Saturday, December 10, 2016
Human Rights Day is celebrated annually across the world on 10 December every year. The date was chosen to honour the United Nations General Assembly's adoption and proclamation, on 10 December 1948, of the Universal Declaration of Human Rights (UDHR), the first global enunciation of human rights and one of the first major achievements of the new United Nations. The formal establishment of Human Rights Day occurred at the 317th Plenary Meeting of the General Assembly on 4 December 1950, when the General Assembly declared resolution 423(V), inviting all member states and any other interested organizations to celebrate the day as they saw fit.
The day is normally marked both by high-level political conferences and meetings and by cultural events and exhibitions dealing with human rights issues. In addition it is traditionally on 10 December that the five-yearly United Nations Prize in the Field of Human Rights and Nobel Peace Prize are awarded.
This year, Human Rights Day calls on everyone to stand up for someone's rights! Disrespect for basic human rights continues to be wide-spread in all parts of the globe. Extremist movements subject people to horrific violence. Messages of intolerance and hatred prey on our fears. Humane values are under attack.
We must reaffirm our common humanity. Wherever we are, we can make a real difference. In the street, in school, at work, in public transport; in the voting booth, on social media.
The time for this is now. “We the peoples” can take a stand for rights. And together, we can take a stand for more humanity.
It starts with each of us. Step forward and defend the rights of a refugee or migrant, a person with disabilities, an LGBT person, a woman, a child, indigenous peoples, a minority group, or anyone else at risk of discrimination or violence.
Friday, December 9, 2016
The "Mexican repatriation" of the 1930s, the mass removal of persons of Mexican ancestry from the United States in the 1930s that has been documented in the book by Francisco Balderrrama and Raymond Rodriguez, Decade of Betrayal, is a little-known blemish on American civil rights and immigration history. I have referred to it as the "forgotten repatriation." This chapter in U.S. history has had a deep historical impact on the sense of belonging of persons of Mexican ancestry in the United States.
“It is long past time for us to have a complete accounting of this dark period in our nation’s history,” said Congresswoman Roybal-Allard. “As the first Mexican-American woman elected to Congress, I have been proud to call for the first-ever official inquiry into the Mexican Repatriation. The commission I have proposed in this bill will help us get the full facts about these removals, and recommend appropriate legislative actions we can take going forward. This commission will add its voice and power to the continued efforts of advocates throughout the country to ensure the Mexican Repatriation is never forgotten and never repeated.”
During the Mexican Repatriation, men, women, and children of Mexican ancestry were removed from the U.S. in response to public pressure to curtail the employment of Mexican-Americans during the Great Depression. Massive raids were conducted on Mexican-American communities, targeting individuals of Mexican ancestry even when they were U.S. citizens or permanent legal residents. The raids also separated these U.S. citizens and permanent legal residents from their families, and deprived them of their livelihoods and constitutional rights. Many of the people who were removed were never able to return to the United States, the country of their birth.
The commission will consist of seven members, three appointed by the President of the United States, two by the Speaker of the House (in consultation with the House Minority Leader), and two by the President pro tempore of the Senate (in consultation with the Senate Minority Leader). The commission members will review the facts and circumstances surrounding the Repatriation removals, and the impact of these removals on these individuals, their families, and the United States’ Mexican-American community. It will also review past directives of federal, state, and local governments that required the removal of these individuals to Mexico, and any other information related to these directives. Finally, the commission will submit to Congress a written report of its findings and recommendations.
A bipartisan group of Senators introduced a bill on Friday to temporarily protect individuals eligible for Deferred Action for Childhood Arrivals (DACA). Senators Durbin (D-IL), Feinstein (D-CA), Graham (R-SC), and Murkowski (R-AK) introduced the Bar Removal of Individuals who Dream and Grow our Economy (BRIDGE) Act, which would provide work authorization and relief from deportation to individuals who are eligible for the DACA initiative created in 2012 by the Department of Homeland Security (DHS). Click here for further details from Immigration Impact.
