Thursday, July 20, 2017
In the era of Trump, immigrants who come into contact with the criminal justice system are at risk of removal. And how is one most likely to come into contact with the police? For many, it is when driving a motor vehicle.
In the Obama years, many of the arrests that resulted in immigrants being placed in removal proceedings involved driving infractions. The same is the case under President Trump, with an even more aggressive immigration enforcement agenda. Liz Robbins of the New York Times outlines the risks of driving while undocumented:
"Under a Trump administration that has taken an aggressive stance on illegal immigration, the moving car has become an easy target. A broken headlight, a seatbelt not worn, a child not in a car seat may be minor traffic violations, but for unauthorized immigrants, they can have life-altering consequences.
Routine traffic stops have always carried the threat of deportation, but during the last years of the Obama administration, when serious crimes were prioritized, the stops that simply revealed unlawful status often resulted in deferment. No longer."
President Trump, the Wall, and Immigration Policy: "Trump appears resigned to trying to remake the immigration system through a combination of executive power and rhetoric."
Ashley Parker, David Nakamura, and Philip Rucker of the Washington Post consider President Trump's efforts to fulfill his campaign promise of building "the wall" along the U.S./Mexico border. Along the way, the article looks at the President's general approach to immigration policy. Congressional action is challenging to say the least. President Trump is realizing that "changing the immigration system is unlikely to be achieved in a far-reaching bill. Any broad overhaul of the nation’s immigration laws would need the legislative buy-in of both parties, and there is widespread resistance to building a wall that many consider an ineffective boondoggle. "
With respect to the wall, it appears that the White House intends to fight hard for border wall funding in upcoming budget negotiations with Congress. Still, the article concludes, "Trump appears resigned to trying to remake the immigration system through a combination of executive power and rhetoric."
Wednesday, July 19, 2017
Professor Peter Margulies: Refugee Executive Order Update: The Supreme Court Hands Each Side a Partial Victory
Professor Peter Margulies: Refugee Executive Order Update: The Supreme Court Hands Each Side a Partial Victory
The Supreme Court issued an order (and here) today regarding President Trump’s revised Refugee Executive Order (EO) that provided comfort to both the Administration and Hawaii, which has challenged the EO. The Court left in place the portion of Hawaii U.S. District Court Judge Derrick Watson’s injunction barring application of the EO to foreign nationals abroad with U.S. relatives such as grandparents, grandchildren, uncles, aunts, nieces, nephews, and cousins. However, pending review of Judge Watson’s injunction by the Ninth Circuit, the Court ruled that the EO would apply to refugees who had received assurances from nonprofit agencies regarding resettlement in the U.S., unless those refugees also had relatives in the U.S. like those listed above. Refugees and others without qualifying relatives (approximately 40% of the total) will remain abroad unless and until the Court issues a new order modifying its remedy.
The Supreme Court’s order, like its original stay, seeks to balance the equities in a manner consistent with Chief Justice Roberts’ opinion in Nken v. Holder. The Court has issued its relief pending oral argument this October on the lawfulness of the EO. Pending a decision on the merits, Nken counsels that the court issuing the stay should not grant relief that in effect decides the lawsuit. An interim order that gives one side all of what it seeks on the merits in effect makes the underlying appeal an “idle ceremony,” as Chief Justice observed in Nken, quoting an earlier decision by the Court. The Court’s order today avoids that pitfall.
Upholding the district court’s holding that refugee agency assurances counted as a “bona fide relationship” with a U.S. person or entity under the Court’s June stay would have largely decided the travel ban case well before the Court had a chance to hear its merits in October. All noncitizens who already have received refugee status have also received agency assurances. Leaving the district court’s ruling in place would have barred application of the EO to any individuals in this group, giving Hawaii much of the relief it sought on the merits. In contrast, the government’s position that neither grandmothers et al. nor refugee agency assurances counted as a “bona fide relationship” would have given the government virtually all that it sought.
