December 1, 2012
Immigration Article of the Day: Restrictive State and Local Immigration Laws: Solutions in Search of Problems by Pratheepan Gulasekaram and Karthick Ramakrishnan
Restrictive State and Local Immigration Laws: Solutions in Search of Problems by Pratheepan Gulasekaram (Santa Clara) and Karthick Ramakrishnan (University of California, Riverside), American Constitution Society for Law and Policy Issue Brief, November 2012
Abstract: In the Issue Brief, the authors demonstrate that conventional understandings of why states and localities pass restrictive immigration laws do not hold up under empirical analysis. Rather, the data from their nationwide study of 50 states and over 25,000 local jurisdictions show that “what most subfederal jurisdictions with immigration enforcement laws share is not economic stress or overconsumption of public goods or heightened violent crime, but rather a partisan composition within their legislative and executive branches that is highly receptive to enforcement heavy proposals.” These laws are not, as some have contended, organic local responses to inaction at the federal level. Rather, they are the outcome of a concerted and coordinated effort by immigration restrictionists to “purposefully promote legislative gridlock at the federal level, and then cite the very national legislative inaction they helped foment to justify restrictive solutions at the local level.”
Immigrant Women Lead Plunging U.S. Birth Rate
A Pew Research Center report (U.S. Birth Rate Falls to a Record Low; Decline Is Greatest Among Immigrants by Gretchen Livingston and D’Vera Cohn) finds that the U.S. birth rate dipped in 2011 to the lowest ever recorded, led by a plunge in births to immigrant women since the onset of the Great Recession.
The overall U.S. birth rate, which is the annual number of births per 1,000 women in the prime childbearing ages of 15 to 44, declined 8% from 2007 to 2010. The birth rate for U.S.-born women decreased 6% during these years, but the birth rate for foreign-born women plunged 14%—more than it had declined over the entire 1990-2007 period.1 The birth rate for Mexican immigrant women fell even more, by 23%.
From the Bookshelves: Lawless Capitalism: The Subprime Crisis and the Case for an Economic Rule of Law by Steven A. Ramirez
The subprime mortgage crisis has been blamed on many: the Bush Administration, Bernie Madoff, the financial industry, overzealous housing developers. Yet little scrutiny has been placed on the American legal system as a whole, even though parts of that system, such as the laws that regulate high-risk lending, have been dissected to bits and pieces.
In this innovative and exhaustive study, Steven A. Ramirez posits that the subprime mortgage crisis, as well as the global macroeconomic catastrophe it spawned, is traceable to a gross failure of law. The rule of law must appropriately channel and constrain the exercise of economic and political power. Used effectively, it ensures that economic opportunity isn’t limited to a small group of elites that enjoy growth at the expense of many, particularly those in vulnerable economic situations. In Lawless Capitalism, Ramirez calls for the rule of law to displace crony capitalism. Only through the rule of law, he argues, can capitalism be reconstructed.
Miami Immigration Clinic Fights for Haitians
Farrin Anello Supervising Attorney of the Immigration Clinic at the University of Miami School of Law reports on the good work of the clinic in seeking to suspend deportations of Haitian nationals who are seriously ill or who have family in the United States.
On November 3, the University of Miami School of Law Immigration Clinic, along with Dr. Arthur Fournier of the University of Miami Miller School of Medicine and Project Medishare and Marleine Bastien of Fanm/Haitian Women of Miami, met with representatives from the U.S. Department of Homeland Security and Department of State at a formal working meeting before the Inter-American Commission. In preparation for this meeting, Immigration Clinic students Alanna McCoy, Francesse Lucius, Stephanie Almirola, and Misato Sawada interviewed many individuals who were recently deported to Haiti and prepared a written submission documenting the human rights violations experienced by recent deportees. This brief was submitted with partners Alternative Chance, Americans for Immigrant Justice, the Center for Constitutional Rights, Fanm/Haitian Women of Miami, Loyola University New Orleans College of Law Stuart H. Smith Law Clinic and Center for Social Justice, and the University of Miami School of Law Human Rights Clinic. Second-year student Alanna McCoy presented the students' findings at the Commission working meeting. More information and photos from this meeting can be found here.
On November 16, the Inter-American Commission issued a statement calling upon the United States "to suspend deportations to Haiti of persons of Haitian origin who have are seriously ill or who have family members in the United States, especially when those family members are children and those at risk of deportation were the family's primary breadwinners." The Commission found that the "information presented to the Inter-American Commission indicates that the individuals who were deported allegedly do not have access to adequate medical care in Haiti, and the satisfaction of other basic needs is further affected by the weak structure of the Haitian State following the 2010 earthquake. Many of them were apparently deported despite presumed family ties in the United States, where they were the main income providers." The Commission expressed concern that the United States had violated the Commission's precautionary measures, which had urged the United States not to deport individual Haitian nationals with serious medical conditions or family ties in the United States.
