Friday, March 7, 2014
Tomorrow, March 8 is International Women's Day 2014.
This year's theme is INSPIRING CHANGE. Women's equality has made positive gains but the world is still unequal. International Women's Day celebrates the social, political and economic achievements of women while focusing world attention on areas requiring further action.Inspiring Change is the 2014 theme for our internationalwomensday.com global hub and encourages advocacy for women's advancement everywhere in every way. It calls for challenging the status quo for women's equality and vigilance inspiring positive change.
My colleagues Professors Jack Chin and Rose Villazor organized a day-long roundtable discussion at UC Davis School of Law of chapters of their forthcoming book, "Legislating a New America," on the 50th Anniversary of the Immigration Act of 1965. The book is under contract with Cambridge University Press and scheduled for release in 2015. Click here for details about the roundtable and the chapters. Here is a draft of my contribution.
This conference will be held on Saturday, April 5, 2014 (with informal events on Friday, April 4, 2014).
As the nation marks the fiftieth anniversary of the March on Washington and the Civil Rights Act of 1964, there is much to celebrate- and much cause for alarm. The country’s first black president is well into his second term, a development that would have been unthinkable just a few years ago. A number of people of color have entered the middle and upper classes, enjoying financial and educational success far beyond what prior generations could have imagined. Critical race theory scholars - once rejected by their law schools and denigrated by their colleagues - have become a part of the academy, helping to shape the discourse around race and the law and imagine new ways forward. Nevertheless, race continues to impact the opportunities we have, how we’re treated under the law, and other important aspects of our lives.
One of the panel is entitled "Looking to the Bottom: CRT and Immigrants' Rights," with confirmed panelists including César Cuauhtémoc García Hernández (Capital and Blogger, crImmigration.com), Kevin R. Johnson (University of California-Davis), Stephen Lee (University of California-Irvine), and Loreli Salas, Legal Director, Make the Road New York.
Read this interesting post on Papers, Please: The Identity Project about a lawsuit involving the U.S. Departmenl postt of Homeland Security, e-mail surveillance, and questioning of aan Indiana University Sociology professor about her sex life. The comments are almost as interesting as the original post, which made Above the Law.
The Law Of Direct Democracy is the first casebook on direct democracy. This book uses state and federal judicial opinions, the text of ballot initiatives, statutes and constitutional provisions to compare and contrast the various state laws that govern the ballot initiative, the referendum and the recall. This book also contemplates the role of interest groups, voters, courts and elected officials and examines their ability to utilize, influence and limit the initiative process. It provides students and instructors both the information they need to learn the law of direct democracy and the tools to pursue further inquiry on discrete topics of interest.
Imagine this: You're removed from the United States by expedited removal. The CBP decides you're inadmissible and they deport you on the spot. That comes with a five year ban and in some cases, a permanent ban. As you're leaving their facility, one of the officers says not to worry, you can get waivers. He hands you the forms and you go back across the border to Canada or Mexico.
What now? Do you file for the I-212 and I-192 waivers immediately or do you wait a year or two so you can show to the CBP's Admissibility Review Office that you've mended your ways and enough time has passed to think about letting you back in.
Or do you file a petition for review in federal court. You only have thirty days to do so.
If you miss that window, you're out of luck. That rule is jurisdictional and mandatory, decided in Stone v. INS (1995). The justices took on Stone because there was a conflict between the circuits about whether the clock stops while a petitioner pursued review of his deportation to the Board of Immigration Appeal before filing a petition for review with a circuit court. The justices decided that the INA of 1990 had been expressly overhauled to combat dilitary tactics by deportees. Most interesting in this decision, however, is the dissent of Justice Breyer. It merits close reading because Breyer argues that the filing deadline for a petition for review is a claims processing rule - intended to and thus should be open to equitable tolling. Breyer argues that the filing deadline for a petition for review is a claims processing rule and thus should be open to equitable tolling. More on that in a minute.
In 1996, Congress enacted the IIRIRA, a nasty piece of work that included the expedited removal apparatus, expressly designed to quickly rid the United States of convicted felon aliens and habitual immigration violators. The expedited removal statute allows only three acceptable challenges - a) are you an alien; b) was the notice of removal actually issued and c) are you a permanent resident, a refugee or have you been granted asylum? See 1252 (e)(2). Any challenge to an expedited removal had to be filed in district court as a habeas petition.
But even that option was scuttled the Real ID Act of 2005. Congress decided that a challenge to any final order of removal, be it a proceeding under INA 240 (a full deportation hearing) or INA 235 (an expedited removal), could only be heard in an appeals court. Stone's filing deadline of 90 days was whittled down to 30 days.