The Court’s order today rejected this “all or nothing” scenario. Instead, the Court charted a middle course on refugees, barring application of the EO to some refugees—those with a U.S. grandparent, uncle, nephew, etc.—but permitting implementation of the EO for approximately 40% of the total refugee cohort. That relief gave each side some of what it sought, but stopped well short of total victory for either party.
Wisely, the Court left the door open to revisit its order once the Ninth Circuit rules on the government’s appeal of Judge Watson’s injunction. Judge Watson was right to count refugee agency assurances as constituting a “bona fide relationship” with a U.S. person or entity. That view best describes the key functional role that resettlement agencies have performed over time in the refugee system. The complex refugee resettlement process includes many disparate strands, public and private—undue stress on an important strand such as resettlement agencies’ undertakings can rend the entire fabric. Fidelity to the comprehensive framework of the Immigration and Nationality Act requires respect for venerable refugee agencies’ earnest commitments. (See my earlier post here, which benefited mightily from conversations with former Homeland Security Principal Deputy General Counsel David A. Martin.)
My hope is that the Ninth Circuit will uphold the district court on exempting refugee assurances from the EO, and the Supreme Court will then permit Judge Watson’s entire order to go into effect. If that scenario holds, the Court’s order today will have given the Court more time to deliberate on the equities, which is appropriate given the stakes involved.
Robert Barnes in the Washington Post reports that the Supreme Court today entered an order in connection with its review of President Trump’s travel ban, saying the government may enforce tightened restrictions on refugees for now but also must allow into the country more travelers from six mostly Muslim countries who have family members already here.
The order in effect means that the administration must continue to accept those with grandparents, aunts and uncles and other relatives in the United States. The Trump administration had set a stricter interpretation of who could be admitted under an order in June.
The court said that it would not, for now, disturb the district court’s decision that expanded the definition of close family ties. But it granted the government’s request to put on hold a part of the decision that would have made it easier for more refugees to enter the country.
Here is the order in its entirety:
Yale Law School Coat of Arms
Asian Americans have been the fastest-growing minority group in the legal profession for the past three decades, but they have made only limited progress in reaching the top ranks of the profession, according to a new report released by the National Asian Pacific American Bar Association and Yale Law School (and here). The report, titled A Portrait of Asian Americans in the Law, is the first-ever comprehensive study of Asian Americans in the legal profession.
According to the study, there are over 50,000 Asian American lawyers today, compared to 10,000 in 1990. Asian Americans comprise almost 5 percent of lawyers in America and roughly 7 percent of law school enrollment. Asian Americans are the largest minority group in big law firms, but they have the highest attrition rates and the lowest ratio of partners to associates.
Asian Americans comprise 3 percent of federal judges and 2 percent of state judges, compared to nearly 6 percent of the U.S. population. Only three out of 94 U.S. Attorneys in 2016 were Asian American, and only four out of 2,437 elected district attorneys nationwide in 2014 were Asian American.
The two-year study — authored by California Supreme Court Justice Goodwin H. Liu , recent Yale law graduates Eric Chung ’16, Xiaonan April Hu ’16 and Christine Kwon ’16, and Yale law postgraduate associate Samuel Dong — included a dozen focus groups and a national survey of over 600 Asian American lawyers.
Tuesday, July 18, 2017
From the Bookshelves: The Politics of New Immigrant Destinations: Transatlantic Perspectives Edited by Stefanie Chambers, Diana Evans, Anthony M. Messina, and Abigail Fisher Williamson
Edited by Stefanie Chambers, Diana Evans, Anthony M. Messina, and Abigail Fisher Williamson
Migration to new destinations in Europe and the United States has expanded dramatically over the past few decades. Within these destinations, there is a corresponding greater variety of ethnic, cultural, and/or religious diversity. This timely volume, The Politics of New Immigrant Destinations, considers the challenges posed by this proliferation of diversity for governments, majority populations, and immigrants.
