it is cheaper than many other financing sources. This is in large part because the participants are focused on securing green cards and are therefore willing to take smaller returns on their investment, typically earning less than 1 percent.
Of course the EB-5 program remains fairly small. Only about 3,000 were approved in 2012. (The USCIS has a great set of statistics and charts here.)
And then there's this article on retirees leaving the United States (Homeland Beckons Immigrants as Retirement Nears). The NYT reports that foreign-born individuals are leaving the U.S. to spend their retirement years in the countries of origin, citing lower costs of living, family ties, and healthcare costs.
Real estate, retirement, and visas. Sounds familiar!
CNN reports that likely Republican presidential candidate Chris Christie said that he has changed his position on a pathway to citizenship for undocumented immigrants, becoming the latest Republican to recast their stance on the issue. Christie said Monday that he does not support possible citizenship for the immigrants, calling it an "extreme way to go." In 2010, the newly-elected Republican encouraged leaders in Washington to secure the border but also to "put forward a common sense path to citizenship for people."
The Economic Benefits and Electoral Implications of DAPA: DAPA Would Result in $164 Billion Increase in GDP, $88 Billion Increase in Incomes for All Americans, Create 20,538 Jobs Annually over 10 Years
New analysis published today by the Center for American Progress finds that implementing DAPA would result in a GDP increase of $164 billion, an $88 billion increase in incomes for all Americans, and create 20,538 jobs per year over the next 10 years.
The analysis looks not only at the economic benefits of implementing the Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, program—which would have gone into effect today were it not currently blocked in ongoing litigation brought by Texas and other states before an ideologically motivated judge from one of the most conservative circuit courts in the country—but also at the electoral implications of this delay given the nation’s shifting voter demographics.
These are the important numbers to keep in mind: There are 3.7 million individuals who would benefit from DAPA. Combined, these individuals have 5.5 million U.S. citizen children. More than half a million of these children—nearly 600,000—are currently of voting age, and 1.7 million will be of voting age by the 2020 presidential election. Given that nearly 60 percent of Latino registered voters of all ages say they know family, friends, co-workers, or others who are undocumented, it is impossible to deny the likely effect that blocking implementation of a program that would protect loved ones would have on the reasoning of these voters.
As polls cited in the analysis find, 89 percent of Latinos support deferred action, 65 percent of Asian Americans polled in 11 states support executive actions on immigration, and Americans as a whole favor the DAPA policy by a 76 percent to 19 percent margin.
Tuesday, May 19, 2015
Guest blogger: Darcy Morris, third-year law student, University of San Francisco
The criminal justice system’s overlap into immigration law can be confusing, particularly when looking at the effect of a criminal conviction on an immigrant. While criminal convictions have negative consequences in general, the immigrant population suffers collateral consequences as well. The consequences are designed to prevent outsiders from committing crimes in the United States and remove them from our country without allowing re-entry if they do. Proposition 47 has changed the criminal justice system in many ways with objectives of safer communities and maximization of alternatives to incarceration for nonviolent crimes. Yet, in spite of a large immigrant population, many of whom get incarcerated and deported, California’s Prop 47 fails to include any immigration driven protections. The proponents of Prop 47 missed an opportunity to do more for immigrants who may face deportation for certain crimes. Because the proponents did not incorporate the effect on immigrants into their thinking, Prop 47 may be worse for immigrants. The proponents were trying to make sure that sex and violent offenders would not get extra protections, but that everyone else should be able to benefit equally from the new protections. However, because there is no language about immigrants, some unforeseen consequences may happen, and more arrests/deportations may happen as a result. To understand how Prop 47 legislation intertwines with immigration law, a general understanding of both is necessary.