Check out this interesting article from the Center for Immigration Studies (yes, the conservative group). John F. Kelly, President-elect Trump's pick to head the Department of Homeland Security, will be the third retired general to lead our immigration agency. The prior two generals were commissioners of the old Immigration and Naturalization Service: Joseph M. Swing (served 1954-1962, appointed by Eisenhower) and Leonard F. Chapman Jr. (served 1973-1977, appointed by Nixon).
Yesterday, President-elect Trump stated that he will nominate Andrew Puzder to lead the Department of Labor. http://www.wsj.com/articles/ending-the-republican-drama-about-immigration-1433715621, interestingly, published an op-ed in the WSJ last year about immigration. And it wasn't restrictionist! Pudzer emphasized border security and legal immigration, but he also said this:
The best way to protect American workers is to generate economic growth. This is not synonymous with aggressively restricting immigration. Most studies conclude that immigration contributes to economic growth as well as innovation, and research and development.
I'm personally buoyed by Anne Coulter's response to the nominee (though in fairness Elizabeth Warren's response was pretty much the same):
Perhaps there will be at least one voice in the room making an argument that immigration can, in fact, benefit the United States.
It's been a loooong week. And I don't know how things are shaping up in your neck of the woods, but I'm looking at temps around -20 tonight. So I could use a little bit of cheer. Enter this HONY story, which definitely fits the bill.
I love Brandon Stanton's work and his many positive immigrant stories!
Freedom of Movement and Undocumented Migrants by Jaya Ramji-Nogales Temple University - James E. Beasley School of Law November 30, 2016 Texas International Law Journal, Vol. 51, No. 2, 2016 Abstract: In our globalized world, international law increasingly facilitates freer movement of goods, services, capital, and knowledge across borders. The same cannot be said of people, for many of whom freedom of movement is still a distant goal. This Symposium Article asks what role international human rights law plays in enabling free movement of people, focusing on the situation of undocumented migrants. It explores three aspects of freedom of movement: The ability to move freely across borders, the ability to move freely within a country that is not one’s own, and the ability to remain in such a country.
Thursday, December 8, 2016
The data crunchers at TRAC Immigration conclude that the outcome for asylum seekers has become increasingly dependent upon the identity of the immigration judge assigned to hear their case. While judge-to-judge decision disparities have long existed, a detailed comparison of asylum decisions handed down by judges sitting on the same Immigration Court bench showed that differences in judge denial rates have significantly increased during the last six years. Nationally, the average decision disparity in asylum cases worsened by 27 percent.
The median level of asylum decision disparity that asylum seekers face is now over 56 percentage points. That is, the assignment of the judge for the typical asylum seeker could alter the odds of receiving asylum by this magnitude. For example, while the specific ranges differed by court, the typical asylum seeker might have only a 15 percent chance of being granted asylum all the way up to a 71 percent chance depending on the particular judge to whom their case is assigned.
Law professor Khaled Abou El Fadl writes about his recent experience re-entering the United States after a trip to Canada. As he describes, he was traveling with his wife and 11-year old son. He is in his "50s, wrestling with a number of health challenges, and I use a wheelchair." The op/ed concludes:
"Before Trump’s takeover, on my journey home, I was made to feel like an outsider, a foreigner seeking entry to my own nation. It was belittling, saddening, and I fear that perhaps this was precisely the point. I battle the conclusion that perhaps the very meaning of democratic citizenship is eroding in my country."
Read the op/ed linked above for details.
Many moons ago, my old man and I spent a balmy afternoon at Churchill Downs.
We had a smart lunch on Bardstown Road and then found our way to the hallowed turf. “Only a couple of races,” my father cautioned. Louisville was neither his speed nor his style. “Two races and we're out, “I promised. To fulfill my commitment, I placed a couple of dunce cap exacta bets featuring the favourite and the least favourite. A win, then another “Why leave when we're just starting to have fun,” said my father, watching me count our winnings. “I like the way you think, sir,” I replied. Three hours and a couple of setbacks later, we walked out of there with five hundred smackers we didn't have when we rushed through the turnstiles.
