September 2, 2011
Child advocates say more should be done to assist immigrant minors crossing the border
Susan Ferriss of the Center for Public Intergrity has a nice piece reminding us of the dangers facing unaccompanied immigrant minors crossing the border.
9/11 Unity Event in Sacramento
From Florin JACL
9/11 Tenth Anniversary Memorial & Reception Sept 9th 7:30pm
Dear Community Friends,
Join diverse grass roots Americans, led by the Japanese, Muslim, Sikh, and Buddhist American communities, at a 9/11 memorial and reception. Honor the victims of 9/11, urge unity among all Americans, support innocent people in the Sikh, Muslim & Arab American communities, and reach out one-to-one to those unfairly blamed. Memorial is on Friday, Sept. 9th 7:30 pm at the Buddhist Church of Florin 7235 Pritchard Road (off Florin Road, between Power Inn Road and the railroad tracks), Sacramento. Please RSVP by September 6th to FlorinJACL@hotmail.com or just reply to this email
Japanese American survivors of the World War II concentration camps, the victims of backlash after the December 7, 1941 Pearl Harbor bombing, will lead the memorial. They reach out a hand in friendship to the Sikh, Muslim, and Arab American communities now under a cloud of suspicion, suffering discrimination, and hate crimes. People will gather at the historic Buddhist Church of Florin, where the local Florin Japanese American community of 2,500 gathered in 1942 to learn the news of their impending imprisonment.
Main event sponsors are the Florin Japanese American Citizens League (Florin JACL), Sacramento Sikh Temple, Council on American Islamic Relations – Sacramento Valley (CAIR-SV), and the Buddhist Church of Florin, plus other endorsers.
Please RSVP by September 6th to FlorinJACL@hotmail.com
The Fight for "Quien Es Mas Macho on Immigration" Begins Among the Republican Presidential Candidates
The Wall Street Journal reports that "Mitt Romney suggested Friday that Texas Gov. Rick Perry, his top rival for the GOP presidential nomination, is weak on immigration." This will be interesting as both Romney and Perry have have had some positive momemts in their political histories on immigration. I hate to say it but this might get worse before it gets better as the moderate Republicans fight for the support of the nativist right. Here is a Washington Post analysis of the brewing storm on "illegal" immigration.
Immigration Article of the Day: Refugee Credibility Assessment and the 'Religious Imposter' Problem: A Case Study of Eritrean Pentecostal Claims in Egypt by Michael Kagan
Refugee Credibility Assessment and the 'Religious Imposter' Problem: A Case Study of Eritrean Pentecostal Claims in Egypt Michael Kagan University of Nevada, Las Vegas, William S. Boyd School of Law Vanderbilt Journal of Transnational Law, Vol. 43, No. 5, p. 1179, November 2010
Abstract: Credibility assessment in refugee status determination (RSD) poses unique challenges when the outcome of asylum applications turns on the question of whether an asylum seeker is actually a member of a persecuted religious minority. These cases require secular adjudicators to delve into matters of religious identity and faith that are, by their nature, subjective and beyond the realm of objective analysis. This Article explores practical means of addressing this challenge through a case study of the RSD interviews of Eritrean asylum seekers in Egypt who based their refugee claims on Pentecostal religious associations. Analysis of the interview methods used in RSD interviews indicates that RSD decision makers operated from several implicit assumptions about how to conduct religious-credibility assessment. Attempts to test the sincerity of religious faith via knowledge quizzes and inquiries into subjective beliefs have questionable logical justifications and are fraught with significant risks. By contrast, the most logically defensible approaches are based on the “eye of the persecutor” test, which focuses on observable triggers of persecution that put individuals at risk.
Food for Thought: A People of Color Majority? Meh, So What?
ColorLines reports that "in a national survey of about 2,400 adults, gleaned from SurveyMonkey’s millions of users in late spring, we found that the majority of people have no feelings one way or the other about the changing face of the U.S. Rather, the people who are most inclined to contribute their voices to the collective narrative on our national identity are those who are most pessimistic about it."
September 1, 2011
The Use of Discretion to Deny a Truly Desperate Asylum Seeker who is Eligible for Relief: Li v. Holder
The Ninth Circuit today in LI v. HOLDER issued an intresteding asylum opinion, written by Judge Richard C. Tallman, joined by Judges Ferdinand F. Fernandez and Pamela Ann Rymer.
