Saturday, August 2, 2008

Old Criminal Convictions Haunt Immigrants

Since the 1996 immigration reforms, the United States has been enforcing record numbers of immigrants every year, many based on criminal convictions.  For a thoughtful discussion of the harshness of many of these deportations, see Bill Ong Hing, Deporting Our Souls (2006).  My colleague Jennifer Chacón also has written thoughtfully on this topic.

Jesus Collado, a lawful permanent resident who faced exclusion, detention, and deportation for a decades old (and relatively minor) criminal conviction, is the poster child for the harshness of the 1996 reforms.  "Criminal aliens," whose convictions range from relatively minor crimes (e.g., possession of a small amount of marajuana) to truly major crimes (e.g., murder), often face mandatory detention and have had to fight to ensure judicial review of their removals.  All of this has made the deportation defense work of immigration attorneys and immigration clinics much more difficult than it previously had been. 

The Washington Post has an article today that reminds us of the harsh treatment of "criminal aliens" under current U.S. immigration law:  "Lawyers and activists [report] a rising number of legal immigrants with relatively old and minor criminal records to be snagged in the federal government's stepped-up efforts to deport those whom authorities refer to as `criminal aliens.'"


August 2, 2008 | Permalink | Comments (2) | TrackBack (0)

Iraqi Refugee Admissions Update

The Iraq invasion continues to result in Iraqi refugees fleeing to all parts of the world, including the United States. Matthew Lee reports for the Associated Press:

The United States allowed in more than 2,300 Iraqi refugees last month, setting a record and putting the Bush administration on pace to surpass its goal of accepting 12,000 by the end of September.

The State Department said Friday that 2,352 Iraqi refugees had arrived in the country in July, shattering the previous monthly record of 1,721 from June.

July's figure brings to 8,815 the number of Iraqi refugees to have been admitted in the current budget year that ends Sept. 30, giving the administration two months to take in 3,185 to hit the target.

"These are good results and we feel we're on track to reach the 12,000 goal," said James Foley, the department's coordinator for Iraqi refugee issues.

Officials said they expected to admit more than 1,600 Iraqi refugees in both August and September, easily reaching and likely surpassing the mark.

The 12,000 target is still far lower than the number admitted by other countries and only a small slice of the some 2 million Iraqis who have fled to neighboring countries since the U.S.-led invasion in March 2003. Sweden, for example, has granted asylum to about 40,000 since 2003. Click here for the rest of the story.


August 2, 2008 | Permalink | Comments (3) | TrackBack (0)

The Border Wall -- A Film

Wayne Ewing originally did this filming for Bill Moyer.  Some of you might remember that it was supposed to air in June...but Moyer, for some unknown reason, dropped it.

Wayne's web site just went live. Check out the five minute video preview.


August 2, 2008 | Permalink | Comments (0) | TrackBack (0)

Friday, August 1, 2008

Family Immigration Legislation Moves Forward

Recapture Bill Moves Forward

Washington, D.C. – The Asian American Justice Center (AAJC) today applauded the passage of H.R. 5882 by a vote of 8 to 1 in the United States House Judiciary Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law. Co-sponsored by Representatives Zoe Lofgren (D-CA) and Jim Sensenbrenner (R-WI), the legislation would reclaim old and unused visas from previous fiscal years and place them into the pool of usable visas. In addition, it would create a “roll over” mechanism that would ensure that unused visas in subsequent fiscal years would not be lost.

“This is a victory for family immigration reform advocates and lawmakers who support legal immigration,” said Karen. K. Narasaki, president and executive director of AAJC. “We thank the members of Congress who attended the markup and voted for the legislation. They are champions for family unity and the thousands of individuals who have been waiting for years to join their spouses and children.”

Some subcommittee members introduced anti-immigrant amendments and provisions that would have gutted the legislation. For example, Representative Steve King (R-IA) introduced one amendment that would have eliminated the fourth family preference category that allows United States citizens to sponsor siblings. He also introduced another amendment that would have allowed only individuals under the age of 40 with a college degree to immigrate to the United States. Representative King was the only subcommittee member who voted against the recapture provision; none of the other minority members of the subcommittee were in attendance.