The UN High Commissioner for Refugees, the UN High Commissioner for Human Rights, and the UN Independent Expert on the Situation of Human Rights in Haiti, have urged a halt to all deportations to post-earthquake Haiti. The UN Independent Expert's report is available here, and the joint statement of the UNHCR-OHCHR is available here.
The United States continues to send monthly deportation flights to Haiti. However, ICE's April 2011 Policy on Resumed Removals to Haiti, which provides that the agency will weigh humanitarian factors in determining whether to deport individual Haitian nationals, remains in effect.
Here is the Guide for Haitians in Immigration Detention that Miami students prepared in December 2011, which explains how to file requests for discretionary release under this policy.
More information about advocacy against deportations to Haiti is available here.
November 30, 2012
Course on the Enforcement of Immigration Law at the Border, May 2013
Two years ago, I began teaching a one-week course on the ways in which immigration law is enforced at the border. The course, which is co-sponsored by the National Center for Border Security and Immigration, is taught the class at the University of Texas at El Paso. Initially opened to students enrolled at Hofstra Law School (my former institution), it was opened last year to any student currently enrolled in law school.
I have agreed to teach the course for Hofstra Law School next May 2013. Lauris Wren of Hofstra will also teach part of the program.
The program is a hybrid of classroom and experiential learning. Half of each day is devoted to discussions of various laws and policies, including issues related to border enforcement by Border Patrol agents; the detention of noncitizens; procedural and substantive issues raised in both immigration courts and federal courts; the exercise of prosecutorial discretion; and role of human rights groups in immigration law.
The other half of the day is spent doing site visits and interacting with various players in immigration enforcement, including Customs and Border Patrol agents, Immigration and Customs Enforcement lawyers, Assistant U.S. Attorneys, immigration judges, and federal judges. Included in the program is a presentation to Border Patrol supervising officers on contemporary cases regarding the scope of the 4th Amendment in immigration enforcement.
We also meet with immigrants' rights lawyers and advocates, including those involved with Annunciation House.
Overall, the program seeks to offer various perspectives of the complexities of immigration law enforcement at the border.
From the Booskshelves: Juan in a Hundred: The Representation of Latinos on Network News by Otto Santa Ana
Latinos constitute the fastest-growing and largest ethnic minority in the United States, yet less than one percent of network news coverage deals with Latinos as the focus of a story. Out of that one percent, even fewer stories are positive in either content or tone. Author of the acclaimed Brown Tide Rising: Metaphors of Latinos in Contemporary American Public Discourse, Otto Santa Ana has completed a comprehensive analysis of this situation, blending quantitative research with semiotic readings and ultimately applying cognitive science and humanist theory to explain the repercussions of this marginal, negative coverage. Santa Ana’s choice of network evening news as the foundation for Juan in a Hundred is significant because that medium is currently the single most authoritative and influential source of opinion-generating content.
In his 2004 research, Santa Ana calculated that among approximately 12,000 stories airing across four networks (ABC, CBS, CNN, NBC), only 118 dealt with Latinos, a ratio that has remained stagnant over the past fifteen years. Examining the content of the stories, from briefs to features, reveals that Latino-tagged events are apparently only broadcast when national politics or human calamity are involved, and even then, the Latino issue is often tangential to a news story as a whole.
On global events involving Latin America, U.S. networks often remain silent while BBC correspondents prepare fully developed, humanizing coverage.
The book concludes by demonstrating how this obscurity and misinformation perpetuate maligned perceptions about Latinos. Santa Ana’s inspiring calls for reform are poised to change the face of network news in America.
Otto Santa Ana is Associate Professor of Chicana/o Studies at UCLA. A sociolinguist and critical discourse analyst. He is the author of the award-winning Brown Tide Rising, which was named Best Book of the Year on Ethnic and Racial Political Ideology by the American Political Science Association.
Sanctuary for Families Opposes Passage Of STEM Jobs ActFrom: Sanctuary for Families:
The following is a statement from Laurel W. Eisner, Executive Director, Sanctuary for Families and Julie Dinnerstein, Co-Director, Immigration Intervention Project, Sanctuary for Families:
“Women immigrants are at risk today as the House of Representatives votes on the STEM Jobs Act. Sanctuary for Families strongly opposes the current version of the Act, which contains a provision that would remove ‘V visa’ safeguards for family members while purporting to facilitate the immigration of scientists, engineers and mathematicians.