Junming Li, a native and citizen of China, petitioned for review of a decision of the Board of Immigration Appeals (BIA). The BIA affirmed the immigration judge’s (IJ) decision denying asylum in the exercise of discretion. In the Ninth Circuit's words, "[t]he Board balanced the likelihood of persecution and its severity against the negative factors in the record and agreed with the IJ that Li’s method of entry into the United States—being concealed in a metal box that was welded to the bottom of a car and driven across the border in the desert heat—was so dangerous that asylum should be denied." (emphasis added).
There was no dispute that Li established a well-founded fear of persecution on account of religion by Chinese officials for practicing Falun Gong. Other practitioners of Falun Gong have been beaten, interned in labor camps, and hospitalized involuntarily.
While some might view the way that Li entered the United States as corroborating his very real fear of persecution, the IJ "denied relief as an exercise of discretion due to the dangerous nature in which Li entered the United States. The IJ explained that the purpose of denying Li’s application was to deter others seeking asylum from employing such perilous methods." The BIA affirmed.
Here is the Ninth Circuit's reasoning:
"Li argues that it is unfair to deny him asylum for the sake of teaching others a lesson. He emphasizes that at the time he crossed the border, he was a frightened nineteen-year-old, and argues that “[a] desperate person in his situation should not be blamed for apparent unreasonable behavior.” Li also contends that the BIA’s decision does not comply with Matter of Pula, which states that “the danger of persecution should generally outweigh all but the most egregious of adverse factors.” 19 I. & N. Dec. at 474.
While there is a sense of unfairness in singling out Li for the purpose of sending a message to other potential asylum seekers, the BIA is not required to grant asylum to every qualified applicant. See INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987). Otherwise there would be no meaning behind the power to exercise a discretionary denial. In dismissing Li’s appeal, the BIA considered Li’s specific circumstances, including the positive and negative factors associated with asylum. For example, in addition to Li’s method of entry, the BIA considered the likelihood and severity of persecution against Li if he returned to China; that other relief had been granted; that Li did not have family members who would lose their legal status as a result of his denial of asylum; that Li was not compelled to leave Mexico; that his departure from Mexico was not triggered by an impending threat to him or his freedom; and that he was aware that he could walk to the United States and seek asylum, but in an attempt to avoid detection chose a significantly more dangerous method. The BIA concluded, after considering “all the circumstances of this case,” that the IJ did not abuse his discretion in denying Li’s asylum application.
The BIA properly considered the totality of circumstances and weighed the relevant positive and negative factors when considering whether to dismiss Li’s appeal. See Matter of Pula, 19 I. & N. Dec. at 473. Li’s method of entry was egregious and he is protected from persecution through other forms of relief. Because the BIA’s decision does not appear arbitrary, contrary to law, or irrational, there was no abuse of discretion. We therefore deny the petition."
Refugees and Asylees in the United States
In 2010, the United States granted humanitarian protection to nearly 95,000 immigrants, including some 73,000 refugees and 21,000 asylum seekers. MPI's Monica Li and Jeanne Batalova take a detailed look at the most recent refugee and asylum data in the United States.
How Past Administrations Have Used Executive Branch Authority in Immigration
Today, the Immigration Policy Center releases Using All the Tools in the Toolbox: How Past Administrations Have Used Executive Branch Authority in Immigration by Mary Giovagnoli. The paper examines the political battle over implementation of provisions of the Nicaraguan Adjustment and Central American Relief Act (NACARA) during the late 1990s. It also looks at the role of executive branch authority during a key moment in the Bush Administration's work on comprehensive immigration reform.
Using the tools of executive branch authority, both the Clinton and Bush Administrations made the most of what the law had to offer, staying within the letter of the law, but opting for interpretations that reflected differing, but legally permissable, readings of the law. This lesson is worth recalling in the fight over prosecutorial discretion and administrative relief today. The Department of Homeland Security's (DHS) plan to review 300,000 immigration cases to assess whether they fall within the Administration’s enforcement priorities has already inflamed critics. Because the Administration may close some low priority cases in order to focus its limited resources on more serious cases, critics are immediately claiming this is an “amnesty.” But the DHS announcement is about using executive branch authority—in this case, prosecutorial discretion—to carry out its policy priorities. The debate is not whether the President has the authority to revisit existing interpretations of laws. As the Bush Administration made clear, an administration has a duty to carry out the law to the best of its ability, which includes its interpretive ability. The Obama Administration has taken a first step in laying out clear guidance on prosecutorial discretion and forming a review committee, but it can’t stop there. Clear and transparent guidance on the implementation of the priority review process, and how that guidance will be implemented in making decisions about new cases, is needed and must be put out quickly.
