Saturday, January 12, 2013
As Bill Hing blogged yesterday, the mother and brother of DREAMer advocate, Erika Andiola, were released yesterday. According to the NY Times (article here), they were released because their cases "contain[ed] some of the elements outlined in the [Immigration and Customs Enforcement's' 'prosecutorial discretion.'" However, they may still be subject to removal from the U.S.
Notably, the article recognized that what helped significantly in this case was Ms. Andiola's use of social media tools - YouTube, emails, and Twitter - to advocate for her mother, highlighting the power of social media in creating social change. It also makes one wonder, as Mariela Hincapie of the National Immigration Law Center noted, about the other cases we do no hear about because many immigrants do not have access to social media advocacy.
Immigration Article of the Day: Response, the Obama Administration, the DREAM Act and the Take Care Clause by Shoba Sivaprasad Wadhia
Response, the Obama Administration, the DREAM Act and the Take Care Clause by Shoba Sivaprasad Wadhia, Pennsylvania State University - Dickinson School of Law, Texas Law Review, Forthcoming
Abstract: This essay responds to “The Obama Administration, the DREAM Act and the Take Care Clause” by Robert J. Delahunty and John C. Yoo. Though I credit Yoo and Delahunty for considering the relationship between the DACA program and the President’s duties under the “Take Care” clause, they miss the mark in at least three ways: 1) Contrary to ignoring immigration enforcement, the Obama Administration has executed the immigration laws faithfully and forcefully; 2) Far from being a new policy that undercuts statutory law, prosecutorial discretion actions like DACA have been pursued by other presidents, and part of the immigration system for at least 35 years; 3) Despite the unsurprising fact that some people who could qualify for the congressionally-created DREAM Act possess the kinds of equities that make them attractive for a prosecutorial discretion program like DACA, it is simply inaccurate to equate the limbo status offered with a grant under DACA to the secure status that attaches to those eligible under the congressional solution known as the DREAM Act. These three points are analyzed in greater detail in this essay. While the DACA program “feels” like something more or greater in scope than previous acts of prosecutorial discretion, the authority being exercised by the agency is no greater or different. It is dangerous to argue that the potential size of the class that stands to benefit from DACA or the greater transparency somehow makes the DACA program legally unsound or different. Conceivably, a future Administration could place a cap on the number of applications that can be approved under DACA but this is a policy question, not a constitutional one.
Friday, January 11, 2013
From the National Immigration Law Center:
In just over 12 hours, we scored a victory for the movement! As you may know, late last night, Immigrations and Customs Enforcement (ICE) raided the home of Arizona DREAM leader Erika Andiola and detained her loving mother, Maria Arreola, and her brother, Heriberto Andiola Arreola. Under Erika’s leadership, NILC and allies immediately sprang into action, and we’re proud to report that Maria and Heriberto have been released from detention.
Erika’s story is, sadly, one that repeats itself hundreds of thousands of times each year. Last night, Erika and her younger brother watched in horror as her mother was handcuffed in front of her children in her own front yard. This is something that an unacceptably high number of immigrant children have had to witness as well.
Although ICE has exercised its prosecutorial discretion to release Erika’s mother and brother, the administration must affirmatively provide administrative relief so the Andiola family can be free of the continued threat of deportation.
Erika is a beloved leader in the immigrants’ rights community, which mobilized quickly to demand that ICE release Erika’s family. However, this is not the case for so many others: Tens of thousands of immigrants are simply swept away without anyone ever learning about it and often without the opportunity to even go before an immigration judge.
President Obama and Congress have rightly stated that they will work to create an immigration process for aspiring Americans. However, until that process is in place, President Obama must stop these inhumane detentions and deportations. Using federal resources to tear loved ones apart is neither in the best interests of our families nor our government, and President Obama should abandon policies that separate families now.
We all know we need to fix the immigration system. The Andiola family’s horrific experience brings home the reality that the promise of immigration reform is not enough. We cannot continue to fight these broken policies one Dreamer at a time, one worker at a time, one family at a time. We need both administrative and legislative action now.
Join us over the next few weeks and months to demand that we curb our nation’s appetite for deporting workers, students, and parents. Together, we can secure justice and equality for all.