“In the absence of complete and common-sense immigration reform, lawmakers and policymakers who want to stop immigration entirely are not balancing the needs of future flow, immense family backlogs, and undocumented residents,” said Tuyet G. Duong, senior staff attorney of AAJC. “Today’s victory shows that America can come together and move forward with balanced solutions for our broken immigration system.”


August 1, 2008 | Permalink | Comments (0) | TrackBack (0)

Immigration Songs!!!!!

Rathod Jayesh Rathod (American) shared with the ImmProf listserve a list of "Immigration Songs" that he compiled when teaching the Immigration Law survey course. He incorporated these songs into class, either by playing the song at the beginning of class (as students got seated) to introduce a topic, or as part of an in-class exercise. Download immigration_songs.pdf

Never one to be outdone, Lory Rosenberg shared her Change The Law - LDR Songbook.  Download ChangetheLawSongs2005update.pdf


August 1, 2008 | Permalink | Comments (5) | TrackBack (0)

The Oscar De La Hoya Family: A Classic Immigrant Story

51gfa2msn4l__sl500_bo2204203200_pis Boxer and Promoter Oscar De La Hoya's autobiography American Son will no doubt be of interest to the Golden Boy's fans as well as to boxing fans generally.  But his family's story is a classic immigrant story, with both his parents immigrating for a better life in the United States and settling in East Los Angeles.  De La Hoya tells a very funny story about returning from a trip to Mexico to visit relatives when his newly naturalized mother, who spoke English as a second language, told the border officers that she was an "American Market" when she meant to say "American citizen." (p. 56).

For any who might worry, De La Hoya, born a U.S. citizen, makes it clear that his parents came to the United States lawfully.  The book is revealing about the very modest circumstances in which the so-called Golden Boy grew up, the various identity issues ("Straddling the Border" pp. 135-41) that he faced as a Mexican-American in the United States (which hit a cresecendo pitch with his fights over Mexican boxing icon Julio Cesar Chavez), and De La Hoya's enlightened views about immigration, immigrants, and immigration reform (no doubt influenced by his family's exeriences and his own growing up on L.A.'s Eastside).


August 1, 2008 | Permalink | Comments (1) | TrackBack (0)

La Bamba Obama

As we all know, the Latino vote will be critical in the presidential election.  Some of us have tried to help in creative ways.

Daniel Reilly of CBS News reports on a new effort by the Obama campaign:

Sen. Barack Obama’s presidential campaign launched a massive $20 million effort to attract Latino voters on Tuesday, hoping to erase the inroads the Republican Party has made with the key demographic group in the last two presidential elections.

Frank Sanchez, the chairman of the Obama for America National Hispanic Leadership Council, said the unprecedented effort will focus on paid advertising, online organizing, increased staffing in Latino communities and organizing surrogates to hit the campaign trail.

Sanchez said efforts will be particularly focused in the key swing states of Nevada, Florida, New Mexico and Colorado, where Latino voters could make up the margin of victory.

Obama advisers launched the effort at the Democratic National Committee along with Colorado Democratic Sen. Ken Salazar and a handful of other members of the Congressional Hispanic Caucus.

One of the fastest growing demographic groups in the country, Latinos are being courted aggressively by both campaigns.

According to a new poll conducted by The Pew Hispanic Center, Obama leads McCain among Latinos 66 percent to McCain's 23 percent.


August 1, 2008 | Permalink | Comments (2) | TrackBack (0)

New Immigration Articles from SSRN

Here are some new immigration articles posted on the Social Science Research Network (

"Collateral Consequences of Criminal Convictions to Noncitizens" Maryland Bar Journal, Vol. 41, No. 4, pp. 40-45, July/August 2008 U of Maryland Legal Studies Research Paper No. 2008-26 FERNANDO NUNEZ, University of Maryland - School of Law:  The criminal defense attorney's intuitive pursuit of freedom for a client is almost always the best approach in the representation of individuals charged with a crime. When representing noncitizens, however, the prudent practice is to deemphasize immediate freedom and instead to focus on the collateral consequences the conviction will have on the noncitizen's immigration status.