The original V visa—available only to those green card family members who began the sponsorship process before December 21, 2000—favored family reunification by giving spouses the ability to live and work in the United States while waiting to get to the front of the immigrant visa line. However, in the Act the House is voting on today, immigrants granted V visas would not be eligible to work, nor be eligible for Social Security Numbers or driver licenses.
This needlessly creates an unprotected class of immigrants invited into the United States without the basic tools of independence. Sanctuary for Families helps thousands of domestic violence survivors and their children build safe lives with a range of high quality services to meet their complex needs. We know just how critical these tools are.
This punitive measure instantly erodes years of work that went into developing legislative amendments meant to protect immigrating family members from harm. We urge House members to vote down today’s bill, and have a serious discussion about how to protect our women immigrants.”
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About Sanctuary for Families
Sanctuary for Families is the leading nonprofit agency in New York State dedicated exclusively to serving domestic violence victims, sex trafficking victims, and their children. Each year, we help thousands of victims and their children build safe lives through a range of high quality services.
Welcome César García Hernández!
We are honored to have César Cuauhtémoc García Hernández blogging with us at ImmigrationProf Blog for the next couple of weeks.
César Cuauhtémoc García Hernández joined the Capital University Law School faculty in 2010 after serving as a visiting assistant professor at the University of Tulsa College of Law and practicing immigration law. His academic interests center on the intersection of criminal law and immigration law ("crImmigration"). He teaches a seminar on the topic and having published articles about the right to counsel, immigration imprisonment, and race-based immigration policing. In addition to teaching a crImmigration seminar, he teaches Criminal Procedure, Immigration and Naturalization, and Torts.
He publishes crImmigration.com, a blog about the convergence of criminal and immigration law. This month, editors of the ABA Journal listed crImmigration.com as one of the 100 best blogs for a legal audience.
Congratulations, César, and welcome! We look forward to reading your posts.
Immigration Article of the Day: Toward Temporal Limits on Mandatory Immigration Detention by Farrin R. Anello
Toward Temporal Limits on Mandatory Immigration Detention by Farrin R. Anello, University of Miami School of Law November 15, 2012
Abstract: The mandatory immigration detention law that Congress passed in 1996 has imposed stark costs on detainees, their families, and the government. Section 236(c) of the Immigration and Nationality Act requires that the Department of Homeland Security take into custody any individual who is removable based upon one of a wide range of offenses. Mandatory detention dissuades many individuals from pursuing even meritorious challenges to removal, since filing applications for relief or appeals prolongs detention. Mandatory detention has also limited the Department of Homeland Security’s discretion in determining whom to detain and has required hundreds of thousands of dollars in appropriations to detain individuals who pose no individualized danger or flight risk. This type of broad, categorical detention is not easily reconciled with the Supreme Court’s decision in Zadvydas v. Davis, which held that indefinite detention under even a discretionary post-final order detention statute was not authorized by statute because it would raise serious due process concerns. Yet just two years later, in Demore v. Kim, the Court rejected an as-applied due process challenge to the mandatory immigration detention statute. In reaching this decision, the Demore court did not engage with well-established jurisprudence on due process and civil detention. Notably, however, the Demore majority expressly distinguished Zadvydas, which is rooted in this body of jurisprudence. In light of its efforts to distinguish Zadvydas, including its emphasis on the “brief” period of pre-removal order mandatory detention, Demore must be viewed as having a very limited holding. This article revisits Demore in light of recent decisions from the Third, Sixth, and Ninth Circuits. To avoid a due process problem, these circuits have construed the mandatory detention statute as not permitting "prolonged" or "unreasonably prolonged" mandatory detention. They have adopted different approaches to determining when detention ceases to be mandatory and a bond hearing becomes required. Based upon civil detention jurisprudence, practical considerations, and an analysis of circuit and district court decisions, I argue that INA section 236(c) should be construed to permit mandatory detention for only six months, after which time a bond hearing should be required.
ACHIEVE Act would bar most youth with criminal historyBy César Cuauhtémoc García Hernández
It’s unlikely that the ACHIEVE Act, the immigration reform proposal introduced by a handful of Republican senators this week, will become more than a blip in the long history of immigration law reform debates, but it’s clear that it reflects a well-trodden tradition of excluding people who have encountered the criminal justice system from receiving immigration benefits. The proposal’s drafters seem to have gone out of their way to exclude almost anyone convicted of a crime from receiving one of the W-1 non-immigrant visas the act would create. Despite this obvious intention, a close reading of the proposed statutory text suggests that they threw the act together rather hurriedly, leaving a great deal of ambiguity to be sorted by immigration lawyers, judges, and government officials if the proposal becomes law.
