Saturday, December 24, 2011

Racism Alive and Well in the U.S. Military

From the Washington Post and the Daily Beast:

The U.S. Army, which has struggled in recent years to combat a mounting suicide toll, took an unusual step when it announced Wednesday that it had charged eight American soldiers serving in Afghanistan in connection with the apparent suicide of one of their lower-ranking comrades.

The charges in the death of Pvt. Danny Chen, a 19-year-old infantryman from New York City, came after a vigorous, weeks-long campaign by advocacy groups and family members hoping to pressure the Pentagon to investigate allegations that Chen had been the subject of hazing within the ranks and had been repeatedly taunted with racial slurs.

. . . “We were told that he was dragged from his bed across the floor, and other soldiers threw rocks at his back,” Elizabeth OuYang, president of the New York chapter of the Organization of Chinese Americans, tells The Daily Beast. And, OuYang says, while forced to do chin-ups with liquid in his mouth, “Danny couldn’t cough up the liquid.”
OuYoung says the anti-Asian bullying and taunting started during basic training in Fort Benning, Georgia, when fellow soldiers used a mocking accent while calling him Jackie Chen, a reference to the action star Jackie Chan. A diary that Chen kept, as well as information released by the Army, are the basis for her claims.

December 24, 2011 | Permalink | TrackBack (0)

Representing Noncitizens in Civil Litigation 01/27/2012

UNLV law school will hold a program approved for 3 CLE credits. In Nevada, 18.8% of the population is foreign-born. As a result, it is increasingly likely that attorneys will represent a noncitizen client in civil litigation. Representing noncitizens in civil litigation requires that attorneys are aware of their clients' immigration status and are aware of strategies to combat the illegitimate use of immigration status to harass or intimidate the noncitizen litigants who they represent. This CLE will provide an overview of the immigration system; highlight ethical pitfalls in representing noncitizens; provide guidance for pretrial litigation, trial litigation and settlement; and discuss the use of representative plaintiffs to protect undocumented litigants. Click here for details.


December 24, 2011 in Current Affairs | Permalink | TrackBack (0)

Friday, December 23, 2011

Proposal to Integrate Undocumented Immigrants in California

Here's an interesting integration idea outlined by the Mexican American Political Alliance:

The California Opportunity and Prosperity Act (COPA)
Help Restore California's Economy through Integrating Qualified Immigrants

After fifteen years of bipartisan failure in D.C. to fix our broken immigration laws, it is time for California to lead the U.S. by example by enacting by ballot initiative a new law that gives qualified unauthorized residents who pay state income taxes the option to enter a program whose participants may gain relief from federal enforcement and whose labor may be decriminalized.

COPA Benefits to California's Budget and Society It is estimated that COPA could generate as many as a million new taxpayers1 who could contribute an estimated $325 millions of dollars annually in general revenue to California that will be used to fund desperately needed police and fire services, etc.

COPA does this by enacting a five year pilot, self-financed program in which participants gain entrance by meeting certain thresholds.

The participants are undocumented California residents who pay state income tax with a federal Individual Taxpayer Identification Number (ITIN); and can meet the following thresholds:

1. Have no felony convictions and are not suspected terrorists;

2. Know or are learning English;

3. Pay processing fee and provide a photo;

4. Are not public charges;

5. Have lived in California since before January 1, 2008;

COPA participants must continue to use a federal Individual Tax Identification Number to continue paying income taxes and pay annual renewal fee to remain in the program.

COPA directs California's Governor to petition the President and other federal agencies to: Provide relief and or exemptions from federal immigration enforcement actions against COPA members and their families; and decriminalize employment of COPA members.

Conceptually, COPA is based upon successful elements of the bipartisan Immigration and Control Act of 1986 (IRCA) signed by then-President Ronald Reagan. IRCA's most successful element or "General Legalization" program's eligibility criteria is replicated in the thresholds used for eligibility in COPA. COPA is enacted within the confines of the California Constitution, state and local law.

COPA follows successful efforts in California to enable qualified undocumented students to access private and state financial aid (AB130/AB131), and to end abusive police towing of vehicles owned by undocumented persons (AB353).