"The Citizenship Paradox in a Transnational Age (A Review of Hiroshi Motomura's 'Americans in Waiting')" Michigan Law Review, Vol. 106, No. 1111, 2008 NYU Law School, Public Law Research Paper No. 08-19 CRISTINA RODRIGUEZ, New York University - School of Law:  In "Americans in Waiting," Hiroshi Motomura traces the multiple ways in which law and policy have framed the relationship between immigrants and the body politic. He ultimately calls on Americans to honor the very best of our traditions by treating lawful immigrants as American citizens in waiting, presumptively entitled to all the prerogatives of membership. His vision, while compelling, comes up against a difficult problem. In a globalizing world marked by large-scale migration and transnational forms of association, we do indeed still need robust conceptions of national, geographically anchored citizenship to promote social cooperation. But the political institutions, such as citizenship, that support strong frameworks of belonging have shown themselves unable to fully absorb the influx of migrants with plural loyalties. The public opinion on which these frameworks depend often resists the inclusion of too many new members. In both the United States and Europe, we see evidence of an admissions-status tradeoff, or the dynamic whereby the acceptance of large numbers of immigrants is accompanied by parsimonious treatment of those immigrants, including through the withholding of legal status. The global phenomena of large-scale migration and transnational loyalties fragment national political communities, making it more difficult for the very institutions that traditionally have promote social cohesion to respond effectively to that fragmentation, rendering realization of ideals like Motomura's elusive. After developing this argument, I conclude by offering some thoughts on how to broach these tensions in a way that is true to Motomura's vision of immigrants as Americans in waiting, primarily by calling for a reinvigoration of local forms of territorial belonging.  [I HAVE READ BOTH THIS REVIEW AND PROFESSOR MOTOMURA'S BOOK AND RECOMMEND BOTH. -- KJ].

"Challenging Managed Temporary Labor Migration as a Model for Rights and Development for Labor-Sending Countries" New York University Journal of International Law and Politics (JILP), Vol. 40, No. 2, 2008 XINYING CHI, New York University - School of Law:  As global labor mobility increases, international organizations and States have intensified efforts to find ways to manage migration in the best interests of States and migrants. In recent years, a consensus has emerged among international organizations involved in labor migration that properly managed temporary labor migration is an effective way of balancing the interests of sending countries, receiving countries, and migrants themselves. In this Note, I contend that this emerging paradigm is unlikely to achieve both its touted goals: promoting long term economic development for sending countries and protecting migrant workers' rights. Not only do many sending countries lack the institutional capacity to properly design and implement migration and development policies, but also the very assumptions underlying the paradigm are flawed. I conclude that international organizations and migration experts should be cautious about promoting temporary labor migration to sending countries.


August 1, 2008 | Permalink | Comments (1) | TrackBack (0)

Thursday, July 31, 2008

Feel Good Story of the Day: Iwo Jima Hero Awarded Citizenship

57mike Flage It has been more than 63 years since Sgt. Michael Strank helped raise the American flag during World War II on the infamous Mount Suribachi. The U.S. Citizenship and Immigration Services honored the fallen hero by presenting his youngest sister, Mary Pero, with a certificate of citizenship at the Marine Corps War Memorial, the monument that immortalizes five Marines and a sailor captured in thec Pulitzer-winning photograph taken Feb. 23, 1945, during the Battle of Iwo Jima.

Michael Strank was killed by artillery fire days after the photo was taken.

Strank was born in Jarabenia, Czechoslovakia, in 1919, and immigrated to the U.S. in 1922 with his mother. In 1935, his father became a naturalized citizen, giving his children automatic citizenship. Strank’s citizenship was never called into question. But recently, a Marine security guard, Gunnery Sgt. Matt Blais, began researching Strank’s descent while working at the U.S. Embassy in Bratislava, Slovakia, and discovered Strank was not a natural-born U. S. citizen. Blais petitioned USCIS for formal citizenship on behalf of Strank. “He is part of a long and distinguished line of American immigrants that have served our country," the Dirctor of Citizenship and Immigartion services said.

