Tuesday, July 17, 2018
Galax, Virginia, is a small rural city that has one of the fastest-growing Hispanic populations in the state. Residents talk about their attitudes toward immigration and President Trump's policies. It is an interesting -- and civil -- discussion of different perspectives on immigration that made me feel optimistic.
Monday, July 16, 2018
Univision has released America First: The Legacy of an Immigration Raid – a 42-minute documentary about Postville, a small town in Iowa that “suffered the largest immigration raid at a worksite in U.S. history: 389 immigrants were arrested in the biggest kosher meatpacking plant in the country.”
On Monday, July 16 at 9 p.m., Euronews will broadcast a documentary based on its reporting on rescue operations in the Mediterranean. Euronews correspondent Anelise Borges spent 10 days on board the Aquarius, a rescue vessel operated by Médecins Sans Frontières (MSF) and SOS Méditerranée. Anelise was the only television journalist on board. She filmed around the clock, using only an iPhone, to capture the human story of the men, women and children who risked everything to reach Europe.
NPR reports on a new immigration poll. According to a new NPR-Ipsos poll, there is a better predictor than political party affiliation of how a person feels about immigration: where you get your TV news. On some questions, people who get their TV news primarily from Fox News or CNN are even further apart than Republicans and Democrats, with viewers of the other big TV networks somewhere in between. "People who get their news from Fox News actually take the strongest anti-immigrant position of any group we looked at in this survey," Chris Jackson, with Ipsos, said.
Friday, July 13, 2018
Think about it for a moment.
Be nine years old.
Have you figured it out yet?
Leon Fresco, an immigration attorney in Holland & Knight's Washington office and former deputy assistant attorney general for the Office of Immigration Litigation, in CNN reminds people that Supreme Court nominee Brett Kavanaugh should be questioned about immigration matters in his confirmation hearings. Kavanaugh has wrote few immigration opinions, having been on the U.S. Court of Appeals for the D.C. Circuit, which has a limited immigration docket (compared to the Ninth Circuit, for example). But the Supreme Court in the next few years will likely to take on many immigration matters, such as the rescission of Deferred Action for Childhood Arrivals, immigrant detention, state versus federal power with respect to immigrants, and the review of removal orders. Laura D. Francis on Bloomberg looks at how Kavanaugh might approach immigration cases in this article.
Immigration Article of the Day: Checking Rights at the Border: Detention of Migrants in International and Comparative Law by Jill I. Goldenziel
Checking Rights at the Border: Detention of Migrants in International and Comparative Law by Jill I. Goldenziel, Virginia Journal of International Law, 2018
Human rights laws, both international and domestic, present a challenge to the sovereign rights of states. The right to determine who may enter a state is one of the fundamental attributes of sovereignty. Under international law, however, states cannot return a migrant with a potentially valid asylum claim to a place where his life will be in danger, and cannot return any migrant to a place where he might be tortured. States often detain migrants while processing their asylum claims, and pending deportation if those claims should fail. Yet international law, and many states’ domestic laws, prohibit prolonged detention and restrict detention conditions. As migration flows and detention rates have swelled globally, high courts have increasingly decided cases involving the rights of detained migrants. On February 27, 2018, the U.S. Supreme Court handed down a critical decision on this issue in Jennings v. Rodriguez, allowing thousands of immigrants and asylum seekers to be detained indefinitely, without bail hearings, while remanding the case for consideration of their constitutional claims. This article compares court cases involving detention of migrants in the U.S., Australia, and Europe to determine how states can legally comply with human rights norms while preserving their right to protect their borders. Based on these cases, the article proposes best practices for state compliance with international law on detention. This comparison illuminates how courts strike a delicate balance between human rights and state sovereignty where national security interests are at stake.
Thursday, July 12, 2018
NPR reports on protest music responding the Trump administration's immigration policies. Nothing struck a public nerve in the United States like the news that children were being forcibly separated from their parents at the U.S.-Mexico border by the Trump administration earlier this year.
