February 16, 2013
Immigration Article of the Day: Ethical Advocacy for Immigrant Survivors of Family Crisis by Theodor S. Liebmann
Ethical Advocacy for Immigrant Survivors of Family Crisis by Theodor S. Liebmann , Hofstra University - Maurice A. Deane School of Law November 30, 2012 50 Fam. Ct. Rev. 650 (October 2012)
Abstract: The involvement of family courts in the lives of youth and families creates significant opportunities for advocates to assist their clients with immigration-related issues. Informed and effective advocacy on these issues in family court can make lifechanging, and even life-saving, differences for immigrants. More specifically, immigration issues are germane to family court because certain vital avenues of immigration relief available to survivors of abuse, neglect, abandonment, and other forms of family crisis explicitly depend on findings, orders, and certifications that are issued in the context of family court proceedings. After describing these forms of relief, and the family court’s role in immigrants’ access to them, this essay analyzes how ethical mandates related to client counseling, representational goals, and competence affirmatively require family court practitioners to provide advice and advocacy related to these collateral benefits to family court proceedings.
Key Points for Family Court Community:
• The involvement of family courts in the lives of youth and families creates significant opportunities for advocates to assist their clients with immigration-related issues
• Certain vital avenues of immigration relief available to survivors of abuse, neglect, abandonment, and other forms of family crisis explicitly depend on findings, orders, and certifications that are issued in the context of family court proceedings
• The substance of immigration-related findings in family court, and their ultimate affect on family stability, are consistent with the core family court goal of supporting safety, well-being, and permanency for children and families
• Ethical mandates related to client counseling, representational goals, and competence affirmatively require family court practitioners to provide advice and advocacy related to these collateral benefits to family court proceedings.
February 15, 2013
Bibles, Badges & Business for Immigration Reform
In order to build momentum and increase collaboration, the new nationanal network Bibles, Badges & Business for Immigration Reform "Bibles, Badges and Business for Immigration Reform" (BBB) has been formed. It is a national network of faith, law enforcement and business leaders working together to educate and support members of Congress. 2013 presents a major opportunity for immigration reform, and this rising network of allies will become a driving force in the renewed effort.
From the Bookshelves: Presidents and Civil Liberties from Wilson to Obama A Story of Poor Custodiansby Samuel Walker
This book is a history of the civil liberties records of American presidents from Woodrow Wilson to Barack Obama. It examines the full range of civil liberties issues: First Amendment rights of freedom of speech, press, and assembly; due process; equal protection, including racial justice, women's rights, and lesbian and gay rights; privacy rights, including reproductive freedom; and national security issues. The book argues that presidents have not protected or advanced civil liberties, and that several have perpetrated some of worst violations. Some Democratic presidents (Wilson and Roosevelt), moreover, have violated civil liberties as badly as some Republican presidents (Nixon and Bush). This is the first book to examine the full civil liberties records of each president (thus, placing a president's record on civil rights with his record on national security issues), and also to compare the performance on particular issues of all the presidents covered.
UC student takes Dream Act case to YouTube
Obama Administration Focuses on Minor Crimes to Boost Removal Numbers, Set Records, Show Its Commitment to Enforcement
U.S. immigration officials laid out plans last year that would ratchet up expulsions of immigrants convicted of minor crimes as part of an urgent push to make sure the government would not fall short of its criminal deportation targets, new records obtained by USA TODAY show. This is not surprising in light of the Obama administration's aggressive pursuit of deportation records. This administration in four years deported more immigrants than any administration in U.S. history.
Grassroots Leadership further reports on USA Today's article highlighting Immigration and Customs Enforcement's effort to increase the number of deportations through aggressive enforcement mechanisms. Internal emails at the agency showed that ICE agents "were trolling state driver's license records for information about foreign-born applicants, dispatching U.S. Immigration and Customs Enforcement (ICE) agents to traffic safety checkpoints conducted by police departments, and processing more illegal immigrants who had been booked into jails for low-level offenses." The former official whose emails are heavily quoted in the article is now the Executive Vice President for Corporate Development at GEO Group, a private prison corporation that heavily depends on federal immigration contracts.