The contributors assess the effectiveness of the policy and political responses that have been spawned by increasing diversity in four types of new immigrant destinations: "intermediate" destination countries—Ireland and Italy; culturally distinct regions experiencing new migration such as Catalonia in Spain or the American South; new destinations within traditional destination countries like the state of Utah and rural towns in England; and "early migration cycle" countries including Latvia and Poland.
The Politics of New Immigrant Destinations examines how these new destinations for immigrants compare to traditional destinations, with respect to their policy responses and success at integrating immigrants, offering perspectives from both immigrants and natives.
Contributors include: Dace Akule, Amado Alarcón, Rhys Andrews, Francesca Campomori, Tiziana Caponio, Scott Decker, Erica Dobbs, Melissa M. Goldsmith, Aleksandra Grzymała-Kazłowska, Claudio A. Holzner, Magdalena Lesińska, Paul Lewis, Helen B. Marrow, Laura Morales, Katia Pilati, Marie Provine, Monica Varsanyi, and the editors.
There are many immigrants in the health care industry. This Migration Information Source Spotlight (Immigrant Health-Care Workers in the United States) offers data on the approximately 2.1 million immigrants work in health-care occupations in the United States, comprising nearly 17 percent of the 12.4 million doctors, nurses, dentists, and other health-care professionals. Learn more about immigrant health-care workers in the United States with this data-rich article, including top occupations nationally and by state, countries of origin, educational levels, visa pathways, and much more.
The BBC is reporting on the detention and deportation of more than 100 Iraqi Christians (Chaldean Catholics) in Michigan.
The niece of one man detained said this: "My entire community voted for Donald Trump. Our priest, our church, everyone wanted us to vote for him. We all rooted for him and we were really happy when he got elected. But we did not think he would do this to our people."
Her priest, Father Kassa, countered: "No the Chaldean community does not regret its voting for President Trump. I would say that we are asking for him to, we have hope that he's hearing our situation..."
That situation, as Father Kassa sees it, is not just "persecution" of Chaldean Catholics in Iraq. Their deportation is a "death sentence."
One of Cuba's many old cars on a street in Havana. (Photo: Pedro Szekely)
The Migration Information Source profile on Cuba (Cuban Migration: A Postrevolution Exodus Ebbs and Flows) look at immigration from Cuba to the United States. The Cuban Revolution unleashed a massive exodus from the island. Cuba is now among the top origin countries of immigrants in the United States—where for decades they have received preferential treatment—with smaller numbers across Europe and Latin America. This article explores the evolution of Cuban migration, particularly within the context of the Cold War and shifting U.S. policies toward the country.
Cyrus Mehta: Supreme Court’s Heightened Standard for Revoking Naturalization Should Apply to All Immigration Benefits
In a blog post entitled Supreme Court’s Heightened Standard for Revoking Naturalization Should Apply to All Immigration Benefits, immigration attorney Cyrus D. Mehta analyzes the Supreme Court's decision in Maslenjak v. United States, which involved the question when a misrepresentation in the naturalization process may lead to loss of U.S. citizenship. Divna Maslenjak, an ethnic Serb, lied during her naturalization process about her husband’s service as an officer in the Bosnian Serb Army. When this was discovered, the government charged her with knowingly procuring her naturalization contrary to law because she knowingly made a false statement under oath in a naturalization proceeding. A lower courts ruled that to secure a conviction, the government need not prove that her false statements were material to, or influenced, the decision to approve her citizenship application. The Supreme Court disagreed.
Guest Blog Post by Professor Rebecca Sharpless: Justice Delayed but Not Denied: Eleventh Circuit on Deliberate Misrepresentation
The Eleventh Circuit has ruled in Alfaro v. U.S. Attorney General that a trailer in a jungle run by contra insurgent fighters during the Nicaraguan civil war is not a prison. Roger Alfaro—a Nicaraguan man who was recruited at age 17 to fight for the Contras—did not misrepresent when he answered “no” to a question on the 1982 version of the adjustment application asking whether he had ever been “confined to a prison.” As Mr. Alfaro explained during his pro se removal proceedings, the contras had put him in a jungle trailer while they conducted an investigation into an incident involving a Sandinista soldier.