COPA continues the proud California tradition of trailblazing innovative US public policy as it has in the area of women's suffrage, environmental protection, and access to cannabis for medical uses.

1 According to a UCLA NAID Center research report by Raul Hinojosa-Ojeda and Marshall Fitz published in April 2011 with the Center for American Progress entitled "Revitalizing the Golden State What Legalization Over Deportation Could Mean to California and Los Angeles County", the undocumented population in California was estimated by the 2006-2008 American Community Survey (US Census Bureau) to be 2,700,000, of which 1.85 million were estimated to be employed in the work force, generating over 157 billion in Gross State Product of California. It is also estimated that there are an additional 500, 00 undocumented residents who are either under 18 or are family members of employed individuals.

Since net immigration flow have declined since the beginning of the crisis in 2007 to California and the U.S., it conservatively estimated that at least 75 to 85% of the estimated 2.6 million undocumented in California today could qualify under the terms of COPA.

Frequently Asked Questions
1. Who supports COPA?

COPA has a growing list of supporters. It was proposed by John Cruz of Orange County, a Republican and former Secretary of Appointments for Governor Schwarzenegger, and the Honorable Felipe Fuentes, a Democratic Assemblyman from the San Fernando Valley. COPA is also supported by members of the California Latino Legislative Caucus including Chairman Tony Mendoza, Asm. Ben Hueso, Asm. Manuel Pérez, Asm. Gil Cedillo, Sen. Ron Calderón, and Sen. Kevin De León.

In addition, COPA has the endorsement of Confederación de Federaciones Mexicanas (COFEM), Latino/Latina Roundtable of Pomona and San Gabriel Valleys (LRT), Community Union (CU), Mexican American Political Association (MAPA), Hermandad Mexicana Latinoamérica (HML), Anahuak Youth Sports Association (AYSA), William C. Velasquez Institute (WCVI), Southwest Voter Registration Education Project (SVREP), and the Latino Voters League (LVL).

2. What makes you think that COPA has a chance to succeed in California?

COPA's concept is very popular with the voters of all stripes according to our polls and focus groups, testing at more than 60% support. This includes Democrats, Republicans, and Independents.

California public opinion is leading the US towards reconciliation with immigrants. Californians have dealt with this issue for two decades are increasingly reaching a consensus for fair and humane treatment of immigrants.

3. How much revenue can COPA raise for California's General Fund?

Given the thresholds in COPA, 75% of California's undocumented population would be eligible to apply for status.

Implementing COPA could generate $325 million dollars in annual general fund revenue for California's state government as the new taxpayers come into the system.

4. What does COPA do?

COPA forms a five year pilot project that encourages certain immigrants to pay state income tax and potentially allows those who do to gain relief from federal enforcement and decriminalizes members' employment. Moreover it would pay for itself and allow immigrants to contribute to California's economy with their taxes and labor.

It would also lift the burden of illegality off COPA employers' shoulders as well as diminish the cheap labor pool.

It would help reset the national debate on federal immigration policy by showing that an inclusive rather than punitive policy framework is both more humane and effective.


5. Who can join COPA?

Undocumented California residents who pay state income tax with a federal Individual Taxpayer Identification Number (ITIN)); and can meet the following thresholds:

1. Have no felony convictions and are not suspected terrorists;

2. Know or are learning English;

3. Pay processing fee and provide a photo;

4. Are not public charges;

5. Have lived in California since before January 1, 2008;

6. Isn't immigration reform a federal responsibility?

Yes. COPA doesn't deal with US borders, legalization, visas or US Citizenship. Those powers belong to the federal government. COPA simply says that persons duly qualified as Californians that meet the above requirements should have relief from federal enforcement and have their work decriminalized.

7. Shouldn't we wait for Congress or the President to act on immigration reform?

We have waited for fifteen years. We had been writing letters, marching and visiting our representatives in Washington, DC. And 2010's elections show that "immigration reform" will be log-jammed for at least another 4-6 years. Approving COPA will provide relief and fairness to qualified unauthorized immigrants in California now until federal reform is enacted at some point in the future.