Strank fought in three separate World War II campaigns on the Pacific front, including battles at Pavuvu and Bougainville, and won the Bronze Star with V for valor.

For more on this story, click here.


July 31, 2008 | Permalink | Comments (0) | TrackBack (0)

NELP Compiles Independent Contractor Legislation Efforts

The National Employment Law Project has compiled a summary of independent contractor reforms across the country.  Independent contractor relationships increasingly define work arrangements for immigrants, especially in low-wage sectors.  From NELP:

"This year’s legislative sessions saw an uptick in activity designed to rein in independent contractor misclassification, including executive orders, cost studies, and legislation.  During the 2007-2008 legislative sessions, at least five states enacted independent contractor reform statutes, and legislators introduced bills in more than 20 states.  Three bills were introduced in Congress.  Growing attention to independent contractor misclassification is thanks in large part to the efforts of organized labor and worker advocates at the state level.  NELP has been actively engaged in providing technical assistance to many of the state activists.   Click here  to review Summary of Independent Contractor Reforms:  State and Federal Activity, NELP's latest independent contractor update."


July 31, 2008 | Permalink | Comments (4) | TrackBack (0)

New Book on Undocumented Immigrants and Higher Education

New from LFB Scholarly Publishing: Undocumented Immigrants and Higher Education: ¡Sí se puede! by Alejandra Rincón, Ph.D. , The issue of higher education for undocumented high school graduates has increasingly gained attention since 2001 as ten states have passed laws to allow these students access to college at in-state tuition rates. This book is about the long struggle by education advocates and immigrant students to broaden access to public colleges and universities nationwide. Specifically, it chronicles efforts to change discriminatory laws and regulations controlling access to higher education. By offering a context and an accurate presentation of the origins and implications of in-state tuition laws, readers can better understand this modern struggle for equal application of the law and access to higher education in the United States. As immigrants face increasing attacks by draconian governmental legislation and enforcement, they are also standing up for human and civil rights, and responding: ¡Sí se puede! (It can be done!). Please join us and help to get the word out to colleagues, classmates, coworkers and family, about this wonderful new book. From the author This book documents the history of the struggle to secure immigrant students' access to higher education. An accurate understanding of this movement for equal rights is vital for academics, advocates, policymakers, and for others seeking to understand and chronicle this aspect of life for the undocumented and the educational system in the United States.

Want to learn more before you buy the book? Visit:


July 31, 2008 | Permalink | Comments (1) | TrackBack (0)

IPC Refutes CIS Claim that Drop in Undocumented Population is Due to Stepped Up Immigration Enforcement

The Center for Immigration Studies, a Washington, DC group that promotes more restrictive immigration laws and policies, recently concluded that drops in the undocumented population in the United States is attributable to stepped up immigration enforcement.  Below is CIS's announcements and major conclusion of the study.  The Immigration Policy Center, a division of the American Immigration Law Foundation which promotes more humane immigration laws and policies, questions the methodology and, therefore, the conclusions of the study.  That response is also provided below.


Ilegal Immigrant Population Dropping

New Report Estimates 1.3 Million Decline Since Last Summer
WASHINGTON (July 30, 2008) — A new analysis of monthly Census Bureau data shows a significant decline in the number of less-educated Hispanic immigrants. The report is the first to show systematic evidence that the illegal population is decreasing. There is good evidence that recent immigration enforcement efforts are a key factor causing the decline.

The report, entitled “Homeward Bound: Recent Immigration Enforcement and the Decline in the Illegal Alien Population,” is available at the Center for Immigration Studies web site

Among the findings:

• Our best estimate is that the illegal immigrant population has declined by 11 percent through May of this year after hitting a peak in August 2007.