The proposal’s text explicitly excludes from eligibility anyone who has been convicted of the wide range of offenses that the Immigration and Nationality Act currently renders inadmissible or deportable from the United States. This includes the two major INA provisions listing crime-based removal: the inadmissibility grounds of INA § 212(a)(2) and deportation grounds of INA § 237(a)(2). Importantly, because the ACHIEVE Act simply references inadmissibility under INA § 212(a)(2), among a host of other provisions, some individuals who have not been convicted of a crime are also ineligible—namely, anyone who admits to having committed an offense classified as a crime involving moral turpitude (CIMT), an amorphous categorization that one federal appellate court said lacks “any coherent criteria for determining which crimes fall within that classification and which crimes do not,” Nuñez v. Holder, 594 F.3d 1124, 1130 (9th Cir. 2010), but that has been part of immigration law since 1891. See Immigration Act of March 3, 1891, § 1, ch. 551, 26 Stat. 1084.
Immigration lawyers are well aware that INA §§ 212(a)(2) and 237(a)(2) go a long way to covering all manner of crimes—from the most serious (e.g., murder) to the most trivial (e.g., simple possession of marijuana or passing a bad check). Yet the ACHIEVE Act’s drafters weren’t content with relying on existing crime-based removal mechanisms. Instead, the act would add an additional preclusion for anyone “convicted of a felony, any offense that may be described as a crime of moral turpitude…or a misdemeanor under Federal or State law, punishable by imprisonment for more than 30 days, unless such misdemeanor is the result of a traffic violation that odes not involve the applicant being under the influence of alcohol or any substance listed in Schedule I of the Controlled Substances Act.”
There is a lot to wonder about why this passage is necessary and what it means. First, the existing forms of INA § 212(a)(2) and § 237(a)(2), which the ACHIEVE Act wouldn’t alter, include CIMTs so the act’s earlier reference to those sections seems to do part of what this section repeats—exclude anyone convicted of a CIMT from eligibility for the new W-1 non-immigrant visa.
Second, it’s curious that the act explicitly states that the misdemeanor can be a state or federal misdemeanor, but doesn’t explain what kind of felony it’s referring to. Does this mean that the felony has to be a federal felony? Does it have to be a state felony? I’m skeptical that the proposal’s Republican backers meant to choose one. Instead, this strikes me as nothing more than poor drafting. Unfortunately, if this proposal were enacted into law it wouldn’t be the first time that those of us who deal with immigration law get stuck with a poorly written statute.
On a related note, it’s unclear whether the 31 days imprisonment requirement applies only to misdemeanors or whether a felony conviction also precludes eligibility if the crime was “punishable by imprisonment for more than 30 days.” Intuitively, adding this requirement to the felony conviction basis of ineligibility is redundant since the definition of a felony includes the possibility of imprisonment well in excess of 30 days—usually at least a year. I would be tempted to read the text intuitively if it wasn’t for the text that’s actually used. The 31 days imprisonment clause follows the references to felonies, CIMTs, and misdemeanors. Importantly, the imprisonment clause is set off from the misdemeanor preclusion clause by a comma. This indicates that the drafter’s intended to separate the imprisonment clause from the misdemeanor clause. If the imprisonment clause were meant to restrict the misdemeanor clause only (by precluding eligibility only for people convicted by a misdemeanor that is punishable by more than 30 days imprisonment), then a comma should not separate it. As it’s currently written, though, the punctuation chosen suggests that the imprisonment clause applies to all three preclusion grounds listed—felonies, CIMTs, and misdemeanors.
The reason that this matters isn’t because it casts doubt on whether the 31 days imprisonment clause applies to the felony preclusion. It matters because it leaves some question about whether it applies to the CIMT preclusion. If the imprisonment clause apples to the CIMT preclusion, then an offense that “may be described as” a CIMT bars eligibility for the W-1 nonimmigrant visa only if it carries a potential term of imprisonment of 31 days or more. If the imprisonment clause doesn’t apply to the CIMT preclusion, then all offenses that “may be described as” CIMTs preclude eligibility. A CIMT preclusion bar that requires a certain amount of prison time would reflect the basic structure of INA § 237(a)(2)(A)(i)(II) which provides that a person is deportable if convicted of a CIMT only if the crime carries a sentence of one year or longer. Perhaps the drafters were aware of this and wanted to make sure that some people who are not deportable are nonetheless ineligible for the W-1 visa.