Social media and opinion polls condemned the policy. Hundreds of protests took place around the country. And politically engaged musicians spoke out.
Ultimately, the Trump administration changed the policy.
Immigration Aricle of the Day: Boston's Sanctuary City Protections: A Philosophical Perspective by Serena Parekh and Martha F. Davis
On January 25, 2017, President Donald Trump signed an Executive Order purporting to deny federal funding to “sanctuary cities,” i.e., local jurisdictions that choose not to cooperate with federal efforts to enforce immigration restrictions. That same day, Boston’s Mayor Marty Walsh held a press conference at City Hall, asserting that Boston would not expend police resources to support “misguided federal actions.” While the legal issues of federalism and immigration are being litigated in courts around the country, this White Paper examines this controversy through the lens of philosophy, drawing on principles of human rights to consider what is at stake when the federal government seeks to confront and dismantle “safe communities.” To ground the discussion, we focus our analysis on Boston’s self-identified status as a sanctuary city.
This White Paper proceeds in four parts. First, we set out the underlying principles of federalism relevant to this controversy. Second, we review Boston’s Sanctuary City policy, comparing its provisions to other sanctuary proposals, including a proposed Massachusetts state law. Third, grounded in philosophy, we examine why non-citizen residents within a territory have rights and the scope of those rights. Finding support in the work of John Locke and John Rawls, we show that a legitimate State must protect the human rights of all residents, not merely citizens. Then we argue that a requirement of the basic function of States is that they separate immigration enforcement from other governmental institutions that fulfill and protect human rights, such as police, schools, courts, and hospitals. Finally, we conclude that philosophical and legal perspectives point in the same direction, indicating that safe community policies are necessary components of a legitimate State and should be strengthened. Individuals cannot claim their basic human rights to security, education, basic medical care, and fair treatment if they fear deportation, and if individuals are structurally prevented from claiming their basic human rights, they are effectively denied them.
Wednesday, July 11, 2018
Raquel Aldana critically analyzes the Supreme Court's decision upholding the travel ban on The Conversation and considers the numbers of noncitizens affected. She laments that:
"The U.S Supreme Court’s ruling forecloses judicial oversight over much of President Trump’s immigration policies, at least those affecting the entry of foreign nationals. This includes those facing high stakes at the border: family separation or lack of safe harbor from persecution. For now, the nations included in the travel ban face an indefinite iron locked door, with no hope that their knocking will be answered."
Christopher Ingraham for the Washington Post reports on an important study that sheds light on the popularity of President Trump's immigration enforcement policies. "White Americans’ negative attitudes toward immigrants are driven overwhelmingly by racial prejudices, not `economic anxiety,' according to a working paper by political scientist Steven V. Miller of Clemson University."
Immigration Article of the Day: Give Me Your Tired, Your Poor, Your Pregnant: The Jurisprudence of Abortion Exceptionalism in Garza v. Hargan by Kaytlin Roholt
Give Me Your Tired, Your Poor, Your Pregnant: The Jurisprudence of Abortion Exceptionalism in Garza v. Hargan by Kaytlin Roholt, 5 Tex. A&M L. Rev. 505 (2018)
Since the inception of the abortion right in 1973, a disturbing trend has emerged in the Supreme Court’s abortion jurisprudence: The Court has nullified longstanding and universally applicable legal doctrines—and even other constitutional rights—in order to protect and expand the abortion right. But these exceptions in the context of abortion have no basis in the Constitution, and they ultimately undermine the legitimacy of the judiciary. Give Me Your Tired, Your Poor, Your Pregnant: The Jurisprudence of Abortion Exceptionalism in Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017) (en banc) argues that the D.C. Circuit’s recent decision in Garza is an extension of this larger jurisprudence of abortion exceptionalism that plagues the case law.