• The implied decline in the illegal population is 1.3 million since last summer, from 12.5 in August 2007 to 11.2 million in May 2008.

• The estimated decline of the illegal population is at least 7 times larger than the number of illegal aliens removed by the government in the last 10 months, so most of the decline is due to illegal immigrants leaving the country on their own.

• One indication that stepped-up enforcement is responsible for the decline is that only the illegal immigrant population seems to be effected; the legal immigrant population continues to grow.

• Another indication enforcement is causing the decline is that the illegal immigrant population began falling before there was a significant rise in their unemployment rate.

• The importance of enforcement is also suggested by the fact that the current decline is already significantly larger than the decline during the last recession.

• While the decline began before unemployment rose, the evidence indicates that unemployment has increased among illegal immigrants, so the economic slowdown is likely to be at least partly responsible for the decline in the number of illegal immigrants.

• There is good evidence that the illegal population rose last summer while Congress was considering legalizing illegal immigrants. When that legislation failed to pass, the illegal population began to fall almost immediately.

Discussion: These findings are consistent with anecdotal evidence. They are also consistent with data showing a fall off in remittances sent home by immigrants. And they are in line with a drop in border apprehensions. While the evidence indicates that stepped-up immigration enforcement has played an important role in causing the decline, the economic downturn is also likely to be encouraging illegal immigrants to return home. The decline in the illegal population, whatever the cause, seems to directly challenge the argument that illegal aliens are so firmly attached to their lives in this country that it is not possible to induce many of them to return home. If the current trend were sustained, it could cut the illegal population in half within five years.

There is no way to know whether the current trend will continue. Future enforcement efforts as well as the state of the economy will likely determine if the number of illegal immigrants continues to drop. Both presidential candidates have recently stated their strong commitment to legalizing those in the country illegally. Pronouncements of this kind may have consequences. When Congress was considering legalizing illegal immigrants last summer, there is evidence that the illegal population grew. When that legislation failed to pass, the illegal population began to decline rapidly. It may be that the repeated promises of legalization by both candidates in recent weeks will encourage more illegal immigrants to enter the country or encourage those already in the country, who might otherwise leave, to stay in the hopes of being awarded legal status.

Methodology: This study uses monthly data from the Current Population Survey collected by the Census Bureau. The Department of Homeland Security, the former INS and other outside research organizations have used Census Bureau data to estimate the illegal immigrant population. We examine trends in the number of foreign-born less-educated young Hispanics. Prior research indicates that 80 percent of these individuals are in the country illegally. We estimate the range for the decline in the illegal immigrant population is 9 to 14 percent, with 11 percent as the most likely value.

# # #

Contact: Steven Camarota

(202) 466-8185 •

Immigration Policy Center (IPC)
...providing factual information about immigration and immigrants in the United States.

For Immediate Release

Attrition Through Recession:
New CIS Report Suggests Spend More, Say Nothing,
and Hope for a Recession

July 30, 2008                                                                                             

Washington, DC--A new report released by the Center for Immigration Studies (CIS) on Wednesday, July 30th, claims that stepped-up enforcement measures account for much of the recent decline in the undocumented immigrant population. The following is a statement by Angela Kelley, Director of the Immigration Policy Center, an immigration research organization in Washington.

"CIS implies that the illegal immigrant population could drop to half of what it is now within the next five years if only presidential candidates keep silent about the details of comprehensive immigration reform, taxpayers continue to pour billions of dollars into enforcement, and the U.S. economic recession persists-according to CIS, reducing illegal immigration apparently comes with a cruel price tag.

Most researchers agree that undocumented immigration to the United States is driven largely by economics.  Yet, in a new report entitled Homeward Bound: Recent Immigration Enforcement and the Decline in the Illegal Alien Population, CIS dubiously claims that undocumented immigrants decide where to live and work based more on the politics of immigration enforcement than the economics of their own survival.  CIS concludes that the recent decline in the "likely illegal population" (which it defines as less-educated, foreign-born Hispanics age 18 to 40) is largely the result of new immigration-enforcement efforts rather than the downturn of the U.S. economy, including job losses in the construction sector that had been absorbing many less-skilled Hispanic immigrants. 