Another odd feature of the act’s text is that it requires conviction of an offense “that may be described as” a CIMT. What’s the “may be described as” mean? That phrase doesn’t appear in INA § 212 or § 237 so we don’t have a ready-made interpretation to apply. More importantly, it seems that this phrase conflicts with the categorical approach and modified categorical approach to statutory interpretation which require that immigration lawyers, judges, and others involved in applying immigration law (such as DHS) figure out whether someone was convicted of a CIMT by examining the statute of conviction or record of conviction. This language in the ACHIEVE Act seems to ask that DHS do less than that. Instead of actually analyzing a crime using the interpretive devices already familiar to us, the act seems to ask DHS to make a ballpark estimate: does the offense look like something that’s a CIMT? Even the Attorney General’s decision in Matter of Silva-Treviño, 24 I&N Dec. 687 (A.G. 2008), doesn’t do that.
The bottom line is that the ACHIEVE Act’s criminal preclusions are obviously broad and poorly worded. If it’s enacted, the end result is a lot of confusion for those of us who spend our days applying or interpreting immigration laws, and a lot of frustration for the countless individuals who have maintained entirely ordinary lives in the United States, including the ordinariness of being convicted of a crime at some point. Of course, it’s unlikely to be enacted. Nonetheless, it suggests what’s to come as Congress contemplates getting serious about immigration law reform next year.
César Cuauhtémoc García Hernández is an assistant professor at Capital University Law School and publisher of crImmigration.com, a blog about the convergence of criminal law and immigration law.
November 29, 2012
Lessons from Criminal Justice Reform for Immigration Detention
Posted by Anil Kalhan
As Rose mentioned, I have been privileged to participate as a moderator and panelist this fall in a terrific series of events convened across the country by Human Rights First, Dialogues on Detention: Applying Lessons from Criminal Justice Reform to the Immigration Detention System. The fourth of these day-long events will be held tomorrow (Friday, November 30) at Loyola University New Orleans Law School. As described on the HRF website:
The Dialogues convene experts, academics, policymakers, practitioners, advocates, and the private bar working in the immigration detention and corrections/criminal justice fields, as well as formerly detained individuals, to share knowledge, experiences, and best practices. We aim to help shift the national conversation on immigration detention, build alliances between stakeholders in both fields, and lay the groundwork for future improvements in policy and practice.
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Although detention in each context occurs under different legal authorities and with different purposes, immigration detention, jails, and prisons together comprise the broader system of mass incarceration in the United States and as such must contend with related concerns. The immigration detention system should not be modeled after the prison system. However, immigration detention stakeholders can learn from the depth of expertise and rich scholarship among criminal justice and prison reform experts. Ultimately, our objective is to secure reforms to the immigration detention system so that immigrants and asylum seekers are not detained unnecessarily and in ways that are inconsistent with human rights standards. [link]
A list of background readings is available here, including a fact sheet on immigration detention in Louisiana. You can also read dispatches from the previous events in Texas, California, and Arizona by HRF Senior Associate Ruthie Epstein, who conceived and organized this event series to follow up on a comprehensive 2011 report documenting a wide range of human rights problems arising from immigration detention.
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In recent years, a growing number of states and localities have undertaken important initiatives to temper the scale and severity of criminal incarceration and pretrial detention, including the expanded use of evidence-based risk assessment tools and alternative forms of pretrial custody; decriminalization of low-level drug offenses; reduction or elimination of sentencing disparities between crack and powder cocaine; elimination of mandatory minimum sentences; expansion of opportunities for earned credit towards periods of imprisonment, parole, and probation; expansion of eligibility for parole by elderly prisoners; and increased use of non-prison sanctions for technical parole and probation violations. Strikingly, despite the longstanding, conventional view that criminal justice reform constitutes one of the many proverbial “third rails” of American politics, many of these initiatives have garnered significant bipartisan support. As David Dagan and Steven Teles write in this month’s issue of Washington Monthly, a growing number of evangelicals and libertarians – perhaps most prominently as part of the Texas Public Policy Foundation’s “Right on Crime” campaign – have joined forces with liberal reformers to advance these initiatives, after “[d]iscovering that the nation’s prison growth is morally objectionable by their own, conservative standards.”the world's prison capital" – Gov. Bobby Jindal signed a series of reforms into law earlier this year that, among other things, grants prosecutors discretion to waive mandatory minimum sentences for non-violent, non-sexual offenders; provides an earlier opportunity for certain non-violent, non-sexual repeat offenders to obtain a parole eligibility hearing; allows certain non-violent offenders sentenced to life imprisonment (including life without parole) an earlier opportunity for release; and expands pilot programs designed to facilitate reentry from prison. Among the arguably unlikely proponents of these reforms was Blueprint Louisiana, a civic organization whose leaders draw extensively from the state’s business community and which evidently concluded that criminal justice reform is important to help make the state’s residents “rightly proud to say, 'I live in Louisiana,’” as the group describes its mission.