New National and State Estimates of America’s Unauthorized Immigrant Population
The International Migration Review (IMR) today published a study with new estimates of the unauthorized immigrant population. The report, titled Unauthorized Immigration to the United States: Annual Estimates and Components of Change, by State, 1990 to 2010, is co-authored by Robert Warren, former demographer for the US Immigration and Naturalization Service (INS), and John Robert Warren, professor of sociology at the University of Minnesota.
The report estimates that the number of unauthorized immigrants arriving in the U.S. peaked at more than one million annually between 1999 and 2001, and then declined rapidly thereafter. The number leaving the population steadily increased over these years. It also finds that:
The total number of unauthorized immigrants in the United States was about 11.7 million in January 2010, about 4 million higher than it was in 2000. However, the United States lost more unauthorized immigrants than it gained in both 2008 and 2009. In January 2010, nearly 3 million unauthorized immigrants --- about 25 percent of the nation’s total --- resided in California.
Near two-thirds of all unauthorized immigrants lived in just seven states: California, Texas, Florida, New York, Illinois, New Jersey, and Georgia.
Between 2000 and 2009, inflows declined in every state except Mississippi (and Washington, D.C.), and outflows increased in every state. As a result, 29 states and D.C. experienced net losses in their populations of unauthorized immigrants in 2009.
The seven states with the fastest growing populations of unauthorized immigrants over the past two decades, in declining order, were in the southeast: Alabama, South Carolina, North Carolina, Tennessee, Arkansas, Kentucky, and Georgia. In each of these states, the unauthorized immigrant population was more than 11 times larger in 2010 than it was in 1990.
Cal Hoopster Bak Bak Lives the Dream
ImmigrationProf previously profiled Cal basketball player Bak Bak, a refugee from the Sudan. A reserve forward on the red hot Cal Bear basketball team (with victories over Oregon, Arizona, and UCLA in the last two weeks), Bak has an amazing immigrant story. He talks to his mother every night on the telephone and hopes to bring his younger brother and sister to the United States to care for them. Bak was attracted to Cal because of its many international students.
Bak did not play but Cal beat UCLA last night.
En Banc Ninth Circuit Rejects BIA Particular Social Group Analysis in Gang Case
Immigrants who have fled gangs in their native countries may be eligible for asylum under a ruling of the U.S. Court of Appeals of the Ninth Circuit on Wednesday (Henriquez-Rivas v. Holder). The en banc decision in a case involved a Salvadoran girl who identified gang members as the murderers of her father. The legal issue in the case was what qualifies as a "particular social group" for purposes of asylum; a fear of persecution based on membership in a particular social group may give rise to a claim of persecution.
The 9-2 holding vacated a decision of the Board of Immigration Appeals, which had denied Rocio Brenda Henriquez-Rivas' claim for asylum based on its application of the "social visibility" test for social group membership. There long has been a conflict among the circuits on the definition of particular social groups eligible for relief as well as the treatment of, or former, members of gangs and immigrants who have fled gang violence. The panel remanded the case back to the BIA for reconsideration.
Interestingly, the majority and disssenting opinions were written by immigrants. Judge Carlos T. Bea, an immigrant who came with his family from Spain to Cuba and then to the United States, wrote the opinion for the court.
The dissent was written by Chief Judge Alex Kozinski, who is also an immigrant brought to the U.S. by his Holocaust survivor parents from his Romania.
Amici briefs were filed in the case by the Central American Resource Center, UC Hastings Center for Gender and Refugee Studies, Harvard Immigration and Refugee Clinic, the United Nations High Commissioner for Refugees, and other immigration rights groups.