National Immigration Law Center
Yale Law School announced a few days ago that immigration and constitutional legal scholar, Cristina Rodríguez, has joined the Yale Law School faculty effective January 28, 2013. Notably, Cristina is the first Latino/a tenured member of the faculty. Congratulations, Cristina and YLS!
Ken Nagel thought it would be no problem to hire his daughter at his Phoenix restaurant. He had not considered that Arizona’s new employment verification system, E-Verify, would deem her ineligible to work. E-Verify, which attempts to screen out unauthorized immigrants by checking employees against federal databases, failed his daughter, a U.S. citizen. “It was just another frustration,” Nagel told The Arizona Republic.
Despite its problems, Congress and the president will consider a national E-Verify mandate in immigration reform proposals this spring. President Obama called for “a system to give employers a reliable way to verify that their employees are here legally.” But E-Verify is not reliable and shifts enforcement costs onto citizens.
According to E-Verify’s government audit, a national mandate would deem 1.2 million to 3.5 million legal employees, like Ken Nagel’s daughter, initially ineligible to work. In 2008, Intel, the computer chip maker, put its new employees through E-Verify and 12 percent were declared ineligible. A firm representative told officials that resolving the errors took a “significant investment of time and money, lost productivity and many hours of confusion, worry and upset.” Read more...
Family Unity and Immigration Reform: An Inclusive State Advocacy Agenda Considers Rights of Both Parents and Children
Conversations among advocacy groups nationwide are gaining momentum in anticipation of the agenda for the 113th Congress. Based on information from a recent conference call among advocates, a critical mass of attention is centering on family unity and affording rights to immigrant children and parents through immigration reform efforts. At the heart of the priorities being discussed is a dual focus on both the rights of parents and children, the latter often taken for granted at the expense of the former.
At times in tension and aligned, the rights of children and parents intersect in unique ways when looking at potential reform efforts on the horizon. Two important pieces of scholarship are must-reads for anyone seeking to engage in a thoughtful consideration of immigration enforcement policies that balance the two. Bridgette Carr (UMich) urges immigration enforcement, including immigration courts, to adopt the well-known family law standard of the “best interests of the child” when a parent or child is in removal proceedings. David Thronson (MSU) articulates a systemic devaluation of the rights of children in family courts and in immigration proceedings and identifies several of the tensions between family integrity and the operation of immigration and nationality laws.
What is exciting about the momentum around this issue in this moment is that advocates are successfully addressing these issues at the state and local levels. Because child custody matters are usually handled by state family courts and in child dependency proceedings, and because child protective services (a state agency) often plays the most critical role of determining whether and how to reunite parents with their children, the state has begun to address this issue at the same time that the federal government is determining its legislative priorities. Arguably, with enforcement carrying the largest price tag for the federal government, and with the skyrocketing expense on the child welfare system from the separation of families being a function of enforcement efforts, directing federal dollars to the state functions that regulate family relationships would be cost-saving for both federal and state governments.
Current state-based efforts to preserve family unity include successful amendments to existing child welfare and law enforcement statutes to specifically protect immigrant families of undocumented or mixed immigration status. Recent successes in California (posted in detail in a previous post here) to expand the rights of immigrant parents post-arrest and to better equip the child welfare system in assisting immigrant children and parents have encouraged other states to identify creative solutions. Florida has created state-funded, legal immigration consultation services for court staff to help them sort out dependency cases involving immigration complications.
And most recently, following its new legislation affording undocumented immigrants the ability to obtain a driver’s license, Illinois is considering legislation patterned after the California bills to assist parents post-arrest and keep children out of the child welfare system by empowering child protective services to place the children with their next-of-kin or a family friend. Similar efforts in New York are currently planned for this legislative session.
By focusing both on the rights of parents (expanding right to communication post-arrest and allowing placement of the children with next-of-kin or friend of the parent, whether or not they are documented) and the rights of the child (lengthening the time for placement and requiring child protective services to screen undocumented children for possible immigration relief), these state efforts are creating the momentum for more family-focused immigration reforms that consider both the rights of children and parents.