On November 4, 2014, California voters passed Prop 47, also known as the “Safe Neighborhoods and Schools Act.” Prop 47 modifies the punishment for many nonviolent crimes from a felony to a misdemeanor. The legislation is rooted in the reality of prison overcrowding where large portions of inmates are non-serious, non-violent offenders rather than violent offenders. In order to reduce prison populations, Prop 47 serves to provide lesser punishments for low-level offenders by making certain crimes straight misdemeanors. Additionally, Prop 47 creates a fund to support education in schools on crime prevention, trauma recovery services for victims, and mental health and substance abuse treatment to prevent recidivism. Prop 47 is accompanied by the recently passed Senate Bill 1310 (SB1310) which decreased the maximum sentence for misdemeanors from 365 days to 364 days for convictions after January 1, 2015. Yet neither Prop 47 nor SB1310 have any specific language addressing immigrants or immigration.
Prop 47 alters felonies to misdemeanors for some property crimes and drug crimes. Property crimes include commercial burglary, forgery, non-sufficient funds checks, grand theft, possession of stolen property, and petty theft with a prior where the value taken does not exceed $950. Prop 47 also changes the sentence for theft and shoplifting from one year to just six months. The drug possession crimes include possession of a heroin, cocaine, concentrated cannabis, methamphetamine, mushrooms, and PCP. However, prop 47 disqualifies anyone from its benefits who is a sex registrant or who has been convicted of a sexually violent or other serious, violent offense.
While Prop 47 does not specifically reference immigration law, two main types of crimes that are red flags for immigrants are affected--crimes involving moral turpitude and aggravated felonies. A crime involving moral turpitude (CIMT) is defined as a “reprehensible” act that demonstrates reckless or immoral behavior. CIMT’s typically are crimes causing great bodily injury, theft crimes involving fraud, and lewd or sexual intent crimes. A lawful permanent resident (LPR) can be deported with just one conviction of a CIMT if the imposed sentence length is 365 days when committed within five years of admission to the United States. Two CIMT convictions automatically make noncitizens deportable regardless of the length of the sentences. Also, a CIMT eliminates “cancellation of removal” relief for undocumented immigrants, a form of relief that allows undocumented immigrants who have resided in the United States for ten years to apply for LPR status. Any CIMT conviction causes inadmissibility except in the case of misdemeanors with no more than 6 month imposed sentences. An aggravated felony under immigration law is a criminal conviction from a set of crimes when the imposed sentence is 365 days or more, although some crimes are aggravated felonies regardless of the sentence. Surprisingly, aggravated felonies do not have to be actual felonies or even serious felonies; they can be minor felonies and even minor misdemeanors if the sentence is a year or more. Even more detrimental than a CIMT, a single aggravated felony causes a noncitizen or even a LPR who just has yet to be naturalized to be deportable, and it bars almost all types of deportation waivers. Common aggravated felonies include theft, receiving stolen property, burglary, and forgery.
Putting all of that information together, defense attorneys are armed with new approaches to avoid CIMT or aggravated felony convictions. Easiest to see is SB1310 preventing deportation for an immigrant’s first and only misdemeanor because it cannot be an aggravated felony, nor will it qualify as a deportable CIMT. Another obvious benefit to immigrants is that Prop 47 is retroactive, meaning even convictions prior to November 4, 2014 may be petitioned for re-designation. Reduced misdemeanors under Prop 47 will result in a sentence of under a year with SB 1310. With reduced sentences, immigrants may have newfound access to education, work authorization, housing, drug or alcohol treatment programs, and other social services. Also, President Obama’s November 4, 2014, enforcement objectives classify felony convictions as the number one priority for deportation, so with reduced sentences immigrants may have a better opportunity for temporary relief to acquire citizenship.
While these changes in the law appear to provide significant help for immigrants, many problems still exist. Prop 47’s newly created shoplifting offense has only a 6-month sentence and was created to make non-violent theft charges result in lesser punishment than before. But the elements of the new crime require “the intent to commit larceny,” and crimes with the intent to commit larceny are CIMTs. This means that any non-citizen may want to plead guilty to the more serious charge of second-degree burglary because it requires the intent to commit larceny or any felony. When the language of that element has "or any felony with it", it no longer requires the crime to be a CIMT because which aspect of that element is ambiguous, therefore avoiding a CIMT conviction where the language must be clear. However, the burglary sentence would be over 6 months, although still 364 days thanks to SB1310, but the immigrant's record would have a burglary charge rather than a shoplifting charge. Thus, non-citizens can face worse consequences than U.S. citizens for the same crime, regardless of whether they are undocumented or LPRs with Prop 47.