Moreover COPA provides a political and policy response to SB1070 in Arizona which turbocharged an already existing anti-immigrant wave across the country, in essence overwhelming the immigrant rights movement. Approving COPA will prod Washington to enact a national reform program sooner than later.

8. Won't COPA be struck down in the courts?

Not at all. COPA leaves federal immigration prerogatives in place with regard to citizenship, entering/leaving the country, and border control. Any other conflicts with federal law can be handled by exemptions for California gained through engagement between Governor Brown and the White House.

One good example of COPA's legal theory is that of Medical Marijuana. According to federal law, consumption of marijuana is illegal. Yet 15 states have enacted laws permitting conditional medicinal consumption, and have withstood court challenge as well as Federal/Congressional scrutiny/intervention. As a result millions of Americans are now conditionally consuming medical marijuana in the fifteen states where it has been legislatively approved. States rights are real in the U.S. and have to be invoked in the cause of commonsense treatment of immigrants!

Want to learn more, Read the COPA initiative, and see our Frequently Asked Questions (FAQ)? Visit our webpage



December 23, 2011 | Permalink | TrackBack (0)

Community Advisory: ADC Alarmed by Increase in Reported Complaints

The American-Arab Anti-Discrimination Committee (ADC) issued a "community advisory" expressing alarm at the significant rise in the number of discrimination complaints that have been reported to the Legal Department during the month of December. ADC has experienced a significant increase in the number of complaints received in December, marking the highest total for any month of 2011. The total number of cases received is nearly triple the number of cases received in December of 2010, and nearly 80% above the average for the month of December over the past 10 years. ADC expressed the belief that this increase in cases is directly linked to the negative sentiments and hateful rhetoric launched against the Arab American and Muslim American communities during the recent controversies involving Lowe’s and its advertising on the reality TV show All-American Muslim and Newt Gingrich’s comments on Palestinians.


December 23, 2011 in Current Affairs | Permalink | TrackBack (0)

Thursday, December 22, 2011

Breaking News: Federal Court Enjoins Three Provisions of South Carolina Immigration Law

CNN reports that a federal court has enjoined three parts of South Carolina's immigration law.

The first section enjoined makes it a felony to transport or conceal a person "with intent to further that person's unlawful entry into the United States" or to help that person avoid apprehension.

A second section makes it unlawful for an adult to "fail to carry" an "alien registration card."

The final section enjoined would have allowed local law enforcement with "reasonable suspicion" to detain any person the officers believe is in the United States illegally. A similar provision was enjoined by the the Ninth Circuit in United States v. Arizona, which is currently before the U.S. Supreme Court. However, in a ruling being appealed to the Eleventh Circuit, a district court declined to enjoin a similar provision in the Alabama immigration law.

The ACLU and a coalition of civil rights groups filed the challenge to the South Carolina law.


December 22, 2011 in Current Affairs | Permalink | TrackBack (0)

South Carolina's Immigration Law Enjoined

From the American Immigration Council

Washington, D.C.—The American Immigration Council welcomes today’s ruling from U.S. District Judge Richard M. Gergel, which temporarily enjoined three provisions of South Carolina Act 69 and found a fourth provision likely to be overturned in future proceedings. The ruling makes South Carolina the sixth state—after Arizona, Indiana, Georgia, Utah, and Alabama—to see major parts of a punitive immigration law blocked in federal court.

Following its enactment last June, South Carolina Act 69 was challenged in court by both the federal government and a coalition of civil rights groups. Today, in a 42-page opinion, Judge Gergel entered temporary injunctions against the following provisions, finding each to be preempted by federal immigration law:

Section 4, which makes it a state crime to transport or harbor undocumented immigrants, or for undocumented immigrants to allow themselves to be transported or harbored. 
Section 5, which makes it a state crime to fail to carry an immigration registration document issued by the federal government.
Section 6, which requires police to try to determine the immigration status of any person under investigation or arrest whom the officer has “reasonable suspicion” to believe is in the country illegally, and which makes it a state crime to possess or attempt to use a fraudulent identification to establish lawful presence in the United States.
As Judge Gergel explained, while local lawmakers have every right to disagree with the federal government’s efforts to set priorities in the enforcement of federal immigration law, their opinion “does not entitle the State of South Carolina to adopt its own immigration policy to supplant the policy of the national government.”