-- Sarah Rogerson
Immigration Article of the Day: Emigration: The Continuing Life of Invalid Deportation Orders by Richard Frankel
Emigration: The Continuing Life of Invalid Deportation Orders by Richard Frankel Drexel University - Earle Mack School of Law, Southern Methodist University Law Review, Vol. 65, p. 503, 2012
Abstract: Federal appeals courts overturn more than one thousand deportation orders every year. A significant number of those reversals involve non-citizens who are abroad because they have been deported as a result of losing their cases at the administrative level. Although an order overturning a deportation order ordinarily restores non-citizens to their prior status of being lawfully present in the United States, federal immigration authorities have used the fact of the non-citizen’s now-invalidated deportation to subject such non-citizens to a new and previously inapplicable set of standards that effectively prevents them from returning. Under this practice, non-citizens who seek to return after winning from abroad are treated as “arriving aliens,” meaning that because they are now outside the United States, the government can keep them out, even if they never should have been removed in the first place. Neither courts nor scholars have addressed the lawfulness of applying the law’s more stringent “arriving alien” standards to non-citizens who prevail from abroad rather than the more lenient “deportability” standards that apply prior to the non-citizen’s removal. This Article examines the competing arguments for and against the government’s practice and concludes that relying on non-citizens’ wrongful deportations to apply new rules that keep non-citizens from returning deprives them of meaningful judicial review of their deportation orders in violation of both federal immigration law and the U.S. Constitution. Instead, requiring the government to apply the same “deportability” standards throughout a noncitizen’s removal proceedings will best ensure that erroneously deported individuals are permitted to reenter the United States, reunite with their families, and resume their lives as they existed prior to their removal.
Thursday, January 10, 2013
Geoffrey A. Hoffman, Clinical Associate Professor, Director, University of Houston Immigration Clinic
Recently, CNN commentator and British citizen Piers Morgan has been the subject of a White House petition to deport him. The cascade of petitioners, now numbering more than 100,000, is troubling. A person’s exercise of free speech is not something that should lead to a threat of deportation. More than that, a non-citizen may not be deported based merely upon the desires of 10,000, 100,000, or even a million angry petitioners. Deportation may only be based on some valid, legal basis.
As a non-citizen lawfully present in the U.S., Mr. Morgan is entitled to due process, a point which may surprise many. Due process means he has to be served with notice in a particular way and be advised of the ground of removal. He is entitled to present evidence, witnesses in his defense, and argue for relief from removal if any exist.
What does calling for someone’s “deportation” - even a deportation with no valid basis- say about us as a nation? The First Amendment protects even probing foreign journalists and especially dissenters. Calling for one’s expulsion at a time of tragedy is one way to discipline those who profess unpopular ideas. Focusing on a non-citizen’s opinions in especially pernicious because it does two things: it seeks to expel the offending person’s views from the marketplace of ideas, but also, more importantly, shifts discussion away from the truly important issues underlying the tragedy in Connecticut: gun control. There is no valid ground for deportation which exists against Mr. Morgan. It is interesting that the voices which have now coalesced in support of his deportation have succumbed to a false assumption: that the federal government can be persuaded to exercise its extraordinary power to rid the polity of someone who has said something controversial or at odds with a special-interest group. This assumption is unsound.
The exercise of the federal deportation power which is the exclusive province of Congress and the executive branch in such a manner would be tantamount to unlawful and discriminatory “selective prosecution.” In a famous case, Reno v. AADC, 525 U.S. 471 (1999), the Supreme Court has stated that although there may be no Constitutional right to bring a selective prosecution case in the immigration context, the door was left open to such a claim where the basis for the alleged discrimination is “outrageous.” In this case, to enforce the immigration laws against Mr. Morgan for the exercise of his free speech rights would be “outrageous” in the way conceived of by Justice Scalia in his opinion in Reno v. AADC.
It concerns me deeply that as a polity we can envision the use of deportation in such a way with little analysis about the misuse of such power and no appreciation of the effects that such a proposed use would have on other parts of our Constitution and the Bill of Rights. The First Amendment should not be trampled upon because the federal government has been imbued with other equally important powers, such as those over immigration and foreign affairs. To go down this road is dangerous and corrosive. While Mr. Morgan, a journalist and CNN celebrity, may not be fazed, all our rights are diminished if free speech can be subjected to the chilling effects of threatened deportation against those among us who espouse controversial or dissenting views.