Immigration Article of the Day: Amnesty in Immigration: Forgetting, Forgiving, Freedom by Linda S. Bosniak
Amnesty in Immigration: Forgetting, Forgiving, Freedom by Linda S. Bosniak , Rutgers University School of Law, Camden January 30, 2013 Forthcoming, Critical Review of International Social and Political Philosophy (CRISPP), Volume 16, No. 3 (2013) (Special Issue: The Margins of Citizenship)
Abstract: In many national settings, the politics of immigration are fought out by way of debates over `amnesty.’ Amnesty disputes are not confined to the immigration setting, of course; amnesty has been a contentious policy issue in a variety of contexts, from draft avoidance to tax evasion to massive human rights violations. In this article, I approach amnesty arguments as arguments about social accountability — about who is accountable, what accountability is for, and what accountability entails. Employing amnesty as an optic, I examine accountability questions which structure normative debates in liberal states over irregular immigration, with special attention to conceptions of collective and individual culpability embedded in the debates. Though substantially diagnostic, the paper concludes with a critical examination of the main strategy that liberal political and legal theorists have taken in advocating immigration amnesty or legalization: the argument that "time and ties" justify amnesty. I argue that this strategy is powerfully protective in some respects, but that it also condones and reproduces some of national citizenship’s marginalizing elements. As part of the discussion, I consider attendant debates over ethically realistic and idealistic approaches to political analysis.
Documented Failures: the Consequences of Immigration Policy on the U.S.-Mexico Border
In Documented Failures: the Consequences of Immigration Policy on the U.S.-Mexico Border, Michael S. Danielson presents systematic documentation of the experiences of migrant women, men and children repatriated from the United States to cities along Mexico's northern border, with particular emphasis on the Nogales, Arizona/Nogales, Sonora, Mexico area.
The report addresses five common problems experienced by Mexican and Central American migrants before and during migration and upon apprehension, detention and deportation by U.S. migration authorities.
1. The separation of migrants from family members they were traveling with when apprehended and deported by the U.S. Border Patrol. Migrants are often separated from their families, friends and loved ones during the process of deportation. This separation places migrants—the great majority of whom are from parts of Mexico very far from the northern border or Central American countries—in situations of unwarranted vulnerability in an increasingly dangerous region of Mexico.
2. Family separation as a driver of migration and a continuing complication for families of mixed-legal status. As the number of mixed immigration status families is steadily increasing, mothers, fathers, and guardians who are deported by Immigration and Customs Enforcement (ICE) are often separated from their citizen children, who remain in the U.S. with their other parent, guardians, other family members, or in foster care. This section also examines how many of those deported by U.S. migration authorities were attempting to reunite with immediate family members already living in the United States.
3. Violence as a cause of migration and abuses and physical security threats experienced by migrants during northward journeys, border crossing, and after deportation from the United States. As levels of violence directly and indirectly related to drug trafficking have increased throughout Mexico and Central America in recent years, violence has become an increasingly common cause of migration. Furthermore, the growing prevalence of violence along the border means migrants are often the victims of theft and physical, verbal and sexual abuse at the hands of criminal gangs, human smugglers, human traffickers and thieves, risks that ought to be taken into consideration by U.S. migration authorities when deporting unauthorized immigrants to northern Mexico border towns.
4. Abuses and misconduct committed by the U.S. Border Patrol and other U.S. migration authorities. Based on multiple data sources, the report demonstrates that there is systematic abuse and misconduct in the process of apprehending, detaining and deporting undocumented migrants. One in four migrants surveyed (24.8%) reported being abused in some way by U.S. Border Patrol agents, and data show that Department of Homeland Security (DHS), and particularly the Border Patrol, systematically deny Mexican migrants the right to contact their consulate.
5. Abuses and misconduct committed by local police in Mexico.
The Failure of Prosecutorial Discretion and the Deportation of Oscar Martinez
Here is an abstract of a forthcoming article I recently posted on SSRN.