In Garza, the D.C. Circuit effectively held that an unlawfully present alien, with no connections to the United States aside from her 36-day detention at the U.S. border, is entitled to an elective abortion under the Fifth Amendment. This Article argues that, in so holding, the D.C. Circuit contravened clearly established Supreme Court precedent regarding the constitutional distinction between citizenship and alien status, and it elevated the abortion right above the rights actually enumerated in the Constitution. This Article then posits that the Garza decision was influenced by the Supreme Court’s larger jurisprudence of abortion-specific exceptions.
Although the Supreme Court recently granted the Government's petition for certiorari and vacated the D.C. Circuit's decision, this issue is sure to arise again. The Court must therefore seize its next opportunity to resolve the underlying legal question in Garza regarding the constitutional rights of non-citizens.
Editor's Note: Garza is the D.C. Circuit decision from which Judge Kavanaugh dissented. It likely will be discussed in the conformation process and Kavanaugh's dissent in Garza is the first case discussed in an "Open Letter from Yale Law Students, Alumni, and Educators Regarding Brett Kavanaugh," which is receiving media attention. Judge Kavanaugh is a graduate of Yale Law School.
Tuesday, July 10, 2018
On June 21, 2018, the U.S. Supreme Court issued a bombshell opinion regarding immigration court procedure: Pereira v. Sessions.
On its face, the case is a boon for certain noncitizens seeking relief from deportation. Yet, as I explore in this just-posted essay to SSRN, Pereira’s implications are far greater.
Although the Court’s opinion never mentions jurisdiction, Pereira necessarily means that immigration courts lack subject-matter jurisdiction over virtually every case filed in the last three years, plus an unknown number of earlier-filed cases. Here's why.
The Court’s opinion in Pereira, authored by Justice Sonia Sotomayor, held that “A notice that does not inform a noncitizen when and where to appear for removal proceedings is not a ‘notice to appear under section 1229(a).’” Shockingly, “almost 100 percent” of cases filed in the last three years were initiated by notice-to-appear documents that omitted the time and place of the proceeding.
How does that relate to jurisdiction? Under the regulations establishing and delimiting the authority of immigration courts, 8 CFR 1003.14(a), “Jurisdiction vests … when a charging document is filed with the Immigration Court[.]” “Charging document” is defined by 8 CFR 1003.13 as the “written instrument which initiates a proceeding before an Immigration Judge … a Notice to Appear.”
If, as Pereira clearly states, a document isn’t a notice to appear if it doesn’t have a time and place on it, then it cannot be a charging document. And, without a valid charging document, jurisdiction never vests in the immigration court.
Since subject matter jurisdiction can never be waived, each case currently pending that was initiated by an NTA lacking a time-and-place designation must be dismissed.
In the final portion of the essay, I argue that immigration courts should recognize that re-filed cases demand an immigrant-centered approach. Noncitizens should have the chance to re-litigate issues lost in the first litigation—but should be permitted to keep their wins. The government, in contrast, should be bound by its losses. This approach protects noncitizens from bearing the burden of the government’s choice to wander from the law’s requirements.
Kavanuagh Dissent in Abortion Case Involving Detained Immigrant Teen Likely to Be Confirmation Issue
Last night, President Donald Trump nominated U.S. Court of Appeals for the D.C, Circuit Judge Brett Kavanaugh to replace Associate Justice Anthony Kennedy on the U.S. Supreme Court. Here is a SCOTUSBlog profile of Judge Kavanaugh. Akhil Amar in the New York Times offers a ringing endorsement of the nominee.
As outlined in Law 360 (subscription required), Judge Kavanaugh's dissent in Garza v. Hargan (2017) will likely be an issue in the upcoming confirmation hearings. Judge Kavanaugh sharply dissented to the D.C. Circuit’s en banc decision allowing an unauthorized, unaccompanied 17-year-old immigrant in detention to have an abortion. The en banc opinion overturned a divided D.C. Circuit panel order that said the girl must be released to a sponsor before she could seek an abortion on her own, and that the government did not need to allow her abortion before then.