UPDATE (Jan. 11): The White House responded to the petition to deport Piers Morgan by emphasizing his First Amendment rights to speak on gun control.
Immigration Article of the Day: The Muslim 'Veil' Post-9/11: Rethinking Women's Rights and Leadership by Sahar F. Aziz
The Muslim 'Veil' Post-9/11: Rethinking Women's Rights and Leadership by Sahar F. Aziz, Texas Wesleyan University School of Law 2012 Institute for Social Policy and Understanding Policy Brief, November 2012
Abstract: Whether guilty by association through her marriage to a presumed terrorist or an active accomplice in secret plots to terrorize Americans, some headscarved Muslim women are perceived as incapable of developing their own beliefs and protestations. Instead, they are viewed as mere extensions of familial relationships with actual or presumed male terrorists. As national security prerogatives filter perceptions of Muslims through the prism of terrorism, the Muslim “veil” has become a stereotyped symbol of terror. This critical shift in perception results in palpable adverse consequences for a Muslim woman’s freedom of religion, freedom of individual expression, and physical safety. In large part, this shift in meaning is due to a recasting of Islam as a political ideology as opposed to a religion. Once this definitional shift occurs, acts that would otherwise qualify as actionable religious discrimination are accepted as legitimate, facially neutral national security law enforcement measures, or protected political activity by private actors. Recasting thus serves as the basis for calls to deny Muslims their rights, all of which are protected under the law. Moreover, mundane religious accommodation cases become evidence of stealth, imperialistic designs of a hostile ideology. Contrary to the United States’ traditional deference to religious precepts in personal affairs, opponents of mosque construction and Muslim religious accommodation dismiss religious freedom for Muslims as inapplicable by focusing on extremist Muslims to shift the debate to Islam’s alleged pathological violence. The shift in symbolism of the headscarf results in two notable outcomes. First and foremost, Muslim women continue to be objectified within a larger conflict of ideas among predominantly male decision makers. Heated national security debates about the emergence of “homegrown terrorism,” now code for domestic Muslim terrorists, focus primarily on persecuting or defending male suspects. Stereotypes of the dark-skinned, bearded, Muslim man as representative of the primary threat to national security consume the (predominantly male) government’s anxious attempts to prevent the next terrorist attack. Sparse attention is paid to the impact of the post-9/11 national security era on Muslim women, and specifically on those who wear a headscarf. Irrespective of their place of origin or skin color, the headscarf “marks” women as sympathetic to the enemy, presumptively disloyal, and forever foreign. Further objectifying Muslim women are the predominantly male Muslim spokespersons responding to the polemical, as well as physical, attacks on American Muslims. Notwithstanding that the headscarved woman equally bears the brunt of the government’s harsh counterterrorism tactics and the public’s distrust of Muslims, her voice and perspectives are insufficiently represented in the discourse. Yet again she finds herself an object within a grander political conflict between two patriarchies that are different in form but similar in substance. Second, any meaningful discourse surrounding a woman’s right to wear a headscarf in this country must include the racial subtext of the “terrorist other” associated with her headscarf. Debates about her legal right to do so inadequately analyze the issues through the narrow lens of religious freedom, while, post-9/11, the headscarf has come to symbolize more than a mere piece of cloth worn by a religious minority seeking religious accommodation. It is a visible “marker” of her membership in a suspect group. Thus the label “Muslim” is both a religious, racial and ethnic identifier. The shift in symbolism of the “veil” from subjugation to terror(ism) causes palpable discrimination against Muslim women. Indeed, accusations of terrorism and disloyalty accompany many of the documented cases of discrimination that they face. Gone are the days when the worst a Muslim woman could expect were patronizing and condescending allegations about her oppressive religion or wife-beating husband. Now she may need to worry about her own and her family’s physical safety, her ability to obtain employment, and the government’s harsh prosecutorial tactics. Many of them also suffer tangible economic harm via termination and demotion because they choose to wear the headscarf. In a country that promotes the economic independence of women as a means of preserving their legal and political rights, some Muslim women are forced to forfeit their right to practice their faith in their preferred manner in order to preserve their economic independence and the corresponding benefits. As the costs of wearing the headscarf become prohibitively high, the legal right to wear it rings hollow.
