Sunday, April 30, 2017
"Do You Know Who I Am?" is a one-act show featuring autobiographical monologues written and performed by youth living in the U.S. under the Deferred Action for Child Arrivals program, staged at the Motus Theater in Boulder, Colorado.
This weekend, the show has featured a twist. Boulder County district attorney, the county sheriff and police chiefs from the Colorado cities of Longmont, Louisville and Lafayette take on the roles of these immigrants.
Boulder County District Attorney Stan Garnett (@DAGarnett) and show writer and performer Victor Galvan (@victorgalvan247) here why the show tool this turn, and what it means to the original actors and law enforcement officials who will share their stories.
Admir Skodo on The Conversation looks at immigrant detention around the world. The bottom line is not pretty:
"Since the 1980s, all major Western states practice what they call civil or administrative confinement of undocumented immigrants and non-citizens. But this practice of putting undocumented immigrants – as well as asylum seekers – in detention centres does not deter people from seeking sanctuary in the West. Instead, it feeds a growing private prison industry and can portray genuine asylum seekers, who are often deeply scarred by trauma, as criminals who pose a security threat.
The US has the highest number of incarcerated non-citizens in the world: a population which grew from around 240,000 in 2005 to 400,000 in 2010. Since 2009, there has been a congressional mandate to fill 34,000 immigration detention beds each night. More than half of these beds are placed in privately run detention facilities, run by companies such as CoreCivic (formerly the Corrections Corporation of America), who lobbied for the passing of this mandate."
Immigration Article of the Day: Language as a Canary: The Role of Language in the Refugee Regime by Jin Sol Lee
This Note will explore the role of language in asylum claims and specifically how/why language discrimination can serve as a predominate indicator of persecution on the basis of nationality and/or ethnicity by examining language rights in relation to identity, nationality, and power dynamics. Part I will provide evidence showing why attention to language in the refugee context is warranted as language is implicated with increasingly frequency in refugee claims and within asylum procedures. Part II will look at some examples of how language is used as a tool of identification and discrimination. Part III will argue that language is the focal point of national and ethnic identity because of its ties to political power and nation building. Accordingly, the refugee regime should pay more attention to language discrimination, as even if it doesn't amount to persecution by itself, language may be the canary for escalating social tensions, that is, a warning sign of increasing marginalization of specific national and/or ethnic groups. Sufficient discriminatory and violent linguistic policies may even act as prima facie evidence of socio-political marginalization of specific social groups, or even persecution, amounting to a need for refugee protection. The Note will conclude by offering some recommendations on how to better protect those who may be seeking asylum due to (or in part due to) language discrimination in Part IV.
Saturday, April 29, 2017
About half of the 675 immigrants picked up in roundups across the United States in the days after President Trump took office either had no criminal convictions or had committed traffic offenses, mostly drunken driving, as their most serious crimes, according to data obtained by The Washington Post. President Obama's removal records were similar.
Immigration Article of the Day: National Interests and Common Ground in the US Immigration Debate: How to Legalize the US Immigration System and Permanently Reduce its Undocumented Population by Donald Kerwin and Robert Warren
The conventional wisdom holds that the only point of consensus in the fractious US immigration debate is that the system is broken. Yet, the US public has consistently expressed a desire for a legal and orderly immigration system that serves compelling national interests. This paper describes how to create such a system. It focuses on the cornerstone of immigration reform, the legal immigration system, and addresses the widespread belief that broad reform will incentivize illegal migration and ultimately lead to another large undocumented population.
The paper begins with an analysis of presidential signing statements on seminal immigration legislation over nearly a century. These statements reveal broad consensus on the interests and values that the United States seeks to advance through its immigration and refugee policies. They constitute additional common ground in the immigration debate. To serve these interests, immigration and refugee considerations must be “mainstreamed” into other policy processes. In addition, its policies will be more successful if they are seen to benefit or, at least, not to discriminate against migrant-sending states.
Not surprisingly, the US immigration system does not reflect the vast, mostly unanticipated changes in the nation and the world since Congress last meaningfully reformed this system (27 years ago) and last overhauled the law (52 years ago). The paper does not detail the well-documented ways that US immigration laws fall short of serving the nation’s economic, family, humanitarian, and rule of law objectives. Nor does it propose specific changes in categories and levels of admission. Rather, it describes how a legal immigration system might be broadly structured to deliver on its promises. In particular, it makes the case that Congress should create a flexible system that serves compelling national interests, allows for real time adjustments in admission based on evidence and independent analysis, and vests the executive with appropriate discretion in administering the law.