Judge Kavanaugh agreed with the panel opinion and the Trump administration, calling the en banc’s reversal a “radical extension of the Supreme Court’s abortion jurisprudence.” He wrote that the en banc opinion “is ultimately based on a constitutional principle as novel as it is wrong: a new right for unlawful immigrant minors in U.S. Government detention to obtain immediate abortion on demand, thereby barring any Government efforts to expeditiously transfer the minors to their immigration sponsors before they make that momentous life decision.”
Judge Kavanaugh summarizes his dissent as follows:
"As a lower court, our job is to follow the law as it is, not as we might wish it to be. The three-judge panel here did that to the best of its ability, holding true to the balance struck by the Supreme Court. The en banc majority, by contrast, reflects a philosophy that unlawful immigrant minors have a right to immediate abortion on demand, not to be interfered with even by Government efforts to help minors navigate what is undeniably a difficult situation by expeditiously transferring them to their sponsors. The majority’s decision is inconsistent with the precedents and principles of the Supreme Court – for example, the many cases upholding parental consent laws – allowing the Government to impose reasonable regulations so long as they do not unduly burden the right to abortion that the Court has recognized.
This is a novel and highly fraught case. The case came to us in an emergency posture. The panel reached a careful decision in a day’s time that, in my view, was correct as a legal matter and sound as a prudential matter. I regret the en banc Court’s decision and many aspects of how the en banc Court has handled this case."
Judge Dolly Gee rejected the Trump administration's efforts to amend the Flores settlement to allow or continued detention of minors. Her scathing conclusion:
"It is apparent that Defendants’ Application is a cynical attempt, on an ex parte basis, to shift responsibility to the Judiciary for over 20 years of Congressional inaction and ill-considered Executive action that have led to the current stalemate. The parties voluntarily agreed to the terms of the Flores Agreement more than two decades ago. The Court did not force the parties into the agreement nor did it draft the contractual language. Its role is merely to interpret and enforce the clear and unambiguous language to which the parties agreed, applying well-established principles of law. Regardless, what is certain is that the children who are the beneficiaries of the Flores Agreement’s protections and who are now in Defendants’ custody are blameless. They are subject to the decisions made by adults over whom they have no control. In implementing the Agreement, their best interests should be paramount."
As the Los Angeles Times recounts, the Justice Department had asked that the court to modify the Flores settlement so that the administration could carry out President Trump’s June 20 executive order to detain children with their parents.
Monday, July 9, 2018
Afshin Molavi, co-director of the emerge85 Lab and a senior fellow at the Foreign Policy Institute of the Johns Hopkins University School of Advanced International Studies, in the Washington Post offers insights on the benefits of immigrants to World Cup Soccer teams.
While Kylian Mbappé is an unusual talent, his background as the son of first-generation immigrants to France makes him a typical French national team player. Indeed, 17 players on France’s 23-man roster at this year’s Cup are the sons of first-generation immigrants. Other successful European squads are also stacked with talent from sons of immigrants or recent migrants themselves, notably Switzerland and Belgium. Belgium and France will be playing in the semi-finals.
With President Trump scheduled to nominate a Supreme Court Justice later today, the high Court is on the minds of many. The new Justice will replace Associate Justice Anthony Kennedy, widely identified as the key swing vote on the Court.
SCOTUSBlog has been running a symposium on Justice Kennedy's jurisprudence. The contribution by Pratheepan Gulasekaram critically analyzed immigration legacy. His conclusion: "Taken as a whole, Kennedy’s immigration jurisprudence demonstrates that his bold strides towards protecting the liberty and dignity of personhood were limited to some vulnerable minorities, but did not extend to persons covered by immigration laws and policies." This analysis is persuasive.
In addition, as I have commented, Justice Kennedy wrote few important immigration opinions, a fact that seems odd given that he came from the Ninth Circuit, which long has had many immigration cases on its docket. Indeed, when Justice Kennedy was a Ninth Circuit Judge, Judge Stephen Reinhardt in 1985 issued a major asylum decision, which the Supreme Court later affirmed. INS v. Cardoza-Fonseca (1987).