Wednesday, January 9, 2013
Abstract: Immigration enforcement is increasingly integrated with local policing. This trend accelerated four years ago when the federal government launched “Secure Communities,” a program designed to check the immigration status of every person arrested by local police. The government views the program as an innovation that enhances the efficacy of crime control and immigration enforcement, while civil rights groups have decried it as an invitation to racial profiling by local police. This paper, part of a larger project providing the first large-scale empirical evaluation of Secure Communities, uses the pattern of the program’s activation to explore a central feature of criminal and administrative law that rarely lends itself to empirical examination — the role of discretion in policing. Constrained by limited resources, the agency staggered the program’s activation across counties, revealing the federal government’s priorities for implementation in the face of competing political and programmatic incentives. The data undercut the government’s claims that the program is all about making communities more secure from crime. Moreover, the fact that early activation in the program correlates strongly with whether a county has a large Hispanic population raises important questions about demographic profiling in immigration enforcement.
The Palmetto Public Record broke an immigration story that has gone national. Taco Cid, a Mexican restaurant in South Carolina, is hawking T-shirts depicting “how to catch an illegal immigrant” — with traps using tacos as bait.
Photo courtesy of the Palmetto Public Record
Note that the letters on the shirt are colored with the red, white and green of the Mexican flag.
In response to the controversy, Taco Cid updated its website: ”Our t-shirts were created as a witty and comical statement regarding ILLEGAL immigrants,” the statement reads. “There are NO racial nor hate remarks towards any specific ethnic group.”
South Carolina has seen an uptick in Mexican migration over the last 20 years. Last November, a federal court enjoined key provisions of the state's immigration enforcement law, which copied similar laws passed in Arizona, Alabama, and other states.
Tuesday, January 8, 2013
Arguably the most important item immigration reformers hope to solve is the presence of over 11 million people who live in the country without papers, and thus often without access to the benefits and responsibilities of legal residency or citizenship, but with the threat of deportation and exploitation by employers. Lawmakers intend to legalize at least some undocumented immigrants.
But what legalization will look like is entirely up for debate.
First and foremost, there’s a question of whether the path to legalization will lead ultimately to citizenship or, instead, some kind of extended residency.
Advocates for an expansive citizenship program note that more Latino, Asian, Caribbean and other citizens of color equal more voters who tend to vote Democrat, which Republicans have cause to resist. Indeed, in November, Republicans introduced a bill they called the Achieve Act, a GOP alternative to the DREAM Act. The bill, which didn’t become law, would have granted legal status but no path to citizenship to undocumented young people. Republicans could push a broader legalization bill that similarly denies access to citizenship.
Democrats are unlikely to put their weight behind a legalization plan that does not include some route to citizenship. And insiders say that at least in the opening gambits from the White House and the bi-partisan Senate group, proposals will include a path to citizenship. “Legalization with a path to citizenship is not all that controversial,” the Democratic aide told me about the initial deliberations.
Even the most expansive immigration legalization plan would not create a path for all of the 11 million undocumented immigrants in the U.S. Those who have been deported in the past and returned to the country will almost certainly be excluded, as will immigrants who’ve been convicted of felonies and some misdemeanors.
Congress could create a path to citizenship only for a limited group of immigrants, like the DREAMers, for example. Likewise, if lawmakers do legislate a citizenship plan, they’ll have to construct the path—and the length and treachery of the journey to citizenship matters. In past proposals for immigration reform, legislators have put forward plans in which it would take up to a decade to gain citizenship. In other iterations, the process has been tied to steady employment. Advocates note that in this time of high joblessness and unsteady work, that’s something of a set up for failure.
Though most conversations about immigration reform focus on undocumented immigrants who are already here, lawmakers are also grappling with what to do about those who want to come in the future, or the so-called “future flow.”
“A future flow program is probably most controversial part right now,” the Democratic aide said.
