Friday, May 26, 2017
On Lawfare, Peter Margulies expresses skepticism about the Fourth Circuit's reliance on the Establishment Clause to enjoin the travel ban in International Refugee Assistance Project v. Trump. I can't really tell what Margulies thinks of the ultimate outcome of the case. I do understand him to (1) be skeptical of the Establishment Clause rationale for invalidating the travel ban; and (2) worried about the court "cherry-picking Donald Trump's campaign utterances and subsequent statements." On the second point, there sure were many, many anti-Muslim statements in Trump's utterances alone; to me, it is hard to say that any "cherry-picking" went on in the court's analysis.
Dorothea Lange's “Migrant Mother,” taken in Nipomo, Calif., in March 1936, captured the despair of that era through the eyes of a 32-year-old mother who had just sold her car tires for food. (Dorothea Lange)
The Associated Press reminds us of the work of Dorothea Lange and ties it to the modern migration struggles. Lange was driving by a pea pickers’ camp on the California coast when she stumbled across a weary mother and her many children huddled in a lean-to.
It was 1936, during the throes of the Great Depression, and Lange took out her camera. The image she titled “Migrant Mother” became the late photographer’s most famous work, capturing the dirt and despair of that era.
The photograph, digitally scanned and enlarged, is a dominant feature of a new exhibit at the Oakland Museum of California called “Dorothea Lange: Politics of Seeing.” The exhibit of 100 of Lange’s photographs includes Dust Bowl migrants, Japanese Americans incarcerated during World War II, the homeless and post-war urban decline.
"the Department of Homeland Security (DHS) announces that the Secretary of Homeland Security (Secretary) is extending the designation of Haiti for Temporary Protected Status (TPS) for 6 months, from July 23, 2017, through January 22, 2018. The Secretary has determined that a limited, 6-month extension is warranted because, although Haiti has made significant progress in recovering from the January 2010 earthquake that prompted its initial designation, conditions in Haiti supporting its designation for TPS continue to be met at this time. The Secretary is committed to making TPS determinations that fully comply with the Immigration and Nationality Act and the intent of the program to provide a temporary form of immigration relief and protection to eligible individuals who cannot return to their home country due to ongoing armed conflict, environmental disasters, or other extraordinary and temporary conditions. ... TPS beneficiaries are reminded that, prior to January 22, 2018, the Secretary will re-evaluate the designation for Haiti and decide anew whether extension, redesignation, or termination is warranted. During this period, beneficiaries are encouraged to prepare for their return to Haiti in the event Haiti’s designation is not extended again, including requesting updated travel documents from the Government of Haiti. DATES: Extension of Designation of Haiti for TPS: The 6-month extension of the TPS designation of Haiti is effective July 23, 2017, and will remain in effect through January 22, 2018. The 60-day re-registration period runs from May 24, 2017 through July 24, 2017."
The Stanford Law School Immigrants' Rights Clinic has announced the release of a new pro se asylum guide. The guide is the first of its kind to provide a step-by-step description of how one can represent themselves in their asylum removal proceedings before the San Francisco Immigration Court. The guide is interactive and participatory, explaining how pro se asylum seekers can take helpful and affirmative steps to prepare for their (non-detained) merits hearings.
The guide, created and written by law students under the supervision of Jayashri Srikantiah and Lisa Weissman-Ward, was produced on behalf of Centro Legal de la Raza (Oakland, CA) and Community Legal Services of East Palo Alto (East Palo Alto, CA).
The guides (available in English and Spanish) can be found here:
The new Trump administration's immigration executive orders have spawned a new era of lawyer activism.
For many lawyers, the Trump presidency has been a new world. While activists have filled the streets, lawyers have been fighting him in court, and gaining national recognition in the process. This has inspired many lawyers to be vocal about their beliefs and back up their words with action, joining protests across the country.
At the same time, however, this notoriety comes at a price. Many lawyers getting involved in anti-Trump actions are struggling to deal with the responsibility of fighting for their clients in a political world that is looking less and less certain, and they are talking about the toll of the work on their own mental health more openly.
Latino USA speaks with a lawyer and a legal representative to shed light on this new world for lawyers.
Guest post by Liza Trazzera, rising 2L at Hofstra University's Maurice A. Deane School of Law.