The paper also argues that the United States should anticipate and accommodate the needs of persons compelled to migrate by its military, trade, development, and other commitments. In addition, the US immigration system needs to be able to distinguish between undocumented immigrants, and refugees and asylum seekers, and to treat these two populations differently.
The paper assumes that there will be continued bipartisan support for immigration enforcement. However, even with a strong enforcement apparatus in place and an adaptable, coherent, evidence-based legal immigration system that closely aligns with US interests, some (reduced) level of illegal migration will persist. The paper offers a sweeping, historical analysis of how this population emerged, why it has grown and contracted, and how estimates of its size have been politically exploited.
Legalization is often viewed as the third rail of immigration reform. Yet, Congress has regularly legalized discrete undocumented populations, and the combination of a well-structured legalization program, strengthened legal immigration system, and strong enforcement policies can prevent the reemergence of a large-scale undocumented population. In contrast, the immense US enforcement apparatus will work at cross-purposes to US interests and values, absent broader reform.
The paper ends with a series of recommendations to reform the legal immigration system, downsize the current undocumented population, and ensure its permanent reduction. It proposes that the United States “reissue” (or reuse) the visas of persons who emigrate, as a way to promote legal immigration reform without significantly increasing annual visa numbers.
Friday, April 28, 2017
Slate is talking about the SCOTUS case Maslenjak. (Look here, here, here, and here for our prior coverage of the case. It's about what should be able to trigger denaturalization. The government wants broad powers in this realm - oral argument suggests that the justices aren't on the same wavelength.)
They've got an interesting take: Might the case impact First Lady Melania Trump's own naturalization? Here's the argument:
In 2016, a lawyer representing Melania—a native of Slovenia who was naturalized in 2006—attested that he had reviewed her immigration documents and found no evidence that she had ever violated U.S. law. Later that year, however, the Associated Press uncovered records showing that she had in fact done paid modeling work for several weeks while she was staying in the U.S. in 1996 on a visitor visa, which would have been a violation of that visa's terms. If, as her lawyer's statement would appear to imply, Melania did not subsequently disclose this violation on other immigration documents, the Trump administration's current position would thus suggest she—the First Lady of the United States—is subject to deportation.
People gather in the Pico-Union neighborhood of Los Angeles during rioting following the acquittal of four police officers in the beating of Rodney King in 1992. The neighborhood looks similar today as it did 25 years ago. It's still more than 80 percent Latino, with lots of immigrant families from Mexico and Central America. Gary Leonard/Corbis via Getty Images hide caption toggle caption Gary Leonard/Corbis via Getty Images
The Pathfinder bookstore on Pico Blvd. burns in the Pico-Union area of Los Angeles during the riots in 1992. Ted Soqui/Corbis via Getty Images hide caption toggle caption Ted Soqui/Corbis via Getty Images
Recent days have seen many news stories about the 25 year anniversary of the Rodney King uprising in Los Angeles. Many forget that Latina/o immigrants were part of the story.
NPR highlights the impacts of the Rodney King violence on Latina/os. Looking back at the 1992 Los Angeles riots, people often remember tensions between African-Americans, white law enforcement officers and Korean small business owners. That story gets even more complicated when you step into Pico-Union — a neighborhood that was, and still is, predominantly Latino.
In the wake of the Rodney King verdict, riots broke out around the city. The first day, they erupted in South Central; by the second, they had spread north to Pico-Union. And while people all over the city had to deal with looting, fires, and general chaos, many residents of Pico Union had to deal with an additional fear — the threat of deportation.
Mike Hernandez was the neighborhood's city councilman in 1992. He said that in the 25 years since the riots, Pico-Union hasn't changed that much. The area is still more than 80 percent Latino, with lots of immigrant families from Mexico and Central America. And, in 1992, a majority of Pico-Union constituents were living below the poverty line in crowded conditions. Hernandez said he knew long before the riots started that Pico-Union was just as combustible as South Central LA. "We had twice the density here of Manhattan," Hernandez said. "And our fire station here, Fire Station 11, was the busiest fire station in the nation."
Earlier this week, ImmigrationProf reported on the unveiling of the U.S. Immigration and Customs Enforcement (ICE) Victims of Immigration Crime Engagement Office (VOICE), which was created in response to one of President Trump's January 25, 2017 immigration executive orders..
The BBC reports on the opening of the new VOICE office to "serve the needs of crime victims and their families who have been impacted by crimes committed by removable criminal aliens." The centerpiece is a new hotline that victims can call for support and assistance. People began making clear exactly what people should not be using the line for.
But others noted the hotline was launched on Alien Day (a yearly promotional day backed by the Alien film franchise's producers).
