May 28, 2011
LA Times Challenges Lamar Smith
Editorial from the LA Times:
Immigration: Lock 'em up
The latest issue to go before the House Immigration subcommittee involves the prolonged detention of immigrants, including asylum-seekers and legal permanent residents who commit crimes and are eligible to be deported.
At Tuesday's hearing, the debate focused on HR 1932, a measure that seeks to strip away key parts of a 2001 U.S. Supreme Court decision. In Zadvydas vs Davis, the court ruled that an immigrant awaiting deportation could not be held in detention longer than six months if "there is no significant likelihood of removal in the reasonably foreseeable future." Countries that have poor diplomatic relations with the United States, such as Cuba, generally will not take back deported immigrants.
The sponsor of the proposal is Rep. Lamar Smith (R-Texas), who chairs the House Judiciary Committee. A strong proponent of stricter immigration enforcement, he said the Supreme Court's ruling "required dangerous criminal immigrants to be released into our communities. All too often these criminal immigrants have gone on to commit more crimes."
Smith pointed to cases like that of a Cuban man who was released from immigration detention because he could not be returned to his homeland. The man later shot and killed a Florida police officer.
But the bill doesn't seem to acknowledge that current law provides limits on those who are considered a serious danger or a risk to national security.
The Patriot Act authorizes the Justice Department to detain those immigrants it believes to be a national security risk. And state and federal laws already provide for the detention of those who are especially dangerous or mentally ill under civil commitment statutes.
Moreover, Smith's proposal would go well beyond allowing the indefinite detention of immigrants convicted of violent crimes. It would extend to those with convictions such as writing a bad check or minor drug offenses. Under immigration law, aggravated felonies are broadly defined to include nonviolent crimes that carry a sentence of more than one year or if the monetary loss exceeds more than $10,000. read more...
An Earnings and Poverty Profile of US Immigrants
Stories of upward and inter-generational mobility have long animated the popular narrative describing how immigrants and their children integrate into US society, with poverty and access to gainful employment being powerful forces shaping how immigrants fare once they arrive in the United States. From national and state data we find some interesting facts: Nationally, immigrant men earn more than immigrant women, immigrant workers in West Virginia are more likely to earn $50,000 or more per year than the native born residing in the state, and California has the largest number of immigrants in poverty in the nation.
Explore the Migration Policy Institute's "Income and Poverty" fact sheets to learn more about the earnings of immigrant workers, variation in earnings by gender and region of birth, and the share of immigrant families living in poverty. Here is a peek at some of the updated national and state-level income and poverty stats for immigrants (and native born) in the United States:
* Nationwide, foreign-born workers earned less than native-born workers Among full-time, year-round workers, 35 percent of immigrants make less than $25,000 a year compared to 21 percent of native-born workers. On the opposite end of the earnings spectrum, 30 percent of immigrants earned $50,000 or more compared to 39 percent among the native born.
So where do immigrants fare best in relation to earnings in the United States? The states with the largest share of immigrants earning $50,000 or more per year are West Virginia (49 percent, compared to 28 percent of the native born), the District of Columbia (47 percent, compared to 59 percent of the native born), and Michigan (42 percent, compared to 38 percent of the native born).
* Immigrant men have higher median earnings than immigrant women Median earnings for immigrant men ($35,000) surpass those of immigrant women ($30,000) for those workers employed full-time, year-round. Among immigrants of both genders, naturalized citizens make more than noncitizens.
* Native born are less likely than foreign born to live in poverty Eighteen percent of immigrants live in poverty compared to 14 percent of the native born. Immigrants who are not US citizens are more than twice as likely to live in poverty (23 percent) than immigrants who have naturalized as US citizens (10 percent).
* Traditional immigrant-receiving states have the highest numbers of immigrants living in poverty: California (1.64 million), Texas (934,000), and New York (654,000). The top three states with the highest proportions of immigrants living in poverty are North Dakota (27 percent), Arkansas (27 percent), and New Mexico (26 percent).