Long odds on the right day can be kind. That kind of optimism led me, a pro se duffer of the old school, to file a cert petition (Dugdale v. Lynch, 16-7082) with the Supreme Court. The thoroughbred in my exacta box is the Supreme's ruling in Boumediene. My bobtailed nag is the expedited removal system found at INA 235. I want the court to put the nag on the track with the ringer and see how it runs. Boumediene proposed a four-point test for the adequacy of habeas substitutes such as Bush's wartime CSRT and the expedited removal system, hatched in 1997 as part of the IIRIRA. From Luna v. Holder (Second Circuit 2011):
First, in the cases in which the Supreme Court has found a substitute to be adequate and effective, "the purpose and effect of the [substitute] was to expedite consideration of the [detainee's] claims, not to delay or frustrate it." Id. at 775-76, 128 S.Ct. 2229. "When Congress has intended to replace traditional habeas corpus with habeas-like substitutes,... it has granted to the courts broad remedial powers to secure the historic office of the writ." Id. at 776-77, 128 S.Ct. 2229 (noting that in the Section 2255 context, Congress has granted to the reviewing court power to "determine the issues and make findings of fact and conclusions of law" (internal quotation marks omitted)). If Congress succeeds in creating a procedure that is meaningfully "more limited" than habeas review, id. at 778, 128 S.Ct. 2229, as measured by "the sum total of procedural protections afforded to the detainee at all stages, direct and collateral," then that procedure is not an adequate replacement for habeas, id. at 783, 128 S.Ct. 2229. Second, because habeas is "designed to restrain" the Government's power, the scope of the substitute procedure must not be "subject to manipulation" by the Government. Id. at 765-66, 128 S.Ct. 2229. Third, a mechanism for review that "is wholly a discretionary one" is "an insufficient replacement" for habeas. Id. at 791, 128 S.Ct. 2229. Fourth, the entity substituting for a habeas court "must have adequate authority ... to formulate and issue appropriate orders for relief," id. at 787, 128 S.Ct. 2229, including "the power to order the conditional release of an individual unlawfully detained," id. at 779, 128 S.Ct. 2229.
I want the Supreme Court to tell us whether or not the expedited removal system should be sent to the glue factory. I think it should. And the Supreme Court should tell Congress exactly what they told them after St. Cyr: Smarten up. That's how the safety valve of 1252(a)(2)(D) came to be, mandating judicial review of questions of laws and constitutional issues.
For almost two decades, the expedited removal system has enjoyed immunity from judicial review because 1252(e)(3)(B) has barred every district judge and every appellate court panel from claiming jurisdiction. In addition, 1252(a)(2)(A) closes off inquiry into whether somebody actually belongs in the expedited removal system or how they came to be put there.
This is the perfect opportunity for the Supreme Court to use Boumediene to breed a new and powerful bloodline of immigration jurisprudence, one in which habeas and due process ride together all the way to justice. In his Jennings v. Rodriguez reply brief, the Solicitor General contends that the expedited removal system is almost always constitutional and somebody who feels they've been played dirty can make an “as-applied” challenge in a habeas petition. But Justice Breyer at oral argument mused openly about his frustration with the disparate kinds of pre-hearing relief available for those caught “in the desert” and those apprehended at the border. This of course jibes with Gerald Neuman's longtime disquiet with the use of the expedited removal system in the interior of the United States. At best, I hope my petition pushes the justices to give the expedited removal system and all its attendant agency regulations a proper full facial interrogation.
If Trump is going to play tough at the border or mess with what constitutes the border, arriving aliens must be treated in line with the Constitution and their claims properly considered, regardless of their creed, colour or national origin. Likewise, aliens in lawful status need to be certain they can protect their Verdugo connections and Eldridge equities as they cross back and forth over the border of the country they have chosen to call home.
Amy Chozick in the New York Times reports that President-Elect Donald Trump may be softening his position with respect to the treatment of recipients of Deferred Action for Childhood Arrivals relief, which he harshly criticized in the presidential campaign. Trump frequently claimed that President Obama's executive actions on deferred action were unlawful.