60,000 vehicles per day, 30,000 pedestrians per day, 250 buses per day, 147,000 total people per day, every – single - day. No holidays, no lockdown, no matter what. As I look out upon a sea of cars from the third floor of the San Ysidro Port of Entry, I wonder what it takes to screen these people and vehicles. What does it take to keep the U.S. safe, free from crime, free from narcotics, free from criticism? All while enabling legitimate trade and travel.
The busiest and largest land Port of Entry, connecting San Diego, CA and Tijuana, Mexico. Undergoing an expansive renovation, equipped with dual primary vehicle inspection booths along with a secondary inspection facility. The vehicle lanes to the left are trusted travelers, those who have been vetted and background checked. In the center lanes, those with machine-readable documents. To the right, general traffic, all persons that do not fall into the other lanes. Every person and every vehicle goes through radiation screening. Additionally, a camera takes a picture of the front license plate, rear license plate and an image of the driver. Just under 4% of travelers are subjected to secondary inspection. A shocking average of 7 narcotics seizures per day.
As we spoke to an officer, "there are no shortage of challenges" he said. Another officer, in concurrence speaks about the misconceptions. These officers are not cold-hearted. They are particularly touched by the children that come through unaccompanied. The youngest, 18 months. These officers bring clean clothes from their own homes, their own children, to make sure the unaccompanied children get what they need. They use their own money to buy them DVD videos. They carry a 2-year-old child, who is scared, while they continue to do their job. They follow the letter of the law, often through heart-break, often through sympathy, always through challenges.
-posted by KitJ on behalf of Liza Trazzera
The Los Angeles Times reports on this "sweet" story about everyone's favorite breakfast food: "Instead of national chains, the Southern California doughnut sector is dominated by mom-and-pop businesses run by immigrants, none more influential than Cambodian Americans."
Landing here as refugees in the mid-1970s to escape the Khmer Rouge, the Southeast Asian community quickly found a lifeline in the doughnut business.
An ambitious Cambodian refugee named Ted Ngoy built a network of doughnut shops and staffed them with his countrymen whose visas he sponsored. Ngoy started in Orange County, in La Habra and expanded to Fullerton, Anaheim and Buena Park. Cambodian doughnut stores spread to Los Angeles County, which long been dominated by the Winchell’s Donuts chain.
Years ago, Bill Hing told me about the presence of Cambodians in the donut business.
A new report entitled "E4FC's Invest in the Dream Initiative: Scholarships and Support for Undocumented Students" is available here.
Invest in the Dream is a competitive grant program that E4FC launched in 2014. By offering challenge grants to nonprofit scholarship organizations nationwide, Invest in the Dream encourages those organizations to create or expand scholarship programs that support undocumented students pursuing higher education.
With generous support from the Heising-Simons Foundation, the Grove Foundation and other funders, E4FC has awarded $750,000 in matching grants to nonprofit scholarship providers in 16 states. These grants have leveraged an additional $750,000 in matching funds from local donors and other sources, for a total of $1.5 million in new scholarship support for over 200 undocumented students. In addition, Invest in the Dream has created and nurtured a national learning community of scholarship professionals and volunteers, many of whom are working in very challenging political environments. Find out more about our grantees here.
After three years of work, we thought it was important to conduct an in-depth review of Invest in the Dream, including its key accomplishments, challenges and lessons learned. Jay Sherwin, Co-Director of Invest in the Dream, conducted that review, relying on his years of experience as a grantmaker and consultant to foundations and other nonprofit clients.
The report includes comments and insights from twenty informants, including thirteen grantee representatives, four scholarship recipients and three allies and funding partners. It also includes brief profiles of four students and two matching grant donors.
The report reaches these key conclusions:
- Invest in the Dream scholarships have positively affected 200 undocumented students and their families.
- Scholarships have been “game-changers” for many students, convincing some that college was possible and allowing others to attend college full-time.
- The Invest in the Dream learning community has become a highly valued source of advice and support for participating scholarship providers, offering information and affirmation to organizations that often operate in isolation and/or confront significant local opposition.
- Grantees gained credibility in their local communities from being selected to participate in a national initiative, even if community leaders were not already familiar with E4FC.