People called the hotline to report "criminal alien" activity of a different kind than that envisioned by Homeland Security Secretary John Kelly.
It is unclear how many people actually placed calls to the hotline, and several Twitter users reported long wait times to get through. But the US Immigration and Customs Enforcement (ICE) agency suggested it had impacted their service
Date Written: April 5, 2017
Many scholars argue that derivative citizens like Senator Ted Cruz are eligible to the presidency because the First Congress provided in the Naturalization Act of 1790 that foreign-born children of American parents "shall be considered as natural born citizens... " Some assert that the provision declares substantive constitutional law, others that it shows Congress's power to define "natural born" status by granting statutory citizenship at birth.
This article examines earlier uses and variants of the phrase "considered as natural born," particularly in the Act's legislative history and in proposed Anglo-American terms of peace from 1777 to 1783. It concludes that the provision merely naturalized the children; it did not declare or define constitutional law. The provision does not tell us that the children were eligible to the presidency -- or that they were necessarily ineligible. It tells us only that those who receive statutory citizenship at birth abroad are naturalized citizens regardless of parentage.
Thursday, April 27, 2017
I published this op/ed in the Los Angeles Daily Journal today:
As it seeks to transform the nation’s immigration enforcement direction, the Trump administration is taking its lumps in the courts. Several courts have blocked the implementation of two travel bans focusing on predominantly Muslim nations and suspending refugee admissions. As in those cases, President Trump’s proclivity for overstatement contributed to the latest court setback, a ruling putting on hold a frontal assault on “sanctuary cities.”
On Tuesday, Judge William H. Orrick (N.D. Cal.) issued a 49 page written order granting a nationwide preliminary injunction blocking implementation of Section 9(b) of a January 25, 2017 executive order. That section purports to bar federal funding to “sanctuary cities.” The City and County of San Francisco and Santa Clara County sought the injunction claiming that Section 9(a) violated the U.S. Constitution by running afoul of the separation of powers between Congress and the Executive Branch, infringing on state sovereignty guaranteed by the Tenth Amendment, being so vague and standardless that it violates the Due Process Clause of the Fifth Amendment, and threatening to deny local governments with congressionally authorized funds without notice and opportunity to be heard in violation of the Due Process Clause.
Judge Orrick observed that, in focusing on technical arguments about jurisdiction, the U.S. “government present[ed] no defense to these constitutional arguments.” The government effectively conceded the unconstitutionality of its effort to strong-arm state and local governments into fully cooperating in the administration’s extreme immigration enforcement agenda.
The order provides, in relevant part, as follows:
the Attorney General and the Secretary [of the Department of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.
President Trump and Attorney General Sessions repeatedly threatened to strip “sanctuary cities” of all federal monies, not only the grant programs on which Congress has conditioned compliance with 8 U.S.C. § 1373 – the only specific reference to a statute in the executive order. Beyond 8 U.S.C. § 1373, Congress has not permitted the stripping of federal grant monies from state and local governments that do not fully cooperate with the federal government’s immigration enforcement program. To exacerbate the uncertainty, the order fails to define a “sanctuary jurisdiction” but leaves that designation to the Secretary of the Department of Homeland Security.
At the oral arguments on the injunction motion, the Justice Department attorneys understood that the executive order could not be defended as written. They conceded that Congress had only authorized – a limit that the administration would honor -- not providing federal funding provided by three programs to local governments for violating 8 U.S.C. § 1373. According to the Justice Department, President Trump and Attorney General Sessions’ public statements were in effect making idle threats in using the “bully pulpit.”
Judge Orrick rejected the Justice Department’s effort to narrow the scope of the executive order because it was not “reasonable. It requires a complete rewriting of the Order’s language . . . .” In so ruling, the court cited threats by President Trump and Attorney General Jeff Sessions, and reiterated by press secretary Sean Spicer, to broadly strip federal funding from sanctuary cities and even seek the return of funds previously allocated.
The threat has a big dollar tag attached. In the 2015-16 fiscal year, Santa Clara received approximately $1.7 billion in federal funding and San Francisco about $1.2 billion. This possible loss justified the court’s finding that the cities had “standing” under Article III to challenge the executive order. That finding of standing effectively resolved the dispute.
In County of Santa Clara v. Trump, the district court enforced the law and entered a preliminary injunction barring the threatened across-the-board denial of federal funding to “sanctuary cities.” It was a relatively easy case for Judge Orrick given the Trump administration’s failure to carefully draft a detailed order that seeks to comply with the law. As with the travel ban, the Trump administration may go back to the drawing board.
It is ironic that President Trump, who aggressively attacked President Obama’s Deferred Action for Childhood Arrivals program as an arrogation of executive power, to this point has been repeatedly been given basic constitutional law lessons by the federal courts.