“We’re going to work something out that’s going to make people happy and proud,” Mr. Trump told Time magazine. (Time recently named Trump its "Person of the Year"). “They got brought here at a very young age, they’ve worked here, they’ve gone to school here. Some were good students. Some have wonderful jobs. And they’re in never-never land because they don’t know what’s going to happen.”
The Dreamers, are likely to present Mr. Trump with a major policy test for his administration.
In the Time interview, part of the magazine’s naming of Mr. Trump its person of the year, the president-elect did not go into specifics or say whether he would reverse his promise to overturn Mr. Obama’s executive actions.
Many DACA recipients have feared what a Trump administration might do to DACA. Among the possibilities: "He could withdraw the president’s executive order and let Congress address the young immigrants legislatively, which several lawmakers crave to do next year. Or Mr. Trump could do nothing, leaving the order in place.'
At a meeting between the president-elect and Mayor Rahm Emanuel of Chicago on Wednesday, Emanuel also said that he had presented Mr. Trump with a letter signed by 14 mayors who agree that Dreamers should be allowed to remain in the country. “They were working hard toward the American dream,” Mr. Emanuel said. “We should embrace them rather than do a bait and switch.”
Abstract: In this response to Matthew J. Lindsay’s article “Disaggregating 'Immigration Law',” Kagan argues that, despite judicial discomfort, the Supreme Court has difficulty entirely discarding the plenary power doctrine because it has the power to guide resolution of the diverse array of problems that arise involving non-citizens. However, it may be a mistake to assume that all questions involving non-citizens form one coherent legal system in the manner of torts law or criminal procedure. Many different bodies of law impact non-citizens in particular ways. These disparate bodies of law together are known as “immigration law,” but perhaps the only thing they really share is that they all affect non-citizens. By breaking immigration into narrower bodies of law, each focused on a unique context and set of concerns, the difficult legal problems should become easier to manage. However, drawing on recent work by David S. Rubenstein and Pratheepan Gulasekaram, Kagan points out there is a danger in unprincipled desegregation, driven by a desire to reach particular results in individual cases.
Here is my response to the Matthew Lindsay article.
Wednesday, December 7, 2016
Trump has named retired four-star United States Marine Corps General John F. Kelly to head the Department of Homeland Security. Kelly has spent nearly his entire life in the U.S. militar7 (1970-1972, 1976-2016).
According to WaPo, Kelly is a "blunt-spoken border security hawk" who has opposed the closure of Guantanamo Bay detention center.
Kelly has personally felt the ultimate burden of military service - his youngest son died in battle during his 2010 tour in Afghanistan.
Skill Underutilization Costs College-Educated Immigrants More Than $39 Billion in Forgone Wages Annually
The United States has long attracted some of the world’s best and brightest. But nearly 2 million immigrants with college degrees are relegated to low-skilled jobs or can’t find work. The result of this brain waste? More than $39 billion in forgone wages annually and $10 billion in resulting lost tax payments, according to Migration Policy Institute (MPI) researchers. One in four of the 7.6 million college-educated immigrants in the United States during the 2009-2013 period experienced skill underutilization, that is they were either working in low-skilled jobs or were unemployed. The findings are included in a new report, Untapped Talent: The Costs of Brain Waste among Highly Skilled Immigrants in the United States, issued today by MPI, New American Economy and World Education Services. The report offers the first-ever economic costs of underemployment for the college-educated immigrant population in the United States. (The report is accompanied by fact sheets for seven states: California, Florida, Michigan, New York, Ohio, Texas and Washington State.) “Our research makes clear that low-skilled employment among highly skilled immigrants—the old, familiar story of doctors driving taxicabs—carries substantial economic costs,” said MPI President Michael Fix, an author of the report. “And these costs accrue not just to the immigrants and their families, but to the broader U.S. economy.” This brain waste should be of particular concern given that the highly skilled comprise an ever greater share of new arrivals. Almost half of immigrant adults entering the United States between 2011-2015 held a bachelor’s degree or more, the researchers found. That’s a sharp rise from the 27 percent share in 1990 and the 33 percent share arriving before the 2007-2009 recession. Drawing upon analysis of Census Bureau data, the MPI researchers developed estimates of brain waste for the United States and 15 states with the largest numbers of immigrants experiencing skill underutilization. The report also estimates the economic penalty that immigrant underemployment imposes, both in forgone earnings and tax payments. While these college-educated immigrants experiencing brain waste lost out on $39.4 billion in wages annually, the report finds they would have been able to narrow the gap to $28.5 billion if employed in higher-skilled work at the same rate as U.S.-born college graduates. Among other key findings:
- Employment of highly skilled immigrants at their skill level would have generated $10.2 billion in additional tax payments annually, with $7.2 billion going into federal coffers and $3 billion to state and local governments.