The persuasiveness of CIS' argument is undermined not only by an absence of hard data, but by the faulty logic and contradictory statements of the report itself.  The authors report confidently about a population that is nearly impossible to accurately measure.  They admit they did not include data about any population other than Hispanics.  They provide no evidence for their assertion that the immigration debate in Congress last summer spurred an increase in undocumented immigration. 

CIS provides no real solutions to the nation's immigration problems.  They insult thoughtful Americans when they seemingly hope for continued unemployment and recession, promote harsh enforcement measures that separate families and destroy communities, and suggest that politicians should not even talk about real solutions.  By requiring undocumented immigrants to come forward, legalize their status, and learn English, we would strengthen the rule of law and turn undocumented immigrants into taxpayers.  The U.S. must enact a practical, fair, and reasonable solution that includes smart enforcement measures."

For more information contact Andrea Nill, 202-507-7520 or email

# # #

July 31, 2008 | Permalink | Comments (6) | TrackBack (0)

BIA: Membership in a criminal gang cannot constitute membership in a particular social group

The BIA today issued an Interim Decision in Matter of E-A-G-, Interim Decision #3618, 24 I&N Dec. 591 (BIA 2008).  The Board ruled that:

(1) The respondent, a young Honduran male, failed to establish that he was a member of a particular social group of “persons resistant to gang membership,” as the evidence failed to establish that members of Honduran society, or even gang members themselves, would perceive those opposed to gang membership as members of a social group.

(2) Because membership in a criminal gang cannot constitute membership in a particular social group, the respondent could not establish that he was a member of a particular social group of “young persons who are perceived to be affiliated with gangs” based on the incorrect perception by others that he is such a gang member.

Here is the decision.   Download gang.pdf


July 31, 2008 | Permalink | Comments (3) | TrackBack (0)

List of Law School Immigration Law Clinics

Shoba Sivaprasad Wadhia (Director, Center for Immigrants' Rights and Assistant Clinical Professor Penn State Dickinson School of Law) compiled a list of information about immigration law clinics based on responses to the ImmProf listserve. Here is a draft of the list. The list includes the formal name of the clinic (when provided); duration (semester, one year, etc.), and total credits awarded. Download clinic_list.xls

The list includes schools whose faculty provided the information about their clinics on the Immprof listserve.


July 31, 2008 | Permalink | Comments (4) | TrackBack (0)

Ban on HIV-Positive Nonimmigrants and Immigrants Lifted

Today President Bush acted to end the statutory ban on entry to the U.S. by people with HIV.  Until now, only HIV was singled out in the immigration law for exclusion.  In signing the President's Emergency Plan for AIDS Relief (PEPFAR), Bush repealed the statutory ban on HIV-positive tourists and immigrants, and restored jurisdiction to the Department of Health and Human Services (HHS) to determine whether HIV is a "communicable disease of public health significance." This podcast interview about the lift of the HIV/AIDS immigration ban might be of interest to our readers.  It features a timely conversation with attorney Victoria Neilson, Legal Director of Immigration Equality. The conversation begins by focusing on recent developments to lift the immigration ban that bars HIV+ individuals from entering the U.S.

The President's signing of the bill is a significant and hopeful first step in a two-step process to lift the ban.  The next step is to have HIV/AIDS removed from the Department of Health and Human Services list of "communicable diseases of public health significance."

You can follow the developments at the Immigration Equality blog.

Thanks to Meredith Miller (Touro) for the tip!


July 31, 2008 | Permalink | Comments (0) | TrackBack (0)

CIS Sensationalism Once Again: Our Study (which We funded With Restrictionist Dollars) Shows We Are Right

There are many news stories ( here is another) about the restrictionist group, the Center for Immigration Studies, latest report purporting to show that the undocumented population is down by as much as 11 percent.  (At some point, I will blog about how and why the Center should not be treated by journalists as a nonpartisan research group when in fact it is an unabashedly partisan restrictionist group that, to my knowledge, has never released a "report" with conclusions that are inconsistent with its restrictionist positions; for these reasons, respectable academics do not rely in CIS "research" or "reports" in serious scholarship -- except to criticize it in some way).  Respected demographer Jeffrey Passel, who is quoted in many of the stories, has questioned the methodology of the study and the magnitude of the drop in the undocumented population.