Mr. Alfaro litigated his case without the help of an attorney, while detained, for over three years. First to the judge and then to the Board of Immigration Appeals, he argued that the trailer run by the contras and was not part of the Nicaraguan government’s “jail system.” But no one—not the immigration judge, the government trail attorney, or the single Board member who denied his appeal—was able to see that a rebel-run trailer is not a prison. The attorney from the Office of Immigration Litigation, in a desperate bid to justify the Board decision, articulated for the first time at oral argument the unspoken, jingoist logic of the agency: The confinement must have been based on lawful authority because the U.S. had backed the Contras. Rejecting this reasoning took the Eleventh Circuit no effort at all.
Mr. Alfaro counts as yet another victim of the Reagan era’s war on communism. And his struggle is not over. The next battle will be returning Mr. Alfaro to his wife, children, and grandchildren in Florida. While there is reason to hope that the government will do the right thing by Mr. Alfaro, ICE has a poor track record on bringing wrongly deported people home. See National Immigration Project practice advisory.
Born in Sierra Leone, ballet dancer Michaela DePrince was orphaned at the age of three. Born Mabinty Bangura to a Muslim family, she was sent to an orphanage where the "aunties" who cared for the children believed that her skin condition, vitiligo, was a curse and called her the "devil’s child." In 1999, DePrince was adopted by a U.S. couple. Inspired by a picture of a ballerina she saw on a magazine in Sierra Leone, DePrince trained as a ballet dancer, winning a scholarship for the Jacqueline Kennedy Onassis School at the American Ballet Theatre. In 2013, she joined the Dutch National Ballet.
DePrince tells her story in the book Taking Flight: From War Orphan to Star Ballerina.
Immigration Article of the Day: Understanding Secondary Immigration Enforcement: Immigrant Youth and Family Separation in a Border County by Nina Rabin
Understanding Secondary Immigration Enforcement: Immigrant Youth and Family Separation in a Border County by Nina Rabin, University of Arizona - James E. Rogers College of Law
47 Journal of Law & Education ___ (2018 Forthcoming)
Young people in immigrant families are often characterized as a separate population in debates over immigration reform, with distinctive claims and interests as compared to their parents. Bifurcating the undocumented population between children and parents over-simplifies how immigration enforcement impacts families. This article challenges the dichotomy between children and parents by studying how young people who are not direct enforcement targets are nevertheless impacted by immigration enforcement policies, regardless of their own immigration status. These impacts, which I call “secondary immigration enforcement,” often manifest as family separations. To render secondary immigration enforcement visible, I studied 38 young people in Arizona who are living on their own – without either biological parent – at least in part because of immigration enforcement policies. Drawing on in-depth interviews and self-assessments of psycho-social functioning, I describe what secondary immigration enforcement looks like and how it operates. I illustrate that deportation statistics alone fail to capture the extent of immigration enforcement because they do not encompass the complex impacts of secondary enforcement. In addition to the acute disruptions caused by deportations of family members, the young people in the study also experienced family separation as a result of immigration enforcement’s interaction with three other key factors: family dysfunction, extreme poverty, and educational aspirations.
Monday, July 17, 2017
“According to a recent study from the University of California, Riverside, cities with these policies have more violent crime on average than those that don’t,” he said, according to a Department of Justice transcript of the speech. But the study didn’t said the opposite.
“There wasn’t actually any relationship between the passage of a sanctuary policy and that city’s crime rate,” Benjamin Gonzalez O’Brien, one of the study’s authors, told Inside Higher Ed. “All of the data to date suggests that either there’s no relationship, which is what our study found, or there’s an inverse relationship.” Gonzalez O’Brien about the findings of the study on The Washington Post’s “Monkey Cage” blog in October. The post was titled, bluntly, “Sanctuary Cities Do Not Experience an Increase in Crime.”