Judge Gergel also found a fourth provision—the one making it a state crime to sell fraudulent identification to undocumented immigrants—to be preempted by federal law, but declined to issue a temporary injunction after finding the federal government would not face irreparable harm if the provision went into effect while legal proceedings continued.

“Once again, a federal judge has confirmed what has long been settled: that states cannot enact their own immigration policies or interfere with the U.S. government’s efforts to enforce federal immigration law,” said Benjamin Johnson, Executive Director of the American Immigration Council.


December 22, 2011 | Permalink | TrackBack (0)

Shackled During Labor by Maricopa County Sheriffs Office

CNN reports that aformer inmate in Maricopa County, Arizona claims in a lawsuit that sheriff's officers shackled her while she was in labor and after her Caesarean section. The federal suit filed by Miriam Mendiola-Martinez, a Mexican citizen, comes days after the U.S. Department of Justice alleged the Maricopa County Sheriffs Office, under the leadership of Joe Arpaio, engaged in a pattern and practice of discrimination against Latinos. Mendiola-Martinez was arrested on charges of identity theft.


December 22, 2011 in Current Affairs | Permalink | TrackBack (0)

Wednesday, December 21, 2011

Obama Administration to Reduce National Guard Troops Along U.S./Mexico Border

The Obama Administration announced on Tuesday that it would reduce the number of National Guard troops along the Southwest border from 1,200 to 300 in 2012. The Guard had been deployed in August 2010 to assist in border enforcement. The troops were originally scheduled to withdraw on June 30, 2011, but the Administration extended the deployment through December 31, 2011.


December 21, 2011 in Current Affairs | Permalink | TrackBack (0)

US Historical Immigration Trends

The Migration Policy Institute has compiled a wealth of information about the historical trends of immigration to the United States. Charts and downloadable graphs map immigration patterns over the past decades, detailing characteristics of the US immigrant population that allow for greater analysis of migration flows and a historical context of immigration in the country. The data — drawn from the 2010 American Community Survey — include immigrants' countries and regions of birth, immigrants in the US labor force, children in immigrant families by state and age groups, and immigrants' age and sex distribution.

The top ten countries of immigration in 2010:

As expected, Mexico continues to hold the lead with the largest foreign-born population in the United States (29 percent of the nation's 40 million immigrants).

Far behind Mexico is China (which includes Hong Kong) at 5 percent, followed by India and the Philippines (4 percent each); Vietnam, El Salvador, Cuba, and Korea (3 percent each); and the Dominican Republic and Guatemala (2 percent each).

In 2000, Germany and Canada were in the top ten, with the Philippines slightly edging out China as the country with the second-highest percentage of the 31.1 million immigrants.


December 21, 2011 in Current Affairs | Permalink | TrackBack (0)

Soccer Player Fined for Racial Epithet

Interesting concept: punishment for racist behavior:

Liverpool striker Luis Suarez was suspended for eight matches and fined $62,000 on Tuesday after being found guilty of directing a racial insult at Manchester United defender Patrice Evra, who is black.

An English Football Association panel decided that Evra's allegations from United's Premier League match at Liverpool on Oct. 15 had been proven.

"The insulting words used by Mr. Suarez included a reference to Mr. Evra's colour," the FA said in a statement, adding that Suarez had also been warned about his future conduct. Read more...


December 21, 2011 | Permalink | TrackBack (0)

Lowe's Islamophobia and Message of Intolerance

From Elizabeth Potter of Unity Productions Foundation:

Recently, Lowe’s Home Improvement pulled its ads from the TLC show All-American Muslim in response to an organization claiming the show "falsely humanized Muslims in America.” The Lowe’s controversy has exposed more Islamophobia in America. This issue falls directly in line with what the My Fellow American project is trying to prevent and overcome in America.