- Brain waste is particularly acute for immigrants educated outside the United States. Twenty-nine percent of immigrants who earned their college degrees abroad experienced brain waste, compared to 21 percent of immigrants educated in the United States.
- Immigration status plays a role in brain waste. Nineteen percent of U.S.-educated immigrants who became U.S. citizens experienced skill underutilization, compared to 24 percent of green-card holders and 34 percent of unauthorized immigrants.
- Immigrant skill underutilization varies by state. Among the states examined, Florida had the highest rate of immigrant brain waste (32 percent), while Michigan and Ohio had the lowest (20-21 percent).
Highly skilled immigrants face a range of barriers to employment at their skill levels, among them: difficulty getting foreign credentials recognized, unfamiliarity with the U.S. labor market, employers’ negative perceptions of the quality of foreign education and work experience, limited English skills and a shortage of education programs to bridge skills deficits. Many of these barriers could be addressed or at least alleviated through targeted programs and policies. The report spotlights initiatives undertaken by non-profits and some states, including Michigan and Ohio. The report notes that immigrants are not alone in experiencing brain waste. Eighteen percent of U.S.-born college graduates, nearly 7 million people, also cannot find work at their skill level.
Reuters reports on a "forgotten shipwreck" on the high seas. At around 2 a.m. on Saturday, April 9, 2016, a large blue fishing boat carrying hundreds of African migrants and their children capsized just off the coast of Egypt. Some drowned quickly. Others thrashed in the water, yelling for help in Arabic, Somali or Afan Oromo. The few with lifejackets blew whistles that pierced through the shrieks.
A solitary electric torch probed the moonless darkness. It came from a smaller boat that was circling, tantalizingly close. The men on that boat, the people-smugglers who had brought their human cargo to this point, were searching only for their comrades. They ignored the screams of the migrants and beat some back into the water.
Just 10 migrants managed to scramble up into the smaller boat to join the smugglers and 27 other migrants already aboard.
Around 500 adults and children died on the voyage, according to survivor and official estimates, the largest loss of life in the Mediterranean in 2016. Among the dead were an estimated 190 Somalis, around 150 Ethiopians, 80 Egyptians, and some 85 people from Sudan, Syria and other countries. Thirty-seven migrants survived.
Awale Sandhool, a 23-year-old who worked at a radio station in Mogadishu and had fled death threats at home, was among the few who swam to safety. Amid the chaos of the sinking, he said, his childhood friend Bilal Milyare had shouted to him from the water before drowning: “Could we not have been saved?” Until now, no one has tried to answer that question.
A Reuters investigation in collaboration with BBC Newsnight has found that in the seven months since the mass drowning, no official body, national or multinational, has held anyone to account for the deaths or even opened an inquiry into the shipwreck.