President Trump Intervenes to Ensure that Robotics Team from Afghanistan is Issued Visas, Can Compete in Global Robotics Competition in the US
Here is a much-needed "feel good" immigration story -- and, in a turn of events that might surprise some, President Trump helped make it happen.
Moriah Balingit of the Washington Post reports on the inspirational journey to the United States of a group of young women from Afghanistan who will be participating in the FIRST Global Robotics Challenge. Their dream of traveling to what has been billed as the “Olympics of Robotics” had been shot down when their visas were denied, despite two grueling trips from their home in Herat to Kabul for interviews with the U.S. State Department. Invoking the doctrine of consular nonreviewability, the State Department refused to comment about why the visas were initially denied. After the story made international headlines, President Trump intervened to ensure that the visas were issued. The Afghani robotics team arrived in the United States on Saturday.
Balingit reports on the competition:
"The three-day competition draws teams from 157 countries — and some multinational teams representing continents. One group — Team Hope — is composed of refugees. FIRST has long hosted competitions in the U.S., but this is the first year it is hosting an international competition. The team representing the U.S. is composed of three girls, who marched into the auditorium for the parade of nations to the Woody Guthrie song `This Land is Your Land.'”
The team from Gambia also reportedly had issues with their visas, according to the Associated Press, before their applications were also ultimately approved. Because of sanctions, Global FIRST was unable to ship a robotics kit to Iran, where a group of teenagers was awaiting the parts to build a robot.
Sunday, July 16, 2017
From the Bookshelves: Diary of a Reluctant Dreamer: Undocumented Vignettes from a Pre-American Life by Alberto Ledesma
United Farm Workers President Arturo S. Rodriguez, Cesar Chavez family members, and farm workers are taking part in the opening ceremony for the first Farm Worker Exhibit in the 164-year history of the California State Fair today in Sacramento. The exhibit can also be visited any day during the fair, which runs from July 14 to July 30—Monday-Thursday at Cal Expo & State Fair, 1600 Exposition Blvd., Sacramento.
The State Fair has celebrated California agriculture since the mid-19th Century. This is the first time professional farm workers who have played a central role in the industry will be recognized.
A Pakistani-American comic falls in love with an American graduate student, but because of cultural pressures from his family, he is forced to keep the relationship a secret. It is only when she becomes mysteriously ill and is put into a medically induced coma that he decides to tell his family about the woman he loves.
That is the plot of the new film The Big Sick, but it is also the story of how the film's co-writers, Kumail Nanjiani and Emily V. Gordon, met and fell in love in real life. Terry Gross on NPR's Fresh Air interviewed the co-writers and talked about their real life story.
Married co-writers Emily V. Gordon and Kumail Nanjiani based the romantic comedy The Big Sick on their own love story. Angela Weiss/Getty Images
Immigration reforms passed by Congress in 1996 created “expedited removal,” see Immigration and Nationality Act § 238, 8 U.S.C. § 1228, a process of abbreviated procedures and judicially unreviewable deportation decisions. Before 2017, expedited removal had been limited to noncitizens (1) apprehended within 100 miles of the U.S. border; and (2) in the country for less than two weeks. Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877 (Aug. 11, 2004). Noncitizens apprehended near the U.S. borders who have been in the United States for a relatively short period of time are likely to have fewer established ties to this country, such as family, friends, employment, and community, than longer term residents; such limited ties to the United States make it easier to justify speedy removal with limited process. Nonetheless, expedited removals of any noncitizens without judicial review raise serious constitutional questions. See, e.g., Gerald L. Neuman, The Habeas Corpus Suspension Clause After Boumediene v. Bush, 110 Colum. L. Rev. 537, 571-77 (2010). For criticisms of expedited removal as implemented, see U.S. Comm’n on Int’l Religious Freedom, Report on Asylum Seekers in Expedited Removal (2005).