JUDGE GRANTS TRO AGAINST NEW MEXICO DRIVER’S LICENSE RE-CERTIFICATION PROGRAM
Today, a judge in New Mexico ordered the New Mexico Secretary of Tax and Revenue to put a stop to the so-called “Residency Certification Program.” The Temporary Restraining Order bars implementation of the re-certification program, including the state’s ability to single out certain individuals and to cancel driver’s licenses. On behalf of a group of New Mexico legislators and residents of New Mexico, MALDEF and the New Mexico law firm of Freedman Boyd Hollander Goldberg Ives & Duncan filed suit against the Secretary of the New Mexico Taxation and Revenue Department, seeking to stop the targeting of immigrants in the state. After a hearing, the court entered a TRO.
NM Gov. Susana Martinez favors changing state law to bar undocumented immigrants from being eligible for a driver's license.
MALDEF Staff Attorney, Martha Gomez, stated, “Today's order halting the MVD's in-person interviews and the cancellation of drivers' licenses is an important protection for the constitutional rights of all New Mexicans, and particularly for the thousands of individuals who were unfairly targeted. MALDEF will continue to fight throughout this legal process to obtain a final end to this licensing scheme and to restore the rule of law that the execute branch has co-opted.”
David Urias of Freedman Boyd Hollander Goldberg Ives & Duncan stated, “The Order issued today by Judge Singleton is an important step towards protecting the constitutional rights of people who are being commanded by the MVD to come before it, even though the MVD has no information that any of these people did anything wrong when they applied for their drivers’ licenses. We are confident that, ultimately, the entire Program created by the MVD will be struck down by the Court.”
(Sick) Sign of the Times: Arizona Republicans are fundraising by raffling off a Glock pistol, the same brand of gun used to shoot Rep. Gabrielle Giffords just eight months ago
The Arizona Republic reports that "[o]n Aug. 26, the Pima County Republican Party sent out an online newsletter that described the raffle as part of an initiative to raise money for get out the vote efforts, according to the Huffington Post, which first spotted the newsletter." Congresswoman Gabrielle Giffords was shot, and nearly killed, with a Glock. Sadly, a number of others were not so lucky.
The New Metro Minority Map: Regional Shifts in Hispanics, Asians, and Blacks from Census 2010
A new Brooking Institute report, The New Metro Minority Map: Regional Shifts in Hispanics, Asians, and Blacks from Census 2010, shows how the rapid growth of Hispanic and Asian origin groups and new internal shifts of African Americans are transforming the racial and ethnic demographic profiles of America’s largest metropolitan areas ahead of other parts of the country.
Kanye West Helps One Immigrant Find a Voice
Here is an out of the ordinary immigrant story from Tablet Magazine. Read "Graduation: A Jewish Ukrainian immigrant needed a voice to help reconcile her foreign past and her American future. She found it—in Kanye West."
Intolerance Toward Muslims with Hijabs Leads to Riot
Fifteen people were arrested at Rye Playland amusement park in Westchester County [Tuesday] afternoon, and two charged with felony assault after a melee broke out when a park employee asked a Muslim woman to remove her headscarf before boarding a ride. The woman who attempted to ride the Dragon Rollercoaster, Haifa Ali, tells Patch that after she was told she couldn't ride unless she removed her hijab, she and a group of other Muslim women went to ask for a refund. Then "someone grabbed her hijab…a park ranger wrestled another one of the women to the ground," when "law enforcement began to converge on the group, hitting them with batons." Another eyewitness not with the group says she heard one female police officer yell, "I don't give a f*ck about your culture." Read more....
Immigration Article of the Day: "Beyond Saints and Sinners: Discretion and the Need for New Narratives in the U.S. Immigration System" by ELIZABETH KEYES
"Beyond Saints and Sinners: Discretion and the Need for New Narratives in the U.S. Immigration System" ELIZABETH KEYES, American University Washington College of Law. ABSTRACT: This article examines the forces affecting the exercise of discretion in American immigration courts, and argues that in this present age of immigration anxiety, the same facts that place an individual in deportation proceedings may constitute the reasons a judge will, relying on discretion, deny them relief for which they are otherwise eligible. The article explores the polarized narratives told about “good” and ”bad” immigrants, the exceptionally difficult task of adjudicating in overburdened immigration courts, and the ways in which these polarized narratives interact with psychological short-cuts, or heuristics, that affect judicial exercises of discretion. After engaging in this analysis, the article concludes that awareness of the force of broader societal narratives in immigration court can equip lawyers with tools to understand what might drive a judge’s use of discretion, help them tell the most effective narrative possible for their clients, and be aware of the opportunities - and need - to broaden the narrative space outside the courtroom in ways that can positively shape the cases of their clients of tomorrow.