* Sixteen percent of immigrant-headed families live in poverty The share of families living below the poverty threshold is even higher among immigrant-headed households with children under age 18 (22 percent).
The data are based on the US Census Bureau's 2009 American Community Survey (ACS) and the 2000 Decennial Census. To get started, go to the 2009 ACS/Census tool and select the state of your choosing (or click on the small map of the United States if you want national data).
From the Bookshelves: Immigration and Women Understanding the American Experience by Susan C. Pearce, Elizabeth J. Clifford and Reena Tandon
ABSTRACT: Through an examination of U.S. Census data and interviews with women across nationalities, we hear the poignant, humorous, hopeful, and defiant words of these women as they describe the often confusing terrain where they are starting new lives, creating architecture firms, building urban high-rises, caring for children, cleaning offices, producing creative works, and organizing for social change. Highlighting the gendered quality of the immigration process, Immigration and Women interrogates how human agency and societal structures interact within the intersecting social locations of gender and migration. The authors recommend changes for public policy to address the constraints these women face, insisting that new policy must be attentive to the diverse profile of today’s immigrating woman: she is both potentially vulnerable to exploitative conditions and forging new avenues of societal leadership.
May 27, 2011
California Steps Toward Opting Out of Secure Communities
Leslie Rojas reports for KPCC public radio:
The California Assembly passed a bill 43-22 yesterday that challenges the embattled federal immigration enforcement program known as Secure Communities. If the bill becomes law, it would allow the state to renegotiate its contract with the Homeland Security department, allowing local jurisdictions to opt out of what is now a mandatory fingerprint-sharing program. The state could choose to opt out altogether as well.
The bill, which now goes on to the senate, has been dubbed the Transparency and Responsibility Using State Tools Act, or “TRUST Act.”
The text of the California bill was posted on Multi-American late last month. Shortly afterward, the governor of Illinois announced plans to withdraw the state from the program. His decision was challenged by Department of Homeland Security officials, who said the department would not allow Illinois law enforcement to opt out of sharing information with immigration authorities.
If the California bill passes and the state moves to opt out of or modify its participation in Secure Communities, can it?
The program’s implementation in California was guided by a “memorandum of understanding,” or MOA, between Homeland Security and the California Department of Justice dated January 23, 2009. In the section titled “Modifications and Termination,” the document reads:
"This MOA may be modified at any time by mutual written consent of both parties.
"This MOA may remain in effect from the date of signing until it is terminated by either party. Either party, upon written or oral notice to the other party, may terminate the MOA at any time. A termination notice shall be delivered personally or by certified or registered mail and termination shall take effect 30 days after receipt of such notice."
The same section of the Homeland Security MOA with Illinois State Police, available online along with other Secure Communities documents, has the same wording.
Secure Communities allows for the fingerprints of people booked into local jails to be checked against the Homeland Security department’s immigration records. If there is a match, immigration authorities are notified. Some jurisdictions, including San Francisco, have tried to opt out without success. Critics say the program alienates immigrant communities and potentially impedes policing; immigrant advocates have pointed out that while the program is intended to find deportable criminals, it nets many people without criminal records, who are deported.
After Homeland Security’s reaction to the Illinois decision, The San Francisco Bay Guardian published a series of opinions on Secure Communities from legal scholars, among them Bill Ong Hing, a law professor at the University of San Francisco who is critical of the program. Hing noted the MOA language: “The implication of this provision is clear: the terms of the MOA are negotiable,” he said. Read more...