Immigration Article of the Day: The Impact of Externalization of Migration Controls on the Rights of Asylum Seekers and Other Migrants by Bill Frelick, Ian M. Kysel, & Jennifer Podkul
The Impact of Externalization of Migration Controls on the Rights of Asylum Seekers and Other Migrants by Bill Frelick (Human Rights Watch), Ian M. Kysel (ACLU of Southern California), & Jennifer Podkul (Kids in Need of Defense)
Wars, conflict, and persecution have forced more people to flee their homes and seek refuge and safety elsewhere than at any time since the end of World War II. As displaced people and other migrants increasingly move out of the conflict-ridden and less developed regions of their displacement and into relatively rich and stable regions of the world, the countries of destination are increasingly working to contain and even stem the migration flow before it reaches their shores. This paper seeks to develop a working definition of the externalization of migration controls and how such externalization of the border implicates the human rights of migrants, and asylum seekers in particular. Although the majority of those migrants seeking legal protections stay in countries neighboring their own, hundreds of thousands continue their journeys in search of protection and stability in more distant states, including in the European Union, the United States, and Australia. In response to the significant increase in asylum seekers arriving at their borders, all three entities have significantly increased deterrence measures with the hopes of keeping new arrivals from entering. This paper will thus highlight a number of the most troubling externalization strategies used by the European Union, the United States, and Australia. Finally, because rights-threatening externalization law, policies, and practices implicate the international legal responsibility of the destination states pursuing them, the paper will conclude by presenting recommendations that could strengthen protection of human rights in the context of state actions seeking to manage migration.
Tuesday, December 6, 2016
Photo from Raices
Following the recent order preventing the Texas Department of Family and Protective Services from licensing the immigration detention centers at Dilley and Karnes as child-care facilities, some 460 women and children have been released from immigration detention.
As HuffPo reports, RAICES, a San Antonio nonprofit is receiving many of these families. Because RAICES doesn't have the capacity to house all of those released, many are finding shelter in a local church and convent until they can be reunited with their families in the US.
RAICES is looking for in kind donations to help these families, including books, crayons, new child-size underwear, and hooded sweatshirts of all sizes. In-kind donations can be dropped off at:
Representative Diego Bernal's Office: 126 W Rector Street, Suite 114,
San Antonio Councilwoman Shirley Gonzales Offices: 200 N. Park, San Antonio and 803 Castroville Rd, Suite 218
San Antonio Senator Jose Menendez Office: 4522 Fredericksburg Road, A-3, San Antonio
Spanish-speaking volunteers would be most welcome, as would monetary donations, which can be made at this link.
The Supreme Court has announced that it will hear oral argument in Lynch v. Dimaya on January 17, 2017. The issue in the case is whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act's provisions governing an immigrant's removal from the United States, is unconstitutionally vague. The Ninth Circuit, in an opinion by Stephen Reinhardt (joined by judge Kim McLane Wardlaw with a dissent by Judge Consuelo Callahan), held that it was, relying on Johnson v. United States (2015).. The court specifically held that a statutory reference to a "crime of violence" was unconstitutionally vague.
ImmigrationProf blogger Jennifer Koh previously blogged an analysis of the Ninth Circuit ruling. In addition, here is a summary of the ruling. Jennifer Koh has written an article on this issue, forthcoming in the Wisconsin Law Review.
Immigration Article of the Day: Misery Acquaints a Man with Strange Bedfellows: A Plan to Pass Immigration Reform by Alexander Thomas Holtzman
Misery Acquaints a Man with Strange Bedfellows: A Plan to Pass Immigration Reform by Alexander Thomas Holtzman, Ohio State University (OSU) - Michael E. Moritz College of Law; Ohio State University (OSU) - John Glenn School of Public Affairs November 7, 2016 Chicana/o Latina/o Law Review, Vol. 34(1), 2016
Abstract: Immigration reform is one of the critical civil rights issues of our time. The purpose of this work is to serve as a starting place and strategic map for building a coalition capable of successfully lobbying for the passage of historic comprehensive immigration reform (CIR) legislation. In order to build such a coalition, individuals and organizations with competing interests and ideologies must unite, work in collaboration, and act in strategic concert. This article describes how stakeholders can build such a coalition. To pass CIR, a coalition of strange bedfellows should be built based on Chai Feldblum’s “Six Circles Theory of Advocacy.” Feldblum developed her thesis and expertise as the legislative lawyer on the successful campaign to pass the Americans with Disabilities Act of 1990 (ADA). Her scholarship can teach CIR advocates how to build a coalition to pass significant civil rights legislation. This article calls for stakeholders to build a strategic coalition based on Feldblum’s “Six Circles Theory” in order to pass comprehensive immigration reform.