New immigrants tend to be treated as two distinct groups: high-skilled and low-skilled. Most agree that “high-skilled” and often “higher-wage” workers should be allowed in. In November, Republicans in the House passed the STEM Jobs Act, which would have granted permanent residency to immigrants who receive masters and doctorate degrees from U.S. universities in the sciences. The bill aligned with Obama’s own desire, offered in last year’s debates, to try to keep well-educated foreigners in the U.S., rather than sending them “home to invent new products and create new jobs somewhere else.”
But the bill died in the Senate because in order to make room for the new visas it would have cut spots in the Diversity Immigrant Visa Program, a lottery system that tends to help lower-skilled immigrants, largely from African nations. Democrats were unwilling to make such a trade.
This Democratic reticence aside, generosity toward low-skilled immigrants has not been a feature of American immigration law. The heftiest piece of the future flow is the question of temporary workers, or guest workers. Each year hundreds of thousands enter the country on temporary visas to work in hotels, construction sites, factories, and food processing plants.
They’re often subjected to sub-par labor conditions and lack strong workplace protections. Unions, immigrant rights advocates and many Democrats say that is because the current structure of guest worker programs ties visas to having and keeping a job.
“Workers are tied to one employer in terms of their visa and as soon as they are no longer employed, they are deportable,” said Saket Soni, director of the National Guestworker Alliance. “They are legal only as long they comply with their employer. That’s the fundamental rule of the game.”
Many argue that guest worker programs like the one that exists should be replaced with a system that puts the ownership of visas in immigrants’ hands, not in those of employers. But business interests push back, arguing that the guest worker program is vital to the health of the small business economy. Some business owners and their representatives like the Chamber of Commerce say there simply are not enough U.S. workers who want the jobs and the businesses require a contingent work force to fill labor needs.
“It comes down to a back and forth between business and labor,” said the Democratic aide.
For years, conservatives have insisted that they won’t back legalization unless the border is secure, immigrants who break the law are deported and employers who hire undocumented immigrants are punished.
Democrats have arleady agreed to this equation in large part. As such, the Obama administration has expanded deportation programs, built new immigration detention centers, and sent thousands more border patrol agents and National Guard troops to the Southwest.
Yet at least until the elections, Republicans continued to argue that these enforcement actions are not enough. The GOP platform in August accused the administration of “undermin[ing] the rule of law at every turn” and “fail[ing] to enforce the legal means for workers or employers who want to operate within the law.”
Whether the Obama administration’s track record on enforcement—1.5 million deportations in four years—will keep these accusations at bay is not clear. Insiders say we’re likely to see at least some additional enforcement provisions in early legislative proposals.
“I think there’ll be some [more] border enforcement,” the Democratic aide told me. “I’m hopeful more interior enforcement will be limited.”
Most close observers agree that the leading proposals will include a mandatory system for employers to check the immigration status of job applicants. E-verify, the existing program to do this, which is not federally mandated for private employers, checks job applicants against government employment eligibility records to make sure new hires have permission to work. Some Democrats, including leading immigration reformer Sen. Chuck Schumer of New York and a member of the “gang of eight,” have been adamant supporters of programs to keep employer-hiring practices in check.
“Mandatory E-verify will almost definitely be part of the proposal,” said Marielena Hincapie, director of the National Immigrant Law Project, a leading advocate for immigration reform that also opposes the employment check system. “The conversation so far on the Hill and at the White House is if there’s to be any kind of road to citizenship for the 11 million, one of the major things that Republicans want to bargain is mandatory E-verify.”
Beyond E-verify, the initial guidelines may require all U.S. citizens and all legal immigrants to obtain what’s come to be called a “biometric ID card.” When Schumer teamed with Sen. Lindsey Graham, a South Carolina Republican, to issue a blueprint for immigration reform in 2010, they wrote, “We would require all U.S. citizens and legal immigrants who want jobs to obtain a high-tech, fraud-proof Social Security card.”
Civil libertarians caution that the system is tantamount to a national ID card and raises the prospect of rights violations.
“In America, I am allowed to walk around unmolested,” said ACLU legislative counsel Chris Calabrese. “A card like this that’s linked to citizenship changes that dramatically.”
Beyond the three legs of legislation—legalization, future flow, and enforcement—advocates for immigrants and progressive lawmakers are calling for more fairness in the deportation process and more attention to the needs of families.