From the Bookshelves: Italian Immigrant Radical Culture The Idealism of the Sovversivi in the United States, 1890-1940 by Marcella Bencivenni
Maligned by modern media and often stereotyped, Italian Americans possess a vibrant, if largely forgotten, radical past. In Italian Immigrant Radical Culture, Marcella Bencivenni delves into the history of the sovversivi, a transnational generation of social rebels, and offers a fascinating portrait of their political struggle as well as their milieu, beliefs, and artistic creativity in the United States. As early as 1882, the sovversivi founded a socialist club in Brooklyn. Radical organizations then multiplied and spread across the country, from large urban cities to smaller industrial mining areas. By 1900, thirty official Italian sections of the Socialist Party along the East Coast and countless independent anarchist and revolutionary circles sprang up throughout the nation. Forming their own alternative press, institutions, and working class organizations, these groups created a vigorous movement and counterculture that constituted a significant part of the American Left until World War II. Italian Immigrant Radical Culture compellingly documents the wide spectrum of this oppositional culture and examines the many cultural and artistic forms it took, from newspapers to literature and poetry to theater and visual art. As the first cultural history of Italian American activism, it provides a richer understanding of the Italian immigrant experience while also deepening historical perceptions of radical politics and culture.
Immigration Article of the Day: Discovering “Immployment” Law: The Constitutionality of Subfederal Immigration Regulation at Work
Discovering “Immployment” Law: The Constitutionality of Subfederal Immigration Regulation at Work by Kate L. Griffith Cornell University - School of Industrial and Labor Relations 29 Yale Law & Policy Review 389 (2011). Abstract: Recently, there has been a federal-subfederal tug of war about whether subfederal governments can enact laws prohibiting the employment of undocumented immigrants and requiring employers to use an electronic employee-verification system without running afoul of the Constitution’s Supremacy Clause. This article reframes and sheds new light on this pressing constitutional question. To date, court battles and scholarship on this issue have exclusively focused on whether federal immigration law preempts these subfederal laws. In contrast, this article alters the analytical lens and exposes the preemptive effects of two federal employment statutes—Title VII of the Civil Rights Act and the Fair Labor Standards Act. It draws from legislative history, Supreme Court jurisprudence and scholarship to both demonstrate the need to consider federal employment law’s preemptive effects and to develop a new implied preemption framework. The analysis reveals that subfederal employer sanctions laws are unconstitutional because they conflict with fundamental federal employment policy goals to protect employees from employment discrimination and to encourage valid employee-initiated complaints for the benefit of employees more broadly. The article also elaborates why we should consider the joint preemptive effect of the two federal statutory regimes that subfederal employer sanctions laws implicate: federal immigration law and federal employment law. This hybrid "immployment-law" preemption framework shows that subfederal employer-sanctions laws may also conflict with Congress’s intent to promote federal employment policy as part of the Immigration Reform and Control Act.
This article is especially topical in light of the U.S. Supreme Court decision yesterday in Chamber of Commerce v. Whiting.
The White House Blog: What You Told Us About Immigration Reform
Cecilia Muñoz in the White House Press office, following the President's speech on immigration reform in El Paso, asked for feedback on this issue, specifically the following questions:
• Immigration and American Competitiveness: How can immigration reform support America’s competitiveness in a 21st century economy?
• Biggest Challenges to Reform: What do you think are the biggest challenges to reforming America's immigration system?
• Encouraging Bipartisan Debate: What are some ways you can get a discussion going in your communities to encourage a bipartisan debate and move this issue forward?
A team at the White House reviewed all of the comments and ideas and summarized and responded. Click the link above to see the responses.
Blueprint for Building a 21st Century Immigration System and Immigration Action Roundtables
With the President's recent speech in El Paso, Texas, the Administration kicked off the Blueprint for Building a 21st Century Immigration System and Immigration Action Roundtables across the country. President Obama is calling for a national conversation on immigration reform that builds a bipartisan consensus to fix our broken immigration system so it works for America's 21st century economy and security needs, but he can't do it alone. That is why he is asking you and other Americans, including business leaders, faith leaders, law enforcement leaders and all Americans that understand that we cannot continue to live with the broken system the way it is - to continue the conversation in your community by hosting a roundtable.