Sections 11(b) and (c) of President Trump’s January 25, 2017 Border Security Order promise to greatly expand the current scope of expedited removal. The order eliminated the geographic limits to expedited removal and made the procedures applicable to noncitizens in the country for as long as two years. By so doing, the order effectively extends the border for purposes of summary immigration enforcement. Summary deportations of persons, with family (including U.S. citizen children), friends, community, and a job — put differently, ties to the United States -- raise substantial Due Process and related questions.
I have been of the opinion that, if the Trump administration seeks to implement the expanded expedited removal provisions of the executive order through regulations, legal challenges on constitutional and other grounds are likely. The Fifth Amendment guarantees Due Process rights to all immigrants, including undocumented immigrants, physically present in the United States. The Supreme Court has generally held that, before they can be removed from the United States, noncitizens physically present in the country – no matter the length of time or immigration status (i.e., undocumented immigrants have due process rights) – are entitled to a hearing that comports with Due Process. See, e.g., Bridges v. Wixon, 326 U.S. 135, 161 (1945); Kwong Hai Chew v. Colding, 344 U.S. 590, 603 (1953); Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S. 86, 99-100 (1903). The Court has consistently found that, because of the significant interests of the noncitizen physically present in the United States at stake, a removal hearing with full Due Process rights is required by the Constitution. See, e.g., Fong Haw Tan v. Phelan, 333 U.S. 6, 10 (1948) (“Deportation is a drastic measure and at times the equivalent of banishment or exile.”); Bridges v. Wixon, 326 U.S. 135, 147 (1945) (emphasizing that “deportation may result in the loss ‘of all that makes life worth living’”) (citation omitted) (emphasis added). Consequently, the Supreme Court on several occasions has ruled that, even when Congress appeared to eliminate all judicial review of an order, removing a noncitizen from the country the Constitution requires some kind of judicial review. See, e.g., INS v. St. Cyr, 533 U.S. 135, 147 (2001).
The Supreme Court’s decision in Landon v. Plasencia, 459 U.S. 21 (1982); which involved the denial of entry into the United States of a long-term lawful permanent resident who had left the country for a weekend in Mexico, is the modern touchstone for determining the scope of Due Process rights of noncitizens. It likely will be at the center of any Due Process challenge to expanded expedited removal.
The Washington Post reports that the Trump administration is considering the implementation of expanded expedited removal as outlined in the executive order. The Post reportedly obtained "a 13-page internal agency memo" detailing the changes. "Two administration officials confirmed that the proposed new policy, which would not require congressional approval, is under review. The memo was circulated at the White House in May, and DHS is reviewing comments on the document from the Office of Management and Budget, according to one administration official familiar with the process . . . . "
The Post story states that an expansion of the expedited removals process would be “a recipe for disaster,” according to Lee Gelernt, the deputy director of the American Civil Liberties Union’s Immigrants Rights Project.
“If you have to give people genuine due process, you can’t just move people out of the country with the snap of your fingers,” Gelernt said. “But once you start instituting summary removal processes all over the country, then you can start seeing mass deportations.”
“Right now, someone apprehended in St. Louis would be entitled to a full hearing,” he said. “With expedited removal, you pick a person up, and they could be gone immediately.”
Expanded expedited removal would be a big step for the Trump administration. Stay tuned for updates on further developments.
Saturday, July 15, 2017
Check out CNN's coverage of the life of a teenage refugee in Europe. The report includes photographs taken of the teen, Milad, and his story is told in an engaging way. Unusually, it also includes some of Milad's own drawings, such as this one depicting his journey from Afghanistan to Germany.
There are also photographs taken by Milad in Germany, with drawings and annotations.
With this story, CNN delivers unusually deep and multi-layered coverage of a topic that's of keen interest to our readers.