Even more distinct is the difference in a drug conviction for a noncitizen versus a citizen. As mentioned earlier, Prop 47 does not reference immigration, and drug crime convictions remain severe, such that first minor drug offenses cause deportability and inadmissibility, and most aggravated felonies require mandatory detention. Even without a drug conviction, an immigrant may face deportation for simply admitting to drug abuse or addiction, or when law enforcement “suspects drug trafficking.” When a rehabilitation program can be an alternative to incarceration, some noncitizens are not eligible because of the substantial likelihood of deportation before completion of the program. When a non-citizen’s conviction is dismissed upon completion of a diversion program such as rehabilitation, the conviction still exists under federal law and remains grounds for deportation. Rather than giving drug users treatment, the law avoids the problem by sending the problem somewhere else.
That is not to say criminal convictions for immigrants do not require or deserve some form of punishment. But Prop 47 does not give serious or violent offenses any sort of special treatment and specifically disqualifies anyone with those convictions. Non-citizens and citizens alike go through the same criminal process for those types of offenses. However, the crimes that Prop 47 does reduce punishment for do not always give immigrants that benefit and many times will result in harsher criminal punishments along with immigration consequences including deportation and inadmissibility. Deportation and inadmissibility can tear families apart, return immigrants to dangerous communities, and forbid any return to the life they had in the United States.
The drafters of Prop 47 may not have realized the significant problems drug crimes still pose for immigrants. Similar to the unintended impact of the War on Drugs, Prop 47 may be counterproductive to its goals by unfairly penalizing immigrants. The War on Drugs most heavily impacted minorities and resulted in the incarceration of a substantial percentage of the black population. Law enforcement could arrest people for drug crimes with haste and with less accountability, motivated by financial incentives based upon the number of arrest made, regardless of the crime. The length of time necessary to complete a non-violent drug arrest contrasts greatly with the time necessary for a rape or murder arrest, so officers racked up arrests in low-income minority communities with ease. Similarly, immigration laws allow law enforcement along the border a similar ability to arrest someone. Both drug use and undocumented immigrants are stigmatized by society as something we do not like or want in our country. Combining the two stigmas creates a recipe for disaster for immigrants. Because Prop 47 does not address immigrants convicted of the reduced crimes, immigrants will likely be targets for law enforcement with much harsher consequences than non-immigrants, even if they are here lawfully. While Prop 47 is a good start to reducing the prison crisis and the War on Drugs, immigrant protections must be incorporated.
While clear distinctions between “migrant” and “refugee” have been drawn in current humanitarian and immigration policy interpretation and practice, in reality the line between these two categories is far from obvious—and people can fall within both categories at once or shift from one to the other.
Faced with long-term displacement, many refugees turn to migration as a key livelihood strategy. This has blurred the sharp line policymakers seek to draw between those moving to seek protection from persecution and those moving for better economic opportunities. The resulting mixed flows, now being seen in the Mediterranean, at the U.S.-Mexico border, and elsewhere, challenge the ability of governments and others to separate “refugees” from “migrants.”
A new report from the Migration Policy Institute’s Transatlantic Council on Migration, From
Refugee to Migrant? Labor Mobility’s Protection Potential, argues that current humanitarian and immigration policies need to be recalibrated to acknowledge the important role that mobility plays in refugees’ response to displacement. Particularly since many of these movements currently occur
through irregular channels, opening new legal pathways—and improving access to existing migration channels—is essential to the effective functioning of the international refugee protection regime and can also be a boost to labor markets in countries that host refugees as well as those that are preferred destinations.
The report explores the rationale behind developing protection policies that are more open to migration. First, such strategies seek to address, in some part, the irregular movement of refugees by offering them legal routes to economic opportunities elsewhere. Second, such policies may bolster the implementation of durable solutions to displacement and increase opportunities in countries of first asylum. The author recommends addressing refugee-specific barriers, for example lack of access to travel documents, to permit access to existing migration channels, as well as providing other permanent and temporary migration opportunities for refugees.