Former Attorney General Alberto Gonzales: "I am disappointed that I didn't do things differently"
The BLT Blog: The Blog of Legal Times reports that former Attorney General Alberto Gonzales, now at Texas Tech, has said that "I am disappointed that I didn't do things differently" to stop the politicization of the system of hiring career Justice Department attorneys through its honors program during his time in office.
As ImmigrationProf reported at the time, the Justice Department during Gonzales's tenure allegedly engaged in politically-based hiring for, among other positions, immigration judges and Board of Immigration Appeals members.
2010 Census Shows Nation's Hispanic Population Grew Four Times Faster Than Total U.S. Population
The U.S. Census Bureau today released a 2010 Census brief on the nation's Hispanic population, which shows the Hispanic population increased by 15.2 million between 2000 and 2010 and accounted for more than half of the total U.S. population increase of 27.3 million. Between 2000 and 2010, the Hispanic population grew by 43 percent, or four times the nation's 9.7 percent growth rate. The Hispanic Population: 2010 brief looks at an important part of our nation's changing ethnic diversity with a particular focus on Hispanic origin groups, such as Mexican, Dominican and Cuban.
One interesting note. Salvadorans have surpassed Dominicans as the fourth (behind Mexicans, Pureto Ricans, and Cubans) largest group of Latinos in the United States. The nation's 31.8 million Mexican-Americans continue to outnumber all other Latino groups, at 63 percent of the total Latino population. Following them are roughly 4.6 million Puerto Ricans, 1.8 million Cubans, 1.6 million Salvadorans and 1 million Guatemalans.
May 26, 2011
Economics vs. enforcement: The long-running Vidalia onion saga
Leslie Berenstein Rojas brings the immigration debare to something all of us who cook much can relate to -- Vidalia onions!
From the Bookshelves: International Law and the Israeli-Palestinian Conflict: A Rights-Based Approach to Middle East Peace
International Law and the Israeli-Palestinian Conflict: A Rights-Based Approach to Middle East Peace Edited by Susan M. Akram, Michael Dumper, Michael Lynk, Iain Scobbie Published December 21st 2010 by Routledge – 342 pages
The Israeli-Palestinian conflict has long been intertwined with, and has had a profound influence on, the principles of modern international law. Placing a rights-based approach to the Israeli-Palestinian conflict at the centre of discussions over its peaceful resolution, this book provides detailed consideration of international law and its application to political issues. Through the lens of international law and justice, the book debunks the myth that law is not useful to its resolution, illustrating through both theory and practice how international law points the way to a just and durable solution to the conflict in the Middle East. Contributions from leading scholars in their respective fields give an in-depth analysis of key issues that have been marginalized in most mainstream discussions of the Israeli-Palestinian conflict: •Palestinian refugees •Jerusalem •security •legal and political frameworks •the future of Palestine. Written in a style highly accessible to the non-specialist, this book is an important addition to the existing literature on the subject. The findings of this book will not only be of interest to students and scholars of Middle Eastern politics, International Law, International Relations and conflict resolution, but will be an invaluable resource for human rights researchers, NGO employees, and embassy personnel, policy staffers and negotiators.
From the Bookshelves: The Maid’s Daughter Living Inside and Outside the American Dream by Mary Romero
The Maid’s Daughter Living Inside and Outside the American Dream by Mary Romero 288 pages September, 2011. ABSTRACT: At a very young age, Olivia left her family and traditions in Mexico to live with her mother, Carmen, in one of Los Angeles’s most exclusive and nearly all-white gated communities. Based on over twenty years of research, noted scholar Mary Romero brings Olivia’s remarkable story to life. We watch as she struggles through adolescence, declares her independence and eventually goes off to college and becomes a successful professional. Much of her extraordinary story is told in Olivia’s voice and we hear of both her triumphs and her setbacks. In The Maid’s Daughter, Mary Romero explores this complex story about belonging, identity, and resistance, illustrating Olivia’s challenge to establish her sense of identity, and the patterns of inclusion and exclusion in her life. Romero points to the hidden costs of paid domestic labor that are transferred to the families of private household workers and nannies, and shows how everyday routines are important in maintaining and assuring that various forms of privilege are passed on from one generation to another. Through Olivia’s story, Romero shows how mythologies of meritocracy, the land of opportunity, and the American dream remain firmly in place while simultaneously erasing injustices and the struggles of the working poor.