Please visit to share what this controversy means to you? We must all fight back against intolerance and fear-mongering.


December 21, 2011 | Permalink | TrackBack (0)

Immigration Article of the Day: "Double Trouble: Double Jeopardy's Dual Sovereignty Exception and State Immigration Statutes" by Gregory S. Schneider and Jack Chin

"Double Trouble: Double Jeopardy's Dual Sovereignty Exception and State Immigration Statutes" Arizona Journal of International and Comparative Law, Vol. 27, p. 353, 2011 by GREGORY S. SCHNEIDER (Arizona) and GABRIEL JACKSON CHIN (UC Davis)

ABSTRACT: Arizona, along with other states, has begun enacting laws attempting to control the movement of undocumented non-citizens within and across its borders. This extraordinary new wave of legislation creates a serious vertical separation of powers problem, risking frustration of federal immigration policy. Although there are a number of reasons that the state action may be unconstitutional, this article focuses on the heretofore unexplored role of the Double Jeopardy Clause. The dual sovereignty exception to the Double Jeopardy Clause of the United States Constitution allows for successive prosecutions for the same offense, so long as each prosecuting jurisdiction bases the prosecution on its own authority. Two jurisdictions may not prosecute the same offense if each is drawing from the same source of power. States do not have their own authority to enact laws that regulate immigration. Defenders of state regulation do not deny federal primacy in the immigration area, but propose that states have been implicitly invited to assist in carrying out federal policy by enacting state laws. This article suggests that courts should be slow to conclude that the federal government has invited the states to enact legislation. If states have the authority to prosecute immigration cases, that means that the federal government is divested of its power to act in any case where the state prosecutes first. A court, therefore, should uphold state immigration prosecutions only if it is convinced not only that the law is not preempted or unconstitutional for some other reason, but also that the United States intentionally decided to give the states authority to override federal decision making in the immigration arena.



December 21, 2011 in Current Affairs | Permalink | TrackBack (0)

Tuesday, December 20, 2011

Class Certified on behalf of Detainees with Mental Disabilities

From the Northwest Immigrant Rights Project:

A federal judge has approved a request by NWIRP and our partners (below) to represent a group (class) of immigrants with mental disabilities who are held in immigration detention facilities and are facing deportation proceedings. Currently, immigrants do not receive a right to an appointed attorney in a deportation case, even if they have a severe mental disability. Through this class action lawsuit, NWIRP and our partners are working to vindicate the rights of immigrant detainees with mental disabilities who are facing deportation without an attorney. We are hoping to ensure that these individuals are provided with at least the minimum meaningful protections when the government is seeking to deport them from the country.

"The most important aspect of the ruling granting class certification is that we are now in a position to address this problem on a systemic level," said Matt Adams, Legal Director of Northwest Immigrant Rights Project. "People with severe mental disabilities who are locked up in immigration detention are ground through this system without even understanding what is happening to them. We can now focus on fighting for the right to counsel so that they receive a fair hearing." See the official press release here.

NWIRP thanks our partners on this case: ACLU of Southern California, Sullivan & Cromwell, Public Counsel, Mental Health Advocacy Services Inc., the ACLU's Immigrants' Rights Project, the ACLU of San Diego & Imperial Counties, and the ACLU of Arizona.


December 20, 2011 | Permalink | TrackBack (0)

Suit Over "Clock" to Work Authorization for Asylum-Seekers

Last week, the American Immigration Council’s Legal Action Center (LAC) filed a nationwide class action lawsuit against U.S. Citizenship and Immigration Services (USCIS) and the Executive Office for Immigration Review (EOIR) in federal court in Seattle. The lawsuit alleges widespread problems with the asylum “clock”—the system that the government uses to determine when immigrants with pending asylum applications become eligible to obtain work authorization in the United States.

The complaint, co-filed with the Northwest Immigrants Rights Project, Gibbs Houston Pauw, and the Massachusetts Law Reform Institute, was submitted on behalf of untold numbers of asylum applicants wrongfully denied work authorization due to unlawful agency policies and practices. The named plaintiffs include asylum seekers who have pursued their cases for years without work authorization—including a man from China who initially filed his asylum application in 2003.