- While Invest in the Dream broke new ground as a national initiative, it is a relatively modest response to a much larger national need. Scholarships are powerful tools but they are also expensive investments on a per-student basisKJ
The next biennial Immigration Law Scholars and Teachers Workshop will be held at the Drexel University Thomas R. Kline School of Law in Philadelphia on May 24-26, 2018—one year from now, the Thursday through Saturday leading into Memorial Day weekend. As with the past several conferences, a clinical workshop will be held on Thursday, and the full conference will end on Saturday.
Anal Kalhan will be providing more information in the future about lodging, logistics, and programming.
Immigration Article of the Day: Segmentation and the Role of Labor Standards Enforcement in Immigration Reform by Janice Fine and Gregory Lyon
Segmentation and the Role of Labor Standards Enforcement in Immigration Reform by Janice Fine (Rutgers School of Management and Labor Relations) and Gregory Lyon (Rutgers University)
Despite the fact that many low-wage, violation-ridden industries are disproportionately occupied by immigrants, labor standards and immigration reform have largely been treated as separate pieces of an otherwise interrelated puzzle. Not only is this view misguided, but this paper argues that strengthening labor standards enforcement would ensure that standards are upheld for all workers, immigrant and others. In addition, labor standards enforcement is instrumental to the erosion of sub-standard conditions in certain sectors, often referred to as the “secondary” labor market, that are associated with advanced market economies. Ensuring labor standards are upheld diminishes the incentive for employers to undercut wages by exploiting vulnerable workers, many of whom are immigrants. As this paper argues, strengthening enforcement must include not only “vertical” mechanisms, including strategic enforcement and penalizing and criminalizing egregious and repeated labor violators, but also “lateral” mechanisms, such as co-enforcement by workers and through worker and community organizations. The article illustrates the role of co-enforcement in labor standards through two case studies.
Thursday, May 25, 2017
Today, the U.S. Court of Appeals for the Fourth Circuit upheld an injunction against President Trump's executive order banning travel from several Muslim-majority nations. It's a 205 page opinion (albeit double-spaced) that you can read at this link.
Many are praising Chief Judge Gregory's opening words:
The question for this Court, distilled to its essential form, is whether the Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2, 120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination.
Too tired to slog your way through the whole opinion tonight? I hear you. Check out immprof Shoba Sivaprasad Wadhia's favorite quotes over at Medium.
Guest post by Marie Sutton, rising 3L at Chapman University's Dale E. Fowler School of Law
The double fencing and barbed wire encircling the concrete cube presented the image of a prison. Yet during our tour of the Otay Mesa Detention Facility in San Diego, our guides took care – albeit with some slip ups – to refer to the residents as detainees, not inmates. The slip ups were easy to understand given that this private facility has a contract not only with ICE but also with the U.S. Marshals Service. Bold lettering on the back of the prison uniforms identified members of these two groups as either “detainees” or “inmates.” These groups are kept separate within the facility, as are several subgroups of detainees. The color coding of their prison uniforms presented a human rainbow – and this rainbow most certainly has a pot of gold.
The Otay Mesa Detention Facility was completed in 2015 and has a capacity for 1482 adult males and females. The facility is owned by CoreCivic, Inc., formerly the Corrections Corporation of America, and its publicly-traded stock is doing well. Inside, the place was immaculate and everything seemed to run smoothly. The talk and tour were led by ICE facility managers and we met immigration court attorneys, a judge, and clerks within the facility. Everyone was very hospitable and generous with their time, answering the tour group’s many questions. I truly appreciated the opportunity to interact with them and to tour the facility. However, nothing could detract from the core fact that this is a business that grows and profits from detaining more and more people, the longer the better.
It troubles me to see caged primates in zoos. It troubled me even more to see caged humans. At a zoo, I look into the eyes of the primates, seeking a distant yet common connection. At the detention facility, I felt I couldn’t look into the eyes of the detainees because I knew I would recognize fellow humanity. Is it really the best option to “detain” all these people? Don’t statistics support the fact that most detainees released on bond do appear at their scheduled court hearings? Aren’t there effective alternatives to detention such as ankle bracelets and phone in checks?
Human detention of migrants is big business, but is this the best we can do for members of our own species?