The Failure of Prosecutorial Discretion and the Deportation of Oscar Martinez
Bill Ong Hing
Professor of Law, University of San Francisco
Professor of Law Emeritus, U.C. Davis
(Forthcoming Vol. 15, THE SCHOLAR: ST. MARY'S LAW REVIEW ON RACE AND SOCIAL JUSTICE, 2013)
This Article is an account of my failed efforts to stop the forced deportation of Oscar. Martinez and the lessons I learned from that experience. My representation of Mr. Martinez centered on navigating the administrative process of requesting prosecutorial discretion from Department of Homeland Security (DHS) officials. As a result of my experience with the process and what I have observed of others pursuing the same process, I have come across disquieting evidence of inconsistencies in the program and have concluded extensive changes to the process are necessary. Sympathetic applicants, like Mr. Martinez, highlight the challenges in exercising prosecutorial discretion during the deportation process and the need for cultural and procedural reform of immigration policies.
I begin this Article with an account of how I came to represent Oscar Martinez, largely through the urging of his stepdaughter, Lorena Cintron and a description of Lorena and Mr. Martinez. Next, I review the “Morton Memo,” from John Morton, the Director of the Department of Homeland Security’s Immigration and Customs Enforcement (ICE) unit, which establishes guidelines for exercising prosecutorial discretion. According to these guidelines, there is strong support for the argument that Mr. Martinez’s deportation should have been terminated.
I provide an overview of the procedural history of the Martinez case prior to my involvement. Three years before Mr. Martinez became my client he qualified for relief and, in fact, was granted relief by an immigration judge. However, the government was successful in appealing his case and Mr. Martinez was ordered deported.
In order to contextualize my efforts at staving off the deportation order by invoking the ICE guidelines for prosecutorial discretion, I discuss the past and recent history of prosecutorial discretion in deportation proceedings and the problem of administrative discretion standards in that context. Some ICE agents are inculcated with an enforcement culture that breeds resistance to a more compassionate approach to enforcement and avenues for the review of these discretionary standards are limited. As a result, inconsistent decisions regarding discretion in deportation proceedings have emerged across the country.
Changing the culture of enforcement without exception within the immigration agency would undoubtedly be difficult. Given the challenges involved, I offer suggestions on how to decrease the inconsistencies through various administrative structural actions and reform of the ICE enforcement culture. Finally, I conclude this Article with some reflections on Mr. Martinez and his family.
The full draft of the article can be downloaded at SSRN.
February 14, 2013
Rep. Dana Rohrabacher Makes DREAMer Cry By Ranting About Illegal Immigration at His DC Office
Investment in Citizenship Will Strengthen Country, Assist Promising Americans Currently Being Priced Out
An investment in citizenship and reduction of naturalization fees will strengthen our democracy and will keep the United States economically competitive globally, a group of researchers and immigrant advocates said on a national media call today. A new report — “Nurturing Naturalization: Could Lowering the Fee Help?” — indicates that for working poor immigrants with less education and income, the $680 cost of applying for U.S. citizenship has become a major barrier to becoming Americans — especially for Mexican immigrants. The “Nurturing Naturalization” report was conducted by the University of Southern California Center for the Study of Immigrant Integration (CSII) and commissioned by the National Partnership for New Americans (Partnership). Together with a report released last week by the Pew Hispanic Center (“The Path Not Taken”), the new report shows that the American dream of citizenship has become unaffordable for many immigrants to the U.S.
Immigration Article of the Day: "The Importance of the Political in Immigration Federalism" Arizona State Law Journal, Vol. 44, No. 1431, 2013 by KARTHICK RAMAKRISHNAN and PRATHEEPAN GULASEKARAM
"The Importance of the Political in Immigration Federalism" Arizona State Law Journal, Vol. 44, No. 1431, 2013 by KARTHICK RAMAKRISHNAN (UC Riverside) and PRATHEEPAN GULASEKARAM (Santa Clara).