NPR offers a sobering report of the immigration consequences of the first 100 days of the Trump administration. President Trump has drastically reduced the flow of immigration, both legal (including refugees) and illegal, to the United States. The new administration has made it harder to get into the U.S for all kinds of people. From refugees and visa holders, to asylum seekers and illegal border-crossers arriving at the southern border, the numbers have plummeted.
A leaked draft of a progress report shows that the Department of Homeland Security has begun laying the groundwork to do more. The agency has identified more detention beds for undocumented immigrants, set aside monies to start designing the border wall, and sped up the hiring of thousands of federal immigration agents.
"There's an effort now to deter, to terrify," says Donald Kerwin, executive director of the Center for Migration Studies, a think tank in New York devoted to protecting the rights of migrants. Kerwin says even Trump's own rhetoric is aimed at deterring immigrants.
"What they're trying to do are very splashy, draconian enforcement efforts that are really meant to tell people: nobody is safe, and nobody should come that's not documented," Kerwin says.
"[T]he justices were not especially sympathetic to the plight of Divna Maslenjak. The 53-year-old came to the United States as a refugee in 2000, fleeing ethnic strife in the former Yugoslavia. Maslenjak became a U.S. citizen seven years later, but last fall she was deported to Serbia. U.S. immigration officials stripped her of her citizenship after she admitted that she had lied about her husband’s service in the Bosnian Serb military, but the justices seem likely to give her another shot at keeping it. Although they may not have been fans of Maslenjak personally, though, the justices were even less enthusiastic about the prospect of ruling for the government, expressing concern that such a ruling would give U.S. officials boundless discretion to take away citizenship based on even very minor lies." (emphasis added).
Adam Liptak offers a similar analysis of the Justices' reaction to the U./S. government's position.
Here is the transcript to the argument. Both sides were peppered with questions. Chief Justice Roberts seemed especially concerned with the U.S. government's position that the U.S. government might seek denaturalization of a citizen for virtually any misstatement on a naturalization petition (even one pertaining to speeding). The petitions ask extremely broad questions, including things like "have you EVER committed any crime for which you were NOT arrested?" His hypothetical to the U.S. government was whether the U.S. government could seek denaturalization for failure to disclose a speeding violation, which the naturalization petition would seem to call for even if the immigrant had not been cited or arrested for the offense. Justice Sotomayor wondered whether a failure to disclose embarrassing nicknames might result in the same; the petition asks for other names used by the immigrant seeking naturalization.
Stay tuned. We should have a decision by the end of June.
Immigration Article of the Day: Cities Rising: European Municipalities and the Refugee Surge by Martha F. Davis
Martha F. Davis, Northeastern University - School of Law, Date Written: 2017
The two major cities of the transnational Öresund region, Denmark’s capital city Copenhagen and Sweden’s third largest city Malmö, are connected physically by bridge and are in many respects a single metropolitan area. However, the national-level responses to Europe’s refugee crisis have undermined efforts to integrate the economic, transport and other aspects of the Öresund. In January 2016, Swedish border controls went into effect to stem the flow of thousands of refugees who sought to leave Denmark for the more hospitable Sweden. The disruption brought upon by this development brings to light many social issues addressed by the local – not national – level.
This essay focuses on these local impacts, examining what they indicate about the inadequacies of the current structural relationships between Europe’s local, national, and regional governments in the context of mass migration. I analyze these impacts using data compiled by the Eurocities network and through a case study of the Öresund region. First, I provide a brief overview of the role of cities in the legal framework for refugee admission and settlement, which places the exclusive decision making authority and policy responsibility at the national and regional level. Second, I examine two decision-making arenas in which cities have asserted the need for a greater voice: (a) the allocation of funds and support for refugee resettlement and inclusion, and (b) the establishment of border controls that affect local economies, using the Öresund region as a case study. Finally, I offer some observations about emerging relationships between local and national governments in Europe. In particular, I note the ways in which the refugee surge interacts with several simultaneous initiatives that are establishing stronger roles for local governments on the European and international stages, including the decentralization of functions that were once the exclusive province of nation states.
Wednesday, April 26, 2017
CNN is reporting that Trump is "considering withdrawing from NAFTA in the coming days, though President Donald Trump has not yet decided how to proceed[.]"
If you haven't been paying attention to the Canada-US news this week - there's been a kerfuffle over trade of lumber and dairy.
Still, I for one didn't think this was a precursor to NAFTA withdrawal. After all, what about that NAFTA World Cup bid just a few weeks ago?