December 20, 2011 in Current Affairs | Permalink | TrackBack (0)

From the Bookshelves: The Social Security Position of Irregular Migrant Workers by Klaus Kapuy

Kapuy book
The social security position of irregular migrant workers New insights from national social security law and international law by Klaus Kapuy

ABSTRACT:  How should a State treat an irregular migrant worker, i.e. a foreign worker without authorisation to stay and/or work in the country, who is confronted with the realisation of a social risk? For instance, how should the State deal with an irregular migrant worker who becomes incapacitated for work due to a labour accident? Should he/she be treated like any other worker and qualify for income replacement benefits, medical benefits and labour-market reintegration measures? Or should the worker be denied benefits since he/she lacks work authorisation and may also lack authorisation to be in the country? This book addresses these questions and sets out proposals on how irregular migrant workers should be treated in national social security law. These are based on an analysis of the current social security position of irregular migrant workers and of a reference group, i.e. a country's own nationals who engage in undeclared work, in three selected Western States: Belgium, Canada and the Netherlands. In addition, the author conducts an in-depth investigation of the existing international legal framework (UN, ILO, EU, and CoE law), in order to ascertain the legal limits of any proposal on the legal position of irregular migrant workers.

The author, Klaus Kapuy, is a legal researcher specialising in the field of European, international and comparative social security law. Among other subjects, his previously published works deal with the European Court of Human Rights and social security, regular and irregular migrant workers and questions of social security, and social security issues in European Union law. The author obtained his PhD at the University of Leuven, Belgium.


December 20, 2011 in Books, Current Affairs | Permalink | TrackBack (0)

Guide for Haitian Nationals Seeking Prosecutorial Discretion

University of Miami School of Law Immigration Clinic students have prepared a packet designed to provide guidance to Haitian nationals on requesting deferred action or release from detention.  Here it is.  Download Deferred Action Packet


December 20, 2011 in Current Affairs | Permalink | TrackBack (0)

Justice Department Report Finds Civil Rights Violations by East Haven Police Department

The Civil Rights Division of the Department of Justice has been very busy. Last week, it issued a report condemning the rampant civil rights violations of Latinos and immigrants by Sheriff Joe Arpaio and the Maricopa County Sheriffs Office.

Yesterday, the Justice Department released a report on claims of anti-Latino profiling and discrimination by the East Haven Police Department (EHPD) in Connecticut. The DOJ makes detailed findings of unconstitutional activity, indicates it will proceed with litigation if a judicially-enforceable consent decree is not negotiated, and curtails EHPD iimmigration enforcement activities.

The DOJ investigation was launched in response to a complaint from St. Rose Church and Apostle Immigration Services, represented by the Worker & Immigrant Rights Advocacy Clinic at Yale Law School.

The Justice Department letter summarizes as follows:

"Based on our review, we find that EHPD engages in a pattern or practice of systematically discriminating against Latinos in violation of the Fourteenth Amendment to the Constitution, Title VI, and the Safe Streets Act. In particular, we find that EHPD engages in discriminatory policing against Latinos, including but not limited to targeting Latinos for discriminatory traffic enforcement, treating Latino drivers more harshly than non-Latino drivers after a traffic stop, and intentionally and woefully failing to design and implement internal systems of control that would identify, track, and prevent such misconduct. The pattern or practice of discriminatory policing that we observed is deeply rooted in the Department's culture and substantially interferes with the ability of EHPD to deliver services to the entire East Haven community."


December 20, 2011 in Current Affairs | Permalink | TrackBack (0)

Immigration Article of the Day: "What Nations are Doing About Immigrant Workers in Downturn Economies: Examining and Comparing the Recent Treatment of Immigrant Workers in the United States and Spain" by Maria Pabón Lopez

Maria lopez
"What Nations are Doing About Immigrant Workers in Downturn Economies: Examining and Comparing the Recent Treatment of Immigrant Workers in the United States and Spain" Notre Dame Journal of International, Company, & Human Rights Law, Vol. 1, No. 80, 2011 DEAN MARIA PABON LOPEZ, Loyola University New Orleans College of Law.