For its part, Congress has also adopted bipartisan criminal justice reforms in recent years, enacting both the Prison Rape Elimination Act in 2003 and the Second Chance Act in 2007 with limited if any opposition. Even the Supreme Court has gotten in on the act with its 2011 decision in Brown v. Plata, which upheld by a 5-4 margin a three-judge district court’s order that (notwithstanding the limits imposed by the Prison Litigation Reform Act) California reduce its prison population to remedy conceded Eighth Amendment violations arising from severe prison overcrowding. The Court’s decision was sufficiently significant to prompt Jonathan Simon to contemplate the prospect that it might signal the revitalization of human dignity as a meaningful constitutional value in the United States.
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So how might these criminal justice reform initiatives be instructive for efforts to similarly temper the scale and severity of immigration detention? Whether in the criminal justice system or the immigration enforcement context, incarceration is extremely expensive compared to its alternatives, and to a considerable extent, these reform efforts have been driven by fiscal considerations, particularly in the wake of the financial crisis. For example, in signing Louisiana’s reforms into law, Jindal highlighted their importance in “streamlin[ing]” criminal justice processes and making them “more efficient.” At least to date, however, fiscal considerations have not similarly exercised any gravitational pull upon efforts to reform immigration detention and enforcement, since Congress has proven willing to commit additional enforcement resources largely without regard to cost. (Witness, for example, Rep. Lamar Smith’s comments dismissing altogether the relevance of immigration detention’s extraordinary costs during a hearing last year on his bill to expand prolonged and potentially indefinite detention – and doing so at a moment when debate already had been raging over whether Congress should raise the debt ceiling without exacting major reductions in government programs in return.)
More fundamentally, this emphasis on costs has serious potential limitations. As scholars including Sharon Dolovich have cautioned, reform programs based on fiscal constraints and other practical flaws in the prevailing approaches to mass criminal incarceration may not prove durable insofar as they leave intact the underlying logic and ideology of “exclusion and control” that dominates public discourse and criminal justice practices:
[F]or reductions in the prison population to be sustained over the long term, they must be complemented by the provision of effective drug treatment programs, educational and vocational training for those in custody, and assistance for former prisoners seeking to assemble the components of a stable life on the outside (home, job, drug treatment, family reunification, etc.). Otherwise, it is just as likely that many of the people granted early release will eventually reoffend. And when that happens, so long as the mindset of exclusion and control remains undisturbed, their subsequent offenses will be traced, not to the state’s shortsightedness in releasing people from prison in a worse position than when they went in, but to a willful and deliberate refusal on the part of former prisoners to obey the law—a refusal that may only seem all the more galling because undertaken despite the state’s beneficence in granting early release. Even assuming the present fiscal crisis were to generate a contraction in the carceral apparatus, unless there is a fundamental shift in society’s commitments away from exclusion and control as a matter of principle, this contraction would only last until the economy revives. [link]
The uneven staying power of some recent state experiments with expanding early release from prison, as documented by Cecelia Klingele, offers but one example suggesting that Dolovich’s cautionary note is warranted. And such hazards are no less present with efforts to reform immigration detention and enforcement. Indeed, as I have previously argued, the worthy detention reforms undertaken by the Obama administration since 2009 have been hindered by an analogous failure to dismantle the quasi-punitive logic and institutional practices that have emerged in immigration enforcement over the past two decades. Indeed, quite to the contrary, the administration has only reinforced that underlying logic by expanding quasi-punitive enforcement practices to an even greater extent than its predecessors – leaving the ultimate fate of its important and ambitious detention reform project in considerable doubt.
None of this is to suggest that these reform initiatives are not important simply because they have been triggered by fiscal considerations. Dagan and Teles maintain that these recent shifts in the criminal justice reform agenda rest upon far more than simply budgetary concerns. And Dolovich herself fully acknowledges that these recent reform initiatives are indeed “bright spots” that might eventually contribute to the more fundamental paradigm shift necessary to dismantle, in a more durable manner, what she terms society’s existing “carceral bargain.” In fact, Dagan and Teles go much further, contending that these reform initiatives offer more far-reaching lessons on “how bipartisan policy breakthroughs are still possible in our polarized age” across any number of policy areas.
So advocates of criminal justice reform can certainly regard the present moment as one offering legitimate reasons to be hopeful. But for the reasons to which Dolovich draws attention, it remains deeply uncertain whether these nascent reforms will effect a meaningful, politically viable paradigm shift. Whether they offer potentially transferable lessons for other policy domains, including immigration detention and immigration reform more generally, remains even more so. In a subsequent post, I will offer some very preliminary thoughts on whether the current reckoning over immigration reform by leading Republicans – owing to their self-perception of having fallen off the demographic cliff as a political party during the recent election -- foreshadows the kind of paradigm shift necessary to transform immigration policy, including detention and enforcement, in a durable, politically sustainable way.