Meanwhile, the Congressional Hispanic Caucus released a set of core principals for immigration reform that includes demands that the law, “Protects the unity and sanctity of the family, including the families of bi-national, same-sex couples.” Republicans are likely to put up a fight against the inclusion of gay and lesbian couple as part of reforms to family-based immigration policy.
While the GOP had the fear of the new grassroots struck into it on Election Day, they’re aftershock-driven declarations of support for immigration reform may be temporary. And the 113th Congress could push legislation so far to the right that Democrats are unwilling to support it. What’s clear is there’s a mighty fight ahead.
Immigration Article of the Day: "When Legal Worlds Collide: An Exploration of What Happens When EU Free Movement Law Meets UK Immigration Law" by JO SHAW and NINA MILLER
"When Legal Worlds Collide: An Exploration of What Happens When EU Free Movement Law Meets UK Immigration Law" European Law Review, April 2013 JO SHAW, University of Edinburgh, and NINA MILLER, University of Edinburgh - School of Law
This article explores the interactions between the EU rules on the free movement of persons and the institutions and legal structures of UK immigration law, by providing a case study of the implementation of EU free movement rules in the UK in relation to immigration-related questions such as first entry and residence, stability of residence and family reunion. The research is based on the analysis of both legal doctrine and interview data. The narrow conclusion of the article is that adversarial relationships between the various stakeholders have arisen in this domain, and may hinder the effective application of EU law. In some fields, there has been a consistent failure to apply the correct EU principles at the national level, especially on the part of the UK Border Agency. The broader conclusion concerns the capacity of this type of contextualised analysis to provider richer comparisons between legal sectors and Member States, offering a more nuanced view of how the worlds of EU law and national law intersect.
Infographic: Setting the Record Straight on Immigration and Border Enforcement
By Marshall Fitz and Philip E. Wolgin
One of the most common refrains voiced by opponents of immigration reform is that it must wait until the federal government has secured our border with Mexico and enforced the nation’s current immigration laws. Ten years ago those claims carried some force. At the time, there had been large-scale undocumented migration for a sustained period, the border was relatively porous, and immigration enforcement in the country was less organized than it could have been. Ten years later, however, the facts on the ground have changed dramatically.
The fact of the matter is that the border is more secure now than it has ever been. And yet some members of Congress continue to insist that the border is unsafe, and as such, that they will hold immigration reform hostage until we have secured the border. To combat a lack of understanding, this infographic attempts to shine a light on the current state of immigration and border enforcement. Read more....
Monday, January 7, 2013
Immigration Article of the Day: "Birthright Citizenship, Undocumented Immigrants and the Slavery Analogy" by LINDA S. BOSNIAK
"Birthright Citizenship, Undocumented Immigrants and the Slavery Analogy" by LINDA S. BOSNIAK, Rutgers University School of Law, Camden
The current controversy over territorial birthright citizenship in the United States links unauthorized immigration with slavery. Where ever one stands on birthright citizenship for US-born children of undocumented immigrants, everyone recognizes that the controlling legal standard was enunciated in the Fourteenth Amendment’s Citizenship Clause – itself a response to the iconic Dred Scott decision denying that people of African descent were, or could ever be, citizens. The jus soli rule in the U.S. has an earlier common law provenance, but because it was explicitly constitutionalized in the wake of the slavery conflict, the fate and meaning of today’s birthright citizenship controversy in the U. S. is necessarily refracted through the nation’s slavery experience. Certainly, disagreements abound about what exactly the Citizenship Clause has to say about extending citizenship to children born in the US of unauthorized immigrants, but the debates take as given that our current discussions over assignment of territorial birthright citizenship issue from the Fourteenth Amendment, thereby traversing the ground of the nation’s struggle over slavery and its aftermath. This geneology distinguishes the birthright citizenship controversy in the United States from debates on the subject in other national settings. In Ireland, for example – a country which recently eliminated birthright citizenship by constitutional amendment – a history of slavery does not figure as specific horizon or constraint. But other than recognizing the particular path dependency of the debate, what do we take from this fact? What is the significance of this historical sequencing? Are the institutions of slavery relevant to the current birthright citizenship debate in any internal, analytical sense? In other words, is their convergence by way of the Citizenship Clause simply a temporal happenstance which now distracts rather than enlightens, or does the slavery question represent something which – analytically and normatively – properly informs our approach to the citizenship question today? This essay is part of larger project on the specific nature of undocumented alien status in the liberal democratic polity.