BREAKING NEWS: Supremes Decide CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA ET AL. v. WHITING
The Supreme Court today affirmed the Ninth Circuit's decision in CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA ET AL. v. WHITING. The Court, in an opinion written by the Chief Justice, held that the Arizona law stripping buiness that employers of undocumented immigrants of licenses, is not to be preempted by federal immigration law. Download Chamber of commerce
Chief Justice Roberts wrote the opinion for the majority, joined by Justices Scalia, Kenedy, Alito, and, for the most part, Thomas. Justice Breyer, joined by Justice Ginsburg, dissented. Justice Sotomayor dissented separately. Justice Kagan did not take part in the consideration or decision in the case.
My initial reading of the decision is that it is relatively narrow in scope on the question of federal premption of state regulation of immigration (and thus should not be read too broadly with respect to the prospects of other state laws, including Arizona's S.B. 1070). The Immigration Reform and Control Act (8 U.S.C. § 1324a(h)(2)) expressly preempts
"any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit, or refer for a fee for employment, unauthorized aliens." (emphasis added).
The Court held that the Arizona Legal Arizona Workers Act provision that penalized employers of undocumented immigrants with up to loss of a business license, fell withing the language of the savings clause and thus was not prempted by federal law. A majority also found that there was nothing in federal law that barred a state, as Arizona did, from making use of the federal E-Verify system mandatory.
Debra Cassens Weiss of the ABA Journal noted that
"A word search of Roberts’ majority opinion reveals he did not use the term `illegal immigrants' or `illegal aliens,' except when quoting other sources. Instead he opted for the more politically correct terms `unauthorized aliens' and `unauthorized workers.' At oral arguments, word choice became something of an issue when Justice Sonia Sotomayor was the only justice who shunned the `illegal immigrants` terminology, referring instead to `undocumented immigrants.'"
It is noteworthy that Justice Sotomayor in her first opinion on the Court had thd opportunity to address this immigration terminological question.
One could say that the Chief Justice was using, as a lawyer should, the more technically accurate term rather than the "poolitically correct" one.
Lyle Denniston's analysis of the opinion appears on SCOTUSblog.
Immigration Article (and Title) of the Day: The Wonderful World of Disney Visas by KIT JOHNSON
"The Wonderful World of Disney Visas" Florida Law Review, Vol. 63, p. 1, 2011 KIT JOHNSON, University of North Dakota School of Law. Abstract: International workers play an important role in perpetuating the carefully crafted fantasy that to visit the Walt Disney World Resort in Orlando, Florida is to be transported to far-off destinations around the globe. This Article examines how Disney has filled its need for these workers in two ways. For one, Disney has used a blend of chutzpah and ingenuity to forge new federal law establishing the Q visa. Additionally, Disney has dexterously used the existing J visa, along with an on-resort academic program, to bring international workers to Florida as students. An examination of Disney’s immigration practices offers insight into the larger questions of who designs and benefits from immigration laws. These questions are particularly worthy of attention given the current call for federal immigration reform. I proceed by detailing the history of the Q visa law, which was designed by Disney for its own needs - namely, to authorize “cultural representatives” to travel to the United States for short durations and to work in jobs where they share aspects of their home countries with the American public. This present study is the first historical treatment of the Q visa in the literature. I then discuss what Disney has appropriated from its custom-designed immigration program. Next, I look at the J visa and how Disney has exploited it by analyzing the history of the J visa, which was created during the Cold War to cultivate an appreciation for and familiarity with American society. I then look at Disney’s International College Program, which is intended to provide compliance with the J visa law while ensuring a ready stream of available labor for Disney’s mammoth Florida resort operations. A thorough exploration of the facts shows that Disney’s International College Program is not consistent with the original statutory intent. Scrutiny of Disney’s Q and J visa programs highlights weaknesses in our current immigration system and illustrates how those flaws might affect future immigration reforms.