-posted by KitJ on behalf of Marie Sutton
Guest post by Cecilia Anguiano, rising 3L at Lewis & Clark Law School.
The red, white, and blue of the American flag stands boldly next to the Department of Justice Seal. Similarly, the front wall of the room is painted blue while the rest of the walls are white. The red of his jumpsuit completes the color sequence.
Judge Partida inquires whether the detainee’s background check on file is the most recent. It is not. It will take several weeks to run a new background check so a new hearing on the merits of the case will be scheduled.
His custody hearing is also scheduled for today. His defense attorney states she is prepared to present evidence to advocate for his release while his case is pending. This is news for the Assistant Chief Counsel as this detail wasn’t noted on the docket. She has the burden of proof of proving that the detainee is a danger to society and if not, must prove that he is a flight risk. She asks that she be able to submit her evidence at the merits hearing set for over a month from now. Defense counsel interjects,“Your honor, my client has now been sitting in detention for 1,126 days. If the government is not ready they are not ready. I ask that we proceed.”
This isn’t criminal court. He isn’t being sentenced for a crime. This is immigration court inside of the Otay Mesa Detention Center.
This proceeding is unusual. In fact, this detainee is lucky. He has a zealous advocate sitting next to him from the ABA Immigration Justice Project. On average seventy percent of detainees at this Detention Center won’t have legal representation.
Immigration Judge Partida takes a fifteen minute recess to allow the Assistance Chief Counsel to prepare her hearing documents. The man in the red jumpsuit asks to use the restroom. A guard in the back of the room speaks into his handheld radio and motions for him. The detainee passes the three wooden pews and exits not knowing if he will be getting out or if he will be ordered removed.
-posted by KitJ on behalf of Cecilia Anguiano
Immigration Article of the Day: Overturning the Missed Opportunity of Title VII Under Espinoza v. Farah by Maria Linda Ontiveros
Overturning the Missed Opportunity of Title VII Under Espinoza v. Farah by Maria Linda Ontiveros, Berkeley Journal of Employment and Labor Law, Forthcoming, University of San Francisco - School of Law, Date, May 8, 2017
This essay argues the Supreme Court decision Espinoza v. Farah Mfg. Co. should be overturned because of its incorrect definition of national origin discrimination under Title VII. The essay argues that Espinoza v. Farah's holding that discrimination based on citizenship status, immigration status or migrant status is not national origin discrimination under Title VII's disparate impact or disparate treatment theories is incorrect from both theoretical and doctrinal standpoints. To bolster its analysis, the essay presents a social and political history of discrimination against Latinos at the time of the decision, as well as the litigation strategy behind Espinoza to illustrate how discrimination based on citizenship status, migrant status and immigration status is discrimination based on national origin. It then shows how two lines of cases — Title VII discrimination cases brought by H1B guest workers on the basis of national origin discrimination and EEOC trafficking cases alleging discrimination based on national origin and/or sex — have begun to erode the analysis underlying Espinoza. It concludes with an argument, based on current Supreme Court standards, that Espinoza should be overturned.
Wednesday, May 24, 2017
Guest post by Demi Jacques, rising 3L from Lewis & Clark Law School
After touring the castle on a hill that is the US embassy in Tijuana, complete with fancy soaps, striking artwork, and marine security “coming soon,” la Casa del Migrante stood in sharp contrast. My class rolled up in our giant, air conditioned bus, inviting stares and questions from men on the street. “Where are you from??” “Los estados unidos,” I mutter, though we mostly ignore them. I sense some heightened vigilance in our group; we are no longer among smiling diplomatic Americans in a shining new facility. Barbed wire and iron fences loom above the unmarked street, a small cross rising behind them does not quite emanate invitation. Perhaps the stories about Tijuana happen in places like this, we don’t really know.
La Casa del Migrante is a shelter for recently deported people and refugees. They’ve seen an influx of refugees in recent years, first from Haiti and now from El Salvador, Guatemala, and Honduras. The refugees flee violence to be scolded and denied refugee status for not having proper paperwork. La Casa tries to help them with that. They also have a psychologist and resources for people recovering from the shock of deportation, trauma, and their heightened risk of substance abuse. Additionally, they have a job office. Call centers hold the sought-after jobs. I wonder what it’s like to be kicked out of the US or denied entry and then take angry phone calls from outraged Americans who want to yell at a human, not a machine. That irony is not lost on me.