ABSTRACT: This Article provides a systematic, empirical investigation of the genesis of state and local immigration regulations, discrediting the popular notion that they are caused by uneven demographic pressures across the country. It also proffers a novel theory to explain the proliferation of these policies and queries the implications of this new model for federalism analysis. The story we tell in this paper is both political and legal; understanding immigration politics uncovers vital truths about the recent rise of subnational involvement in a policy arena that courts and commentators have traditionally ascribed to the federal government. Thus, this article connects the proliferation of state and local regulation with the extra-constitutional political institutions and key policy actors who prominently influence both federal and subfederal immigration lawmaking but who remain obscured in traditional, apolitical accounts. This recognition of the political dynamics of immigration law, we argue, fundamentally alters judicial, scholarly, and public evaluations of immigration federalism.
February 13, 2013
Immigration Article of the Day: Taking Care of Immigration Law: Presidential Stewardship, Prosecutorial Discretion, and the Separation of Powers by Peter Margulies
Taking Care of Immigration Law: Presidential Stewardship, Prosecutorial Discretion, and the Separation of Powers by Peter Margulies, Roger Williams University School of Law February 11, 2013 Roger Williams Univ. Legal Studies Paper No. 133
Abstract: President Obama’s chief initiative on immigration, Deferred Action for Childhood Arrivals (DACA), has inspired a fierce debate on presidential power with the usual suspects switching roles. Critics of presidential unilateralism have endorsed DACA, which administratively implemented portions of the DREAM Act to avoid hardship to undocumented children who accompanied parents to the U.S. In contrast, proponents of presidential unilateralism such as John Yoo have assailed the administration’s prosecutorial discretion rationale. Critics are correct on one point: the Obama administration’s prosecutorial discretion rationale does not support the blanket relief that DACA affords. DACA’s legal support stems not from prosecutorial discretion but from the President’s provisional power to protect “intending Americans” from violations of law by nonfederal sovereigns. The nonfederal sovereigns posing a danger here are individual states like Arizona that have enacted restrictive immigration legislation. To analyze the scope and derivation of this presidential power, the Article builds on the stewardship theory advanced by Theodore Roosevelt. The Article views stewardship as a provisional power within Youngstown’s second category of congressional acquiescence. Presidents since the Founding Era have used this power in the course of conducting foreign relations. Under the stewardship paradigm, the President can act interstitially to preserve Congress’s ability to legislate. Stewardship on this reading can also check wayward state impulses, ensure synergy between international law and national interests, and offer reasoned elaboration of the President’s actions. DACA reflects what I call the “new stewardship” of the Obama administration. This new paradigm blends the Framers’ concern about negative externalities of state measures with a commitment to the fairness that undergirds modern equal protection doctrine. DACA limits state incentives for profiling and harassment of undocumented children. Moreover, like the most resonant passages in Obama’s Second Inaugural, DACA posits a synergy between the welfare of the most vulnerable and the national interest.
Immigration Reform and the State of the Union
ImmigrationProf reported yesterday that several undocumented immigrants would be attending President Obama's State of the Union address. As expected, the President touted immigration reform in his speech:
"Our economy is stronger when we harness the talents and ingenuity of striving, hopeful immigrants. (Applause.) And right now, leaders from the business, labor, law enforcement, faith communities -- they all agree that the time has come to pass comprehensive immigration reform. (Applause.) Now is the time to do it. Now is the time to get it done. Now is the time to get it done. (Applause.)
Real reform means strong border security, and we can build on the progress my administration has already made -- putting more boots on the Southern border than at any time in our history and reducing illegal crossings to their lowest levels in 40 years.
Real reform means establishing a responsible pathway to earned citizenship -- a path that includes passing a background check, paying taxes and a meaningful penalty, learning English, and going to the back of the line behind the folks trying to come here legally. (Applause.)
And real reform means fixing the legal immigration system to cut waiting periods and attract the highly-skilled entrepreneurs and engineers that will help create jobs and grow our economy. (Applause.)