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For those of you able to be in New Orleans, I hope to see some of you tomorrow at Loyola. Judging by the earlier events in the series in Texas, California, and Arizona, the conversations tomorrow in New Orleans should be rich and worthwhile. For those of you unable to attend in person, you can follow along and contribute to the dialogue from afar on Twitter, using the hashtag #HRFDetention.
(A version of this post has been cross-posted at Dorf on Law.)
Congratulations Kevin Johnson!
Exciting news! ImmigrationProf Blog Editor Dean Kevin Johnson has been named one of the National Jurist's "25 Most Influential in Legal Education." Here's the link to the article and the list.
Raising Latino Children in an Anti-Immigrant World
A recent article that I co-authored argued that hate crimes against Latino immigrants can be attributred to the hateful rhetoric used in talking about immigrants, immigration, and immigration reform. Jeffrey Kluger in Time reminds us all of some of the less obvious harms of the coarse, hateful, and at times racist speech about immigrants and immigration from Mexico:
"At stake for kids who absorb too much anti-immigrant demagoguery is more than pride in ethnicity, but their deeper sense of self-esteem. It’s not a coincidence that children who grow up in environments in which their own worth — or, just as bad, the worth of kin and clan — is under attack also exhibit higher rates of premature sexuality, drug abuse and criminality. These kinds of behaviors are all ways to try to fit in or make some kind of mark."
A Deported Father Wins a Long, Painful Fight to Keep His Kids
Seth Wessler of Colorlines.com tells the story of a deportee, Felipe Montes, and his fight to keep his U.S. citizen children.Such struggles may not be rare. Last year, a Colorlines.com investigation estimated that there were least 5,000 kids in foster care whose parents were detained or deported. In the first six months of June 2011, the federal government deported 46,000 parents of U.S. citizen kids.
Only in America?
Treatment of Sub-Saharan Migrants in Morocco
I spent this past year in Morocco teaching refugee law and humanitarian law at the University of Mohammad V in Rabat, Morocco on a Fulbright Fellowship. I spent some of my time learning and researching the plight of Sub-Saharan migrants in Morocco. While in Morocco, I met with various non-profit organizations who work with migrants (i.e, Anti-Racist Group to Defend Foreigners and Migrants (GADEM); United Nations High Commissioner for Refugees; and Council of Sub-Saharan Migrants) spoke with Sub-Saharan migrants and went to many conferences on the status of migrants in Morocco. I learned how the lack of human rights protections for undocumented migrants can result in the denial of human dignity for migrants.
Morocco’s legal system does not provide any forms relief for undocumented migrants who desire legalize their status in Morocco. Specifically, even though Morocco has ratified the Convention for the Protection of Refugees it does not have any implementing legislation to protect refugees and permit them to legalize their status. Further, there are the many human rights concerns that Sub-Saharan migrants face while attempting to transit through Morocco.
In September of 2012, fourteen people died in a boat off the coast of Morocco. They were a part of seventy undocumented Sub-Saharan migrants who were attempting to gain entry into Spain. In addition, an activist, Laye Camara, was recently arrested for his activism on behalf of migrants. These incidents raise issues regarding the treatment and human rights status of Sub-Saharan migrants in Morocco. It also raises issues regarding how a developing country should attempt to handle human rights concerns of Sub-Saharan migrants and how the international community should support Morocco’s efforts.
While I was in Morocco, the government’s response to these concerns was to work with the International Office of Migration on a program to repatriate migrants to their home countries and to provide migrants with a stipend upon return to their country of origin. Morocco also has programs with Spain where it receives funds for its youth in order to curb Moroccan citizens’ attempts to migrate to Spain.
Having practiced immigration law in the United States, I faced different and difficult challenges in Morocco as I attempted to navigate meetings with different organizations who provided inconsistent information regarding the types of protections that migrants were afforded. It was also difficult speaking with migrants and learning of the racism they experienced based on the color of their skin in Morocco.
Recently, Morocco has received a lot of negative press around the world for its treatment of Sub-Saharan migrants. Hopefully, the negative press will motivate governmental actors within Morocco to protect the rights of vulnerable undocumented migrants within its borders.