“Today is a good day,” our guide proclaimed. A worn dry erase board by the dining hall announces “74 Migrantes, 5 Refugiados, 79 total.” She said they have space for 140, but can squeeze in 200. They’ve had trouble with the space, she explained, but today was good. Seventy-nine people are not on the street tonight in Tijuana. As I return to my comfortable loft bedroom in my La Jolla hotel, I think about the people about 30 miles from here who couldn’t get into La Casa or another shelter. I also think about my classmates agreeing that they wouldn’t want to be on that street at night. Finally, I think about the little signs that Americans like to decorate their houses with, sometimes with phrases like “Mi casa es su casa.”
-posted by KitJ on behalf of Demi Jacques
At the Movies -- Cannes 2017: Virtual Reality Film Carne y Arena Tells of Border Crossing Experience
"Carne y Arena” tells the story of Latin American immigrants attempting to cross into the United States through the Arizona desert when they are caught by U.S. authorities. Iñárritu and his frequent cinematography collaborator Emmanuel Lubezki located real people who suffered the torturous journey and had them reenact it on camera; they then shot their stories with VR's 360-degree sweep and in-your-face urgency.
Guest post by Jade Stocks, rising 2L from Chapman University, Fowler School of Law
The American consulate in Tijuana stands atop a hill on the outskirts of town, overlooking the rest of the city. The grounds – updated from lush grass to drought friendly succulents and rocks several years ago – are beautiful and meticulously maintained. Every aesthetic element inside and out is designed to project a positive image of America- clean, simple, elegant and efficient.
But efficiency is the theme that runs through the entire consulate, not just the landscaping. With officers conducting between 400 and 1,000 appointments for non-immigrant visas each day (111,000 so far this year), streamlining is key. Interviews are generally finished in 90 seconds to two minutes – five minutes for the most complicated cases. Each applicant is initially treated with the presumption that they intend to immigrate to the United States. They have these 90 seconds to meet the burden of proof required to show otherwise.
Officers are given broad discretion over what questions to ask to determine whether to approve a visa request, but a supervisor reviews 20% of decisions at random to make sure her staff’s decisions are consistent with each other – they don’t want two people in the same situation to be given two different decisions. Generally, however, the line of questioning involves determining what their travel plans are and whether they have strong ties in Mexico that would indicate the likelihood of them returning home.
All of this in aid of the most efficient visa processing possible.
-posted by KitJ on behalf of Jade Stocks
In the early 1920s, before he became an icon of the American songbook, composer Cole Porter wrote the score for a protest ballet. The production, called Within the Quota, criticized restrictive immigration laws that had been passed by Congress. According to Princeton music professor Simon Morrison, who rediscovered the score two years ago in Yale's Porter archives, the show opened in New York at a time of fearful backlash against Polish, Greek and Australian immigrants arriving in the U.S. after World War I.
Now, to protest President Trump's anti-immigrant stance, the Princeton University Ballet is reviving the production. Morrison, who produced the show, says after the election, "[I] looked again at the score and thought about its context and thought, Oh my God, this is actually what it was about. These things were real and actually we're feeling them again now."
President Trump is proposing to cut the Justice Department’s budget while boosting the funding for a crackdown on illegal immigration.
The Trump administration is proposing a $27.7 billion for the Justice Department in fiscal 2018, down $1.1 billion, or about 4 percent, from last year.
But the administration proposed nearly $145 million in additional funding for immigration enforcement, adding 75 immigration judges along with about 375 support personnel, 70 new assistant U.S. attorneys focused on immigration and border crime, 40 deputy marshals, and new funds for space to detain more illegal immigrants.
“With this budget we are also implementing the president’s promise to secure our borders and restore a lawful immigration system,” Deputy Attorney General Rod Rosenstein told reporters at a Justice Department briefing Tuesday. “While dramatic progress has been made at the border in recent months, much remains to be done, and it’s critical that we focus on increased enforcement of our criminal immigration laws and that we enforce all immigration laws efficiently.”