In other words, we know what needs to be done. And as we speak, bipartisan groups in both chambers are working diligently to draft a bill, and I applaud their efforts. So let’s get this done. Send me a comprehensive immigration reform bill in the next few months, and I will sign it right away. And America will be better for it. (Applause.) Let’s get it done. Let’s get it done."
Senator Marco Rubio (R-FL) offered the Republican response to the President's address. Among other things, he emphasized his humble roots -- clearly distancing himself from Mitt Romney -- and how his immigrant parents came to this nation of opportunity to better their lives and those of their children. In one of the few areas in which Senator Rubio agreed with the President, he suggested the possibility of immigration reform:
"We can also help our economy grow if we have a legal immigration system that allows us to attract and assimilate the world's best and brightest. We need a responsible, permanent solution to the problem of those who are here illegally. But first, we must follow through on the broken promises of the past to secure our borders and enforce our laws."
Senator Rubio is one of the group of eight U.S. Senators who have endorsed a set of principles for immigration reform.
I thought that Senator Rubio was a polished and compelling speaker. However, it appears that the intenet is atwitter over his mid-speech water break.
Rand Paul (R-Ky), in the Tea Party response to the President's speech, also endorsed immigration reform.
February 12, 2013
Immigration Article of the Day: Re-Thinking Illegal Entry and Re-Entry by Doug Keller
The Loyola University Chicago Law Journal published an article entitled Re-Thinking Illegal Entry and Re-Entry by Doug Keller of Georgetown. ImmigrationProf posted a link to a draft of the article in July 2011. The Article traces the history of two federal crimes that have long supplemented the civil immigration system and now make up nearly half of all federal prosecutions: illegal entry and illegal re-entry. Little has previously been written about the historical lineage of either crime, despite the supporting role each has played in enforcing the nation’s immigration laws, particularly along the U.S.-Mexico border. This Article takes a critical look at the use of each crime -- from when they were initially conceived of as a way to deter illegal immigration, then as a way to target dangerous aliens, and most recently as a way to do both. These shifting strategies, however, have all had one thing in common -- ineffectiveness. The crimes have never meaningfully deterred illegal immigration, and the government’s poorly designed proxy to determine if an alien is “dangerous” has ensured that prosecutions have not made the public safer. The most recent period has been particularly troubling -- over 75,000 combined prosecutions a year, at the cost of well over a billion dollars a year and at the expense of prosecuting more serious crimes. Despite these huge costs and the related human carnage, the criminalization of illegal entry and re-entry is invariably left out of the discussion of comprehensive immigration reform, which is emblematic of the silent treatment these crimes have received in the literature on immigration policy and criminal law more generally. By reviewing eight decades worth of ineffective strategy, this Article makes a case for why the enforcement of the crimes of illegal entry and re-entry warrants more attention and a fundamental re-thinking.
Harry Truman's Quote of the Day on Migrant Workers
David Bacon, the noted writer, photo-journalist, human rights and workers rights advocate, sent me this quote from Harry Truman---interesting food for thought, as we contemplate immigration reform.
"We depend on misfortune to build up our force of migratory workers and when the supply is low because there is not enough misfortune at home, we rely on misfortune abroad to replenish the supply," President Harry S. Truman, 1951.
I think we owe immigrant workers today a great deal of respect and thanks.
General Colin L. Powell to be Honored at Immigrant Achievement Awards
The American Immigration Council invites you to celebrate the remarkable accomplishments of immigrants and advocates from around the country at an inspiring and thought-provoking ceremony at the Washington Court Hotel on April 11, 2013. This year marks our 18th Annual Washington, DC Immigrant Achievement Awards and we are excited to announce that we will be honoring immigrants and advocates who have contributed to our nation through their service and leadership.
To date, honorees include:
General Colin L. Powell
State of the Union’s special guests: undocumented immigrants
NBC Latino reports that Several Congressmen and President Barack Obama have invited undocumented immigrants to the State of the Union in Washington D.C., as a reminder to President Obama and Congress that immigration reform isn’t going away.