The advocates at the Center for Immigration Studies, which supports the increased immmigration raids -- including Postville, I presume --and enforcement and state and local immigration measures, claim that its study shows they were right.  But, as we all know, the U.S. economy has been in the doldrums, if not a recession, for quite a while.  And, given that undocumented immigration is largely job driven, we would expect less migration -- and more return migration -- with a faltering economy with fewer jobs and a growing unemployment rate.  (See this Immigration Policy Center report making similar arguments.).  So, we should be careful before we let the restrictionists declare victory, rub the noses of immigrant advocates in it, and demand more enforcement.


July 31, 2008 | Permalink | Comments (4) | TrackBack (0)

The Impact (or Lack Therof) of California's Same Sex Marriage Case on Gay Men and Lesbians

Jcfpic J Craig Fong, one of the managing partners of Fong & Chun, LLP is a Los Angeles immigration law firm, wrote this note about how the same-sex marriage case in California has affected (or failed to affect) the lives of gay men and lesbian immigrants.


As has been mentioned by me and others in response to California same-sex marriage questions, a same-sex marriage in California (or from any other jurisdiction, for that matter) is not recognized for purposes of Federal law or Federal benefits, including immigration benefits. Not only does this include I-130 Family Petitions for alien spouses, but I suspect it also includes spouse-as-dependent on an I-140 or some other application, recognition of the relationship for qualifying relatives in a waiver of ground of inadmissibility, or in a cancellation of removal context. The statutory culprit here is the Federal Defense of Marriage Act. 1 USCA §7. UNITING AMERICAN FAMILIES ACT (UAFA). The UAFA (H.R. 2221) would permit the recognition for immigration purposes of domestic partners who can demonstrate being in a committed same-sex relationship for a specified period of time -- two years is the number typically suggested. This bill is regularly introduced in Congress. Its former incarnation was the Permanent Partners Immigration Act (PPIA). It has never yet left committee. Many believe that a change in party in power in the White House and stronger Democratic majorities in the Congress could see this enacted. It is not yet law, however.


This issue is not the troublesome issue it was at the beginning of the Bush-41 Administration. In essence, USCIS will examine the marriage from the point of view of the post-operative condition of the party at issue. As long as the parties to the marriage are, as a result of gender reassignment surgery, of OPPOSITE physical configurations (that is, male-female), USCIS will view the marriage as an opposite-sex marriage, and immigration benefits can be granted.