ABSTRACT: This article examines both the current treatment of immigrant workers in the United States and Spain and how the American and Spanish legal systems respond to issues regarding their foreign workers during difficult economic circumstances. It contrasts the situation of undocumented workers in the United States with the situation of immigrant workers in Spain, both before the economic downturn, when an amnesty program was put in place, and after the downturn, following the enactment of a voluntary immigrant return plan. It then compares the approaches of the two countries, contrasting Spain’s amnesty and subsequent voluntary return plan to the treatment of undocumented workers in the U.S.


December 20, 2011 in Current Affairs | Permalink | TrackBack (0)

Immigration: Politics and Facts Don't Match on the Border by Edward Alden

Ted Alden in Newsweek makes an observation worth noting: "Even as crossings slow to their lowest rate in four decades, politicians continue their tough talk and policies on immigration." While Republican presidential candidates have advocated for the toughest border enforcement measures—from more military troops to electrified fences along the border with Mexico, the Obama administration is busy setting deportation records. And undocumented immigration may not be such a big problem with a weak economy.

For a similar analysis by Vic Johnson on the NAFSA blog, click here.


December 20, 2011 in Current Affairs | Permalink | TrackBack (0)

Monday, December 19, 2011

Immigration Article of the Day: The War on Terror as a Metaphor for Immigration Regulation: A Critical View of a Distorted Debate by Geoffrey A. Hoffman and Susham M. Modi

The War on Terror as a Metaphor for Immigration Regulation: A Critical View of a Distorted Debate by Geoffrey A. Hoffman (University of Houston Law Center) and Susham M. Modi (University of Houston Law Center), Iowa Journal of Gender Race and Justice, Forthcoming

Abstract: The “war on terror” represents a powerful metaphor reaching into the everyday lives of millions of non-U.S. citizens and citizens alike, both domestically and abroad. The “war” has skewed the debate, specifically regarding immigration regulation and reform. It is especially pernicious because it operates, on an unconscious level, on our unstated assumptions about immigrants and immigrant populations. In this Article, the authors begin with a discussion of the so-called “anchor” babies, now transmogrified into a new, scarier concept, “terror” babies. This is a good starting point for the discussion because it illustrates quite poignantly the ways in which the rhetoric has driven the debate to the point of absurdity and hyperbole. We then address the proliferation of terror-related grounds of inadmissibility and deportability. The issues which have come up in proceedings center around the malleability of the term “material support,” the exceedingly large breadth of scope in the term “terrorist activity,” as well as the difficulties which follow from allowing for the incorporation of the inadmissibility grounds into the parallel ground of deportability in section 237 of the Immigration and Nationality Act (“INA”). Equally disturbing are the misunderstandings surrounding the term “illegal immigrant.” We argue for a more nuanced approach which takes into account the range of available relief depending on the nature and history of one’s undocumented status. Throughout the discussion, there is the recognition that governmental actors have latitude, sometimes enormously wide latitude, to interpret the laws. It is often in these interstices where abuse occurs. We next discuss the fugitive disentitlement doctrine, and the trend to apply the doctrine outside of its normal confines in the context of criminal defendants and to deprive the courts of jurisdiction to hear the appeals of immigrants. We point out the infirmities with applying the fugitive disentitlement doctrine in the context of immigration. In the Real ID Act, among other legislation, there are severe jurisdiction-stripping provisions which have deprived federal district courts, in habeas proceedings, of the power to review final orders of removal, and modified the jurisdiction of the federal courts of appeals to hear immigrants’ appeals in other important ways. We argue that in these provisions the Real ID Act violates the Suspension Clause. In our conclusion we argue that metaphors certainly help us to interpret the world by making connections between disparate concepts. However, metaphors are not merely “figures of speech” but can result in tools of powerful persuasion. The danger of equating terrorists with immigrants and vice versa through the metaphor of the war on terror has become a very real threat to immigrants’ rights, and by extension, to all our rights, citizens and non-citizens alike.


December 19, 2011 in Current Affairs | Permalink | TrackBack (0)