As someone who teaches a good number of Canadian students every year, I'll be watching this one closely. And praying that the TN visa comes out of this unscathed.
UPDATE 2017_04_27: Grateful to wake up this morning to find out that Trump had "pleasant and productive" conversations with the leaders of Mexico and Canada last night and that NAFTA can stay for now. My blood pressure can't take this drama!
This is but another report examines immigrants’ impact on public safety in the United States. “Foreign-born residents of the United States commit crime less often than native-born citizens. Policies that further restrict immigration are therefore not effective crime-control strategies. These facts—supported by over 100 years of research—have been misrepresented both historically and in recent political debates.”
Despite the evidence on immigrants and crime, the Department of Homeland Security announced today the official launch of the U.S. Immigration and Customs Enforcement (ICE) Victims of Immigration Crime Engagement Office (VOICE). The VOICE office will assist victims of crimes committed by "criminal aliens." ICE built the VOICE office in response to the Executive Order entitled Enhancing Public Safety in the Interior of the United States, which directed DHS to create an office to support victims of crimes committed by criminal aliens.
The Tohono O'Odham nation straddles the U.S.-Mexico border and includes portions of Arizona and Sonora. Should President's Trump vision of an uninterrupted wall between the United States and Mexico ever come to pass, it would cut this nation in two. And it would end the free passage that the Tohono O'Odham currently enjoy when traveling within their boundaries.
The tribe has posted a video outlining their opposition to the wall:
For an even shorter clip - check out this coverage by CBS evening news:
Both clips are great additions for coursework about the border. (For readers - here's the NYT coverage).
And if you're looking for a more in depth examination of the problems facing the Tohono O'Odham pre-wall, check out this piece from one of my former OU students: Sara Daly, Bordering on Discrimination: Effects of Immigration Policies/Legislation on Indigenous Peoples in the United States and Mexico, 38 Am. Indian L. Rev. 157 (2013).
Recognized for her “exceptional promise, creativity and achievement,” Ryo is one of just 35 in the United States, honored with a 2017 Andrew Carnegie Fellowship.
Ryo was selected for her innovative and cutting-edge research on unauthorized migration, the legal attitudes of noncitizens, and immigration detention. As a Carnegie Fellow, Ryo will work on a large-scale empirical study of the nature and consequences of U.S. immigration detention. One of the study’s goals is to investigate what immigration detention teaches noncitizens about the U.S. legal system, democratic values, and the rule of law.
The Andrew Carnegie Fellowships, announced today, provide $200,000 to the 35 scholars, journalists and public intellectuals. The recipients were selected based on the originality, promise, and potential impact of their proposals.
The fellowships “support high-caliber scholarship in the social sciences and humanities, making it possible for the recipients to devote time to research and writing that addresses pressing issues and cultural transitions affecting us at home and abroad,” according to Carnegie Corporation of New York, which established the Andrew Carnegie Fellows Program.
An empirical legal scholar, Ryo has published widely in leading sociology and law journals. Her award-winning studies on unauthorized migration have been recognized as paradigm-shifting. Most recently, she led the first empirical study of long-term immigration detention and immigration bond hearings in Southern California. Her work has been covered by numerous media.
Ryo received a J.D. from Harvard Law School and a Ph.D. in sociology from Stanford University. She served as a law clerk to the Hon. M. Margaret McKeown of the Ninth Circuit Court of Appeals, and practiced law at the international law firm of Cleary, Gottlieb, Steen, and Hamilton.
On the First Person blog, Laura Rusu writes "Thirty years ago today I came to the US as a refugee, and like many before and after me, I was very eager to become part of American society." She reminds us of this nation's greatness:
"While the Administration’s Executive Order is being battled in the courts, we must continue to make our voices heard. It’s times like these – hard times – when we show who we really are. In times of great need, the America I know would expand its efforts, not curb them; find ways to be more compassionate, not less; live up to its aspirations, not down to its fears. We cannot extinguish torch of the Statue of Liberty that for decades have welcomed millions in desperate to start a new life in the United States."
The American Immigration Council has released Why Caution is Needed Before Hiring Additional Border Patrol Agents and ICE Officers. This paper by Josiah McC. Heyman, Ph.D., explains the inherent risks with any rush to increase staffing levels. Similar expansions in recent history, as detailed in the report, demonstrate that poor hiring practices in the immigration agencies result in inadequate vetting, poor supervision, and serious misconduct.
To review the report in its entirety and read the accompanying blog post, see:
- Why Caution is Needed Before Hiring Additional Border Patrol Agents and ICE Officers (Perspective, April 2017)
- Spike in Corruption Followed Last Hiring Surge at CBP and ICE (ImmigrationImpact.com