Although perhaps more of a federalism/federal supremacy as opposed to an immigration case, the Court's decision in Arizona v. United States, which Justice Kennedy wrote, exemplifies Justice Kennedy's approach to immigration identified by Professor Gulasekaram. The Court decided the case at a time when many states were passing state immigration enforcement laws in an attempt to push the Obama administration to increase enforcement efforts. The Court found much of Arizona's S.B. 1070 to intrude on the federal power to regulate immigration. At the same time, the Court allowed to go into effect the "show your papers" provision, which required state and local police to verify the immigration status of persons they suspected of being in the United States unlawfully; civil rights advocates claimed that the provision would result in racial profiling.
The decision warrants a careful look, as it had major impacts and is deeply relevant to the Trump administration's challenges to "sanctuary" states and cities. In , Justice Kennedy's majority opinion was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, and Sotomayor. The majority largely agreed with the Ninth Circuit and invalidated three core provisions of SB 1070. A five-three Court found that federal immigration law preempted sections 3 (creating a state crime for failing to carry an alien registration document), 5(c) (making it a crime under state law to work without authorization), and 6 (authorizing the warrantless arrest of persons believed to have committed an offense making them removable from the United States).
Justice Kennedy's majority opinion upheld one provision of SB 1070. Section 2(B) of the law requires state and local law enforcement officers to verify the immigration status of persons who they reasonably suspect of being in the country in violation of the immigration laws. Refusing to invalidate the provision on its face, the Court left open the possibility of challenges to its application by Arizona law enforcement authorities in individual cases.
Not able to agree among themselves, Justices Scalia, Thomas, and Alito all filed separate opinions concurring in part and dissenting in part. Most jarring among the opinions was Justice Scalia's, who would have upheld SB 1070 in its entirety. It exhibited a strident ideological tone relatively rare in a Supreme Court opinion.
As noted above, the Court's upholding of section 2(B) of SB 1070 generated considerable concern and criticism. Popularly known as the "show your papers" requirement, this provision, which can be found in many of the new immigration enforcement laws passed by the states, mandates state and local police to verify the immigration status of anyone about whom they have a "reasonable suspicion" of unlawful presence in the United States. Critics worried that implementation of section 2(B) would result in increased racial profiling of Latina/os by state and local officers in criminal law enforcement. By focusing on the technical federal preemption challenge and reserving the possibility of future "as applied" challenges, Justice Kennedy's approach allowed the Court to sidestep the most frequently voiced civil rights concern with SB 1070.
However, the Court's decision in Arizona v. United States also led to the invalidation of a number of state immigration enforcement laws that allegedly violated the civil rights of Latinos. See, e.g., United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013); United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012); Georgia Latino Alliance for Human Rights v. Governor of Georgia, 691 F.3d 1240 (11th Cir. 2012). The Court's decisions essentially stopped those state efforts in their tracks.
In short, Justice Kennedy's immigration legacy includes Arizona v. United States, which led to mixed results for the immigrant community. The Court focused on protecting the power of the federal government over immigration as opposed to the rights of immigrants.
Sunday, July 8, 2018
Trump’s Zero Tolerance Policy Could Lead to the Imprisonment of Hundreds of Thousands of Immigrants by the End of 2018
A rapidly deployed critical data & visualization intervention in the USA’s 2018 “Zero Tolerance Policy” for asylum seekers at the US Ports of Entry and the humanitarian crisis that has followed.
Elliott Young, author of the book Alien Nation (2014), on the History News Network analyze the meaning of President Trump's immigrant detention policy. He writes that "The above Torn Apart map of private and state migrant detention facilities across the country shows that we have become a nation of immigrant prisons rather than a nation of immigrants. Prison and jail populations have declined over the last decade, but that progress threatens to be reversed by Trump’s immigration detention policy.
Trump’s zero-tolerance policy for all unauthorized border crossers will fill our prisons, clog our courtrooms and lead to the building of new mass detention camps."