Recent articles on the treatment of migrants in Morocco:
Lawsuit Asserts Unconstitutional Policy Unfairly Targets Young Immigrants
Arizona Governor Jan Brewer
As reported on ImmigrationProf, the state of Arizona, home of the immigration enforcement law known as S.B. 1070 and controversial Maricopa County Sheriff Joe Arpaio, had a peculiarly Arizonan response to the Obama administration's Deferred Action for Childhhood Arrivals (DACA) program. In contrast to the actions of other states, such as California, Arizona Governor Jan Brewer issued an executive order the same day that the administration began accepting DACA applications, barring the state from issuing driver's licenses to noncitizens granted relief under the new program.
In a news release, the ACLU announced that a coalition of civil rights organizations today filed a class-action lawsuit (American Dream Act Coalition v. Brewer) challenging Arizona’s unconstitutional policy denying driver’s licenses to immigrant youth afforded DACA relief. The lawsuit seeks to block the Arizona Executive Order issued after the federal government implemented the DACA program.
The lawsuit was filed on behalf of the Arizona Dream Act Coalition, an immigrant youth-led organization, and five young individuals. The legal team for the plaintiff class includes the the ACLU, ACLU of Arizona, National Immigration Law Center, Mexican American Legal Defense and Education Fund, and Polsinelli Shughart, P.C.
Click here to download the complaint, which alleges federal preemption and Equal Protection claims, in the case.
Temporary Admissions of Nonimmigrants to the United States
Temporary Admissions of Nonimmigrants to the United States By Qingqing Ji and Jeanne Batalova, Migration Policy Institute
Of the 53.1 million nonimmigrant (temporary) admissions to the United States in 2011, 40.6 million were tourist admissions. The number of temporary admissions of nonimmigrants to the United States — tourists, international students, diplomats, or temporary workers — has reached 53.1 million admissions in 2011.
The growth, due in part to more accurate border counts, is largely spurred by a surge in the number of business travelers and tourists — a trend that is expected to continue. Recent presidential initiatives are likely to further increase the number of nonimmigrant admissions in the coming years, with the advent of regulation changes designed to speed the issuance of visas for the growing numbers of international travelers from China and Brazil.
The 287(g) Program: A Flawed and Obsolete Method of Immigration Enforcement
The Immigration Policy Center today releases an updated version of its fact sheet, The 287(g) Program: A Flawed and Obsolete Method of Immigration Enforcement.
Under Section 287(g) of the Immigration and Nationality Act, the Department of Homeland Security (DHS) may deputize selected state and local law enforcement officers to perform the functions of federal immigration agents. Like employees of U.S. Immigration and Customs Enforcement (ICE), so-called “287(g) officers” have access to federal immigration databases, may interrogate and arrest noncitizens believed to have violated federal immigration laws, and may lodge “detainers” against alleged noncitizens held in state or local custody.
According to a letter recently sent to participating law enforcement agencies, ICE is conducting a nationwide review of the program to determine which if any agreements should be renewed after December 31, 2012. The review follows the termination of 287(g) agreements with two agencies—the Maricopa County (Ariz.) Sheriff’s Office and the Alamance County (N.C.) Sheriff’s Office—that the Justice Department found to have engaged in a pattern and practice of constitutional violations, including excessive traffic stops of Latino residents.
This fact sheet provides an overview of how the 287(g) program works, as well as arguments raised by its critics.
25 Finalists Named for Most Influential in Legal Education
National Jurist has named 24 legal educators and one legal education public policy advocate to its 2012 list of the most influential people in legal education. The magazine requested nominations from every law school in the nation and received more than 85. It’s editorial team narrowed the list down to 50 and then asked 350 people in legal education, including every law school dean, to rate each nominee based on how much they influenced them in the past 12 months.
“It was surprising to see both the agitators and the establishment on the list,” said Jack Crittenden, Editor in Chief of the National Jurist. “The list is a who’s who of the people who have shaped the discussion over the past year, which has been a challenging and pivotal year. While some have shaped discussion through traditional means, others have stirred the pot more. But even though there has been much criticism about their means, it is clear that those who spoke up about legal education were heard.”
The finalists will be published in order or influence in the January issue of National Jurist, due on stands at the start of January.
Here is the list in alphabetical order:
Immigration Article of the Day: Sources of International Migration Law by Vincent Chetail
Sources of International Migration Law by Vincent Chetail, Graduate Institute of International and Development Studies November 13, 2012 FOUNDATIONS OF INTERNATIONAL MIGRATION LAW, pp. 56-92, B. Opeskin, R. Perruchoud, J. Redpath-Cross, eds., Cambridge University Press, 2012.
Abstract: Although migration is frequently considered as a matter of domestic jurisdiction, the movement of persons has been internationalized by a complex set of norms. The main sources of international law reveal a relatively dense picture. This chapter reviews the sources of international legal norms that govern migration by examining treaty law, customary law and general principles of law. It concludes by assessing the role of soft law on the traditional sources of international migration law.