"This month, we rededicate ourselves to stopping one of the greatest human rights abuses of our time. Around the world, millions of men, women, and children are bought, sold, beaten, and abused, locked in compelled service and hidden in darkness. They toil in factories and fields; in brothels and sweatshops; at sea, abroad, and at home. They are the victims of human trafficking—a crime that amounts to modern-day slavery.
As Americans, we have long rejected such cruelty. We have recognized it as a debasement of our common humanity and an affront to the principles we cherish. And for more than a century, we have made it a national mission to bring slavery and human trafficking to an end.
My Administration has been deeply committed to carrying this legacy forward—beginning with trafficking that happens on our own shores. We have strengthened protections so all workers know their rights, expanded efforts to identify and serve domestic victims, devoted new resources to dismantling trafficking networks, and put more traffickers behind bars than ever before. In the months ahead, we will continue to take action by empowering investigators and law enforcement with the training they need, and by engaging businesses, advocates, and students in developing cutting-edge tools people can use to stay safe. We will invest in helping trafficking victims rebuild their lives. And as one of the world’s largest purchasers of goods and services, the Federal Government will keep leading by example, further strengthening protections to help ensure that American tax dollars never support forced labor.
Our commitment to stopping human trafficking does not end at our borders. As a leader in the global movement to combat this scourge, the United States has renewed sanctions on governments that harbor the worst offenders. We have partnered with groups around the world to help men, women, and children escape their abusers. And recognizing that no country can meet this challenge alone, we have aided others in addressing modern slavery’s root causes, and encouraged nations across the globe to pass comprehensive anti-trafficking laws, enforce them rigorously, and care for survivors.
We know the road ahead is long, and change will not come easily. But as we renew our pledge to erase modern forms of slavery from the face of this earth, let us also draw strength from the movements of the past. We recall the words of the Emancipation Proclamation—that every life saved is ‘‘an act of justice,’’ worthy of ‘‘the considerate judgment of mankind, and the gracious favor of an Almighty God.’’ We reflect on the Amendment that wrote abolition into law, the decades of struggle to make its promise real, and the Universal Declaration of Human Rights that has drawn nations together in the pursuit of equality and justice. These achievements once seemed impossible—but on this day, let us remember that they were not, and let us press on toward the future we know is possible.
NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim January 2013 as National Slavery and Human Trafficking Prevention Month, culminating in the annual celebration of National Freedom Day on February 1. I call upon businesses, organizations, faith-based groups, families, and all Americans to recognize the vital role we can play in ending all forms of slavery and to observe this month with appropriate programs and activities."
This story from the Washington Post by Nick Miroff evaluates this possibility.
It should not be a surprise to readers of this blog that the Obama administration has made immigration its highest law enforcement priority, according to a report released today by the Migration Policy Institute. One of the authors of the report is Doris Meissner, former Commissioner of the Immigration and Naturalization Service. Other co-authors include Donald M. Kerwin, Muzaffar Chishti, and Claire Bergeron.
The federal government spent nearly $18 billion in immigration enforcement in fiscal year 2012, an amount approximately 24 percent higher than the combined spending on all other federal law enforcement agencies including the FBI, the Drug Enforcement Administration and the Secret Service.
The fact is that our borders are much safer and better monitored that they have been in decades. Unprecedented manpower, infrastructure and technology deployed in the last ten years for border security efforts led to a drop in apprehensions at the Southwest border to a level not seen since the 1970s. The plunge in apprehension is widely viewed as an indication that fewer immigrants are crossing illegally into the U.S.
An "infographic" released today by the Center for American Progress researches similar conclusions.
• Net undocumented migration is now at or below zero.
• The number of people apprehended crossing the border has decreased, even as border agents now patrol every single mile of the border every day and in many places have 100 percent eyes on the border—meaning that they can view nearly all attempts to cross the border in real time.
• Annual deportations have reached historic levels.
• There are more “boots on the ground” at the border than there have ever been in history.
For more on the increase in immigration enforcement, click here.