Australian High Court rules against refugee swap
ROD McGUIRK of the Associated Press reports that "Australia's highest court ruled Wednesday that asylum seekers can't be sent to Malaysia, a major blow to the government's plan to stem an influx of people from poor, war-torn countries attempting to reach Australia by boat. The High Court reached a 6-1 majority decision to make permanent an injunction that has prevented Australia from transferring 800 asylum seekers to Malaysia in return for Malaysia sending 4,000 registered refugees for resettlement. The ruling cannot be appealed."
Rick Perry: A Leader on Immigration Reform?
Geoffrey Hoffman (Houston) writes that Texas Gov, and Republican Presidential candidate, Rick Perry, whose immigration positions have been the subject of ImmigrationProf commentary, is in a position to be a leader on immigration policy. The bad -- and perhaps good -- news is that to this point, Perry does not good have a stated position on immigration on his Perry for President website.
August 31, 2011
Do You Feel Safer? ICE arrests 27 during Dallas student-visa enforcement operation
DALLAS — Twenty-seven immigration status violators, visa overstays, and foreign students were arrested last week by special agents with U.S. Immigration and Customs enforcement’s (ICE) Homeland Security Investigations (HSI) for violating the conditions of their visas. They were arrested by ICE HSI’s Counterterrorism and Criminal Exploitation Unit (CTCEU) which is a national program designed to prevent terrorists and other criminals from exploiting the nation’s immigration system.
“One of the lessons learned from 9-11 was the importance of screening, tracking and enforcing the student visa program in the United States,” said Alysa Erichs, special agent in charge of ICE HSI in Dallas. “ICE HSI oversees this important program, and our Dallas-area agents made these recent arrests as part of these enforcement efforts.”
Those arrested are from the following countries: Nepal (7), Kenya (6), Pakistan (6), Mexico (4), and once each for India, Kazakhstan, Peru and Turkey. They were encountered in the following north Texas cities: Arlington, Blue Mound, Dallas, Euless, Grand Prairie, Irving, Justin, Richardson, Plano and The Colony. They all were processed for immigration removal proceedings. In addition to their immigration violations, two of those arrested had falsely claimed U.S. citizenship, which is a felony and results in being permanently barred from legally re-entering the United States.
The 11-day operation ended Aug. 26. One of those arrested was a flight student who failed to attend his flight school. Twelve of those arrested overstayed their visitor’s visa; nine overstayed or violated the terms of their student visas. One exchange student who overstayed his visa was also arrested.
Do you feel any safer?
Even with Kinder, Gentler Obama Immigration Policies, Expect 400,000 Deportations Next Year
The Obama administration, which until recently has been known primarily on immigration for its enforcement-oriented policies, has gotten many kudos for the announcement a few weeks ago that it will prioritize its removals and not necessarily seek to deport all of the hundreds of thousands of noncitizens currently in removal proceedings. Of course, the devil, as they say, is in the details. And it is important to keep in mind that the Obama administration has annually deported more noncitizens than any administration in U.S. history. As Citizen Orange reports, the administration plans to maintain its level of deportations at about 400,000 next year.
In my estimation, it remains too early to say that the administration is not still devoted to "enforcement now, enforcement forever" policies.
California Acts to Throttle Cities Exploiting Undocumented Immigrants Through Auto Impoundments
Patrick McGreevy of the Los Angeles Times reports that the California state Senate yesterday voted to restrict the ability of cities to impound cars driven by people caught at sobriety checkpoints without driver's licenses. Undocumented immigrants in all but two states are ineligible for a driver's license. "The action came as a direct response to the city of Bell, which made it a practice to confiscate vehicles from unlicensed motorists — many of them illegal immigrants — and then charge high impound fees or sell them in order to fill city coffers."
The City of Bell made national news last year with the disclosure of massive financial corruption by city leaders.
A Common Immigrant Story: President Obama's Mixed Immigration Status Family
We reported yesterday how President Obama's uncle -- due to the operation of the President's Secure Commiunities program -- is facing deportation. Leslie Berestein Rojas has a great story on the Obamas as a mixed immigration status family, with teh President a U.S. citizen. The efforts to remove the President's uncle and the fact that his aunt is an asylee exemplifies a common feature of many immigrants and U.S. citziens, that thet are members of mixed-status families.