In this article, Professor Johnson continues her research on visas used by employers that had not previously received much attention.
Immigration Symposium of the Day: Symposium on Federalism at Work: State Criminal Law, Noncitizens and Immigration Related Activity
"Symposium on Federalism at Work: State Criminal Law, Noncitizens and Immigration Related Activity - An Introduction" M. ISABEL MEDINA, Loyola University New Orleans - School of Law. ABSTRACT: Over the course of the last few decades states have become much more aggressive about undertaking state regulation of undocumented migration. To some extent, states have pursued these efforts because of the perception that the federal government has not done enough to discourage or prevent undocumented migration. The federal government, however, since the early 1990s, has been devoting greater resources and attention to addressing the problem of undocumented migration. Notwithstanding the federal focus on immigration enforcement, in the past decade, states have sought to play a more active role in immigration enforcement and, in particular, in deterring or punishing undocumented or unauthorized migration. To some extent, federal immigration law facilitates cooperative state initiatives in law enforcement undertaken under federal supervision. Many state legislatures or municipalities unsatisfied with federal efforts, however, have gone further and enacted statutes that regulate immigration related activities or the status of being an undocumented or unauthorized non-citizen. One example is the ordinance adopted by the City of Hazleton, which among other things prohibited landlords from knowingly letting, leasing or renting a dwelling unit to an "illegal alien" and prohibited employment of undocumented aliens. Courts have enjoined the ordinance as preempted by federal law. More recently, states have enacted statutes that impose criminal sanctions on a variety of immigration related activity. Perhaps the most famous of these initiatives is Arizona’s SB 1070. A similar bill was introduced before the Louisiana legislature recently. That bill was unsuccessful but "at least one Louisiana legislator has promised to introduce a similar statute for adoption in Louisiana." This symposium at Loyola University New Orleans College of Law examined the role that state criminal law has or should have in the context of immigration, immigration related activities and unauthorized or undocumented migration.
The symposium had a great line-up and I look forward to the published symposium issue.
What about an Immig-Corps?
Professor Stacy Caplow (Brooklyn) in the National Law Journal contends that the nation needs a structured program for recent law graduates to provide legal services to poor, unrepresented immigrants while developing skills and knowledge to improve the level of competency of the immigration bar for the long haul. Sounds like an idea!! To paraphrase Professor Caplow, everyone benefits — the immigrants who find it difficult to obtain competent counsel, the courts that are teeming with time-consuming cases of unrepresented immigrants, and "the bar itself as new, well-trained lawyers enter the field raising the level of competence in general."
Can the Winnipeg Model Save Detroit?
An interesting article from New Geography sees immigration and immigrants as the answer for the devastated economy, failing infrastructure, and depopulating Detroit. The moder: Winnipeg in Manitoba, Canada, a former rusty industrial city that has been revived economically and otherwise through immigration and immigrants.
An Irish View of U.S. Immigration Reform
Jim Dee of the Belfast Telegraph offered an Irish perspective on U.S. immigration reform. The occasion was President Obama's much-publicized visit to Ireland, where he visited family and emphasized the importance of "diaspora communities." Ireland, of course, has sent an immigrant or two to the United States and immigration remains a salient issue to many Irish-Americans today.
May 25, 2011
Rocket Lawyer Podcast: Let's Talk Immigration
From Rocket Lawyer:
Legally Easy Episode 25: Let’s Talk Immigration
Immigration has long been a divisive issue in American politics. Policy reform seems to come every generation and most everyone on both sides of the aisle has strong opinions about what that reform should look like. Should we be more open with our borders? More closed? And how do we as a nation deal with the over ten million folks here illegally? On this edition of the Legally Easy Podcast, we examine those issues and more with immigration expert and professor Bill Ong Hing. Click here for the podcast.