I must here part company with some suggestions that I-130 Family Petitions should be filed now, letting them percolate upwards through the appellate system, so that eventually an Equal Protection argument can be made the the Supreme Court of the United States. I strongly disagree with this strategem. First, please remember that Federal courts give great deference to Congress' plenary power over the issue of immigration. Harisiades v. Shaughnessy, 342 U.S. 580, 588-589, 72 S.Ct. 512, 96 L.Ed. 586 (1952) Although there might be some sort of due process argument, and subject to constitutional limitation on the exercise of that plenary power, The Chinese Exclusion Case, 130 U.S. 581, 604, 9 S.Ct. 623, 32 L.Ed. 1068 (1889), Congress could ask all prospective immigrants to stand on their heads and whistle The Stars and Stripes Forever at their green card interviews, and courts could sustain the requirement. So: the fact that the Congress has spoken, and that the Defense of Marriage Act includes denying green cards to same-sex marriages, the immigration context seems to me a bad place to start any challenge against DOMA. Second, the mavens of the gay and lesbian rights movement have regularly requested the bar to refrain from challenges to DOMA in the current legal/political environment. The more ideal place to challenge DOMA would be for taxation, inheritance, veterans' benefits, or social security benefits issues. These issues do not involve Congress' plenary immigration power and would thus yield us initial places where we will have already chipped DOMA's armour. If we make the first challenge an immigration challenge, not only is it likely we would lose, but it could set back any possible challenge to DOMA in other fields of law. Third: outside the realm of Federal Law, please remember that In re: Marriage Cases did something quite remarkable -- it made sexuality (that is, being gay or lesbian) a suspect class. This is arguably BIGGER than legalizing same-sex marriage. This rendition by the Supreme Court of California gives us incredible potential to challenge out-of-state marriages (say, from Massachusetts or from Canada) for recognition in California. It also provides interesting conflicts of law possibilities in jurisdictions outside California. It also raises an interesting question. Quaere: if Proposition 8 passes, and marriage is defined evermore in California as being a union of one man and one woman, what then happens when a gay or lesbian couple says, "why are straight people allowed the word 'marriage' while we gay men and lesbians must be satisfied with the phrase 'civil union?'" Does this run the ironic risk of having a California court deem that, if gay men and lesbians are a suspect class, and if only straight couples can have the word marriage, then NO ONE may use the word marriage, and henceforth, all unions in the state of California will be denominated "civil unions?" It is a through the looking-glass possibility, but interesting. Lastly, making queers a protected class means that even if the November ballot initiative passes, it creates a real open question whether same-sex marriages or unions will vanish from the California scene. How can marriage be denied to queers by an initiative if queers are a protected class? Where and what is the compelling state interest?

-- J Craig Fong Fong & Chun

July 31, 2008 | Permalink | Comments (2) | TrackBack (0)

The Laws Cops Can't Enforce

For at least the last two years, we have written often about state and local efforts to enforce the immigration laws and "crack down" on "illegal aliens."   George Gascón, a former assistant chief in the Los Angeles Police Department, and current chief of the police department in Mesa, Arizona has a thoughtful op/ed in the N.Y. Times today:

Immigration issues are tearing apart communities. Demagoguery and misinformation are shaping public opinion and in some cases public policy. In the absence of a clear federal policy on immigration, states and cities are enacting draconian and constitutionally questionable laws.

This patchwork of conflicting local immigration laws is creating an untenable situation for police officials who face demands to crack down on immigrants — demands that contradict policing practices that have led to significant declines in crime.

For police officials, refusing to carry out policies that may violate the Constitution can be career-threatening. Both sides in the immigration debate accuse police departments of misconduct in dealing with immigrants. In this politically charged environment, some chiefs are making decisions based on bad politics instead of sound policing. In many cases, police officers are making illegal arrests with the acquiescence and sometimes explicit approval of their superiors.

Click the link above to read more.


July 31, 2008 | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 30, 2008

Book Series: The New Americans

The New Americans, edited by Steven J. Gold and Ruben G. Rumbaut, explores recent immigration and related changes in American society from the perspectives of sociology, anthropology, education, political science, psychology, economics, history, and law. Together the books help us to understand how immigration is changing the United States. Each title is refereed by Professors Gold and Rumbaut.

The link above includes a list of books in the series.


July 30, 2008 | Permalink | Comments (0) | TrackBack (0)

Trafficking Victms Certification

New ORR State Letter Outlines Role of State Refugee Coordinator and Refugee Health Coordinator with Respect to Certified Trafficking Victims

The HHS Office of Refugee Resettlement (ORR) issues State Letters to State Refugee Coordinators and other interested parties whenever there is a change in ORR policy.  Recently, ORR issued a State Letter explaining that ORR will send State Refugee Coordinators and Refugee Health Coordinators notification of letters of Certification and Eligibility issued to victims of trafficking.  State Refugee Coordinators and Refugee Health Coordinators can play an integral role in facilitating access to the refugee benefits and services mentioned in the TVPA, and are valued ORR partners in assistance to trafficking victims.  You can read the State Letter on the ORR Web site at the following Internet address: 


July 30, 2008 | Permalink | Comments (0) | TrackBack (0)