Interestingly, in De Ping Wang v. DHS (2007), the Second Circuit muses on that jurisdictional bar vis-a-vis habeas petitions.
We are mindful "that Congress, in enacting the REAL ID Act, sought to avoid the constitutional concerns outlined by the Supreme Court in [INS v.] St. Cyr, which stated that as a result of the Suspension Clause, `some judicial intervention indeportation cases is unquestionably required by the Constitution.'" Xiao Ji Chen v. U.S. Dep't of Justice, 471 F.3d 315, 326 (2d Cir.2006) (quoting INS v. St. Cyr, 533 U.S. 289, 300, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)) (internal footnote omitted).
It is possible that in some future case, the particular circumstances that prevented a petitioner from seeking review within the 30-day time limit of § 1252(b)(1) would require us to reexamine whether that limit ought to be treated as jurisdictional now that the petition for review is the exclusive means of obtaining "judicial intervention in deportation cases.
Does RIDA violate the Suspension Clause and thus injure those with legitimate habeas challenges to an expedited removal? It remains to be seen if any of the circuits will eventually try to grant equitable tolling to a petitioner and waive the 30 day filing deadline. Or perhaps the Supreme Court, as evidenced in their recent decision in Henderson v. Shinseki (2011), is getting closer and closer to overturning their own precedent about jurisdictional rules in civil immigration litigation.
Manuel D. Vargas, Senior Counsel at the Immigrant Defense Project, Receives Lifetime Achievement Award from Nation’s Criminal Defense Bar
The National Association of Criminal Defense Lawyers (NACDL) has presented Manuel D. Vargas, senior counsel at the Immigrant Defense Project, with its Lifetime Achievement Award. The award was presented by NACDL President Jerry J. Cox at the opening of NACDL’s 2014 Midwinter Seminar & Meeting, which is devoted entirely to the subject of the collateral consequences of conviction. For more than two decades, Manny Vargas has been a leader in the fight to protect the rights of non-citizens ensnared in America’s massive criminal justice system. He has led the criminal defense bar in coming to grips with the profound immigration consequences that may flow from virtually every encounter that an immigrant has with law enforcement. Indeed, Vargas was an initiator of the Deportation Defense Initiative, a massive pro bono effort in support of immigrant rights, and he co-founded the Defending Immigrant Partnership, a national collaboration to provide legal training and back up support for the defense bar. That partnership, of which NACDL is a proud member, is a sponsor of the collateral consequences seminar at which Vargas received this award.
As Professor Bill Hing reported on the ImmigrationProf blog yesterday, the Florida Supreme Court unanimously refused to admit to the Florida State Bar an undocumented immigrant who had been granted relief under the Deferred Action for Childhood Arrivals (DACA) program. The court agreed with the Obama administration that federal law required that, in order for Jose Gondinez-Samparion could be admitted, the state legislature must affirmatively authorize the licensing of undocumented immigrants. For further news analysis of the case, click here.
Recall that the California Supreme Court in January 2014 ruled unanimously that Sergio Garcia, and undocumented immigrant, could be admitted to the practice of law. For analysis of the implications of the case in light of the history of the exclusion of immigrants from the practice of law, click here.
In both the Califofnia and Florida cases, the Obama administration filed briefs opposing admission and argued that a state legislative enactment was required by federal law for admission of undocumented immigrants to the bar. In California, after questioning by the Justices during oral arguments suggested that the some Justices thought that legislative authorization was required, the California legislature in a matter of weeks passed such legislation. In Florida, the legislature has not addressed the question but the Florida Supreme Court invited the Florida legislature to act.
As it stands, the lack of legislative authorization seems to be the legal distinction between the California and Florida cases.
There are colorable arguments that the federal law regulating the award "benefits" from public agencies to undocumented immigrants does not apply to licenses to practice law bestowed by the state courts. A legislative fix, however, in Florida apparently would convince the Florida Supreme Court that DREAMers like Jose Godinez-Samperio can be licensed to practice law in the state consistent with federal law. Now the question is whether the Florida legislature will step up to the plate like the California Legislature did.
Thursday, March 6, 2014
Abstract: Fifty years after Congress passed the historic Civil Rights Act of 1964, unlawful discrimination continues to ail American workplaces. Despite the prevailing narrative that America is now "post-racial" after the election of the first African American president in 2008, equal opportunity still eludes many Americans. Their membership in racial, ethnic, or religious groups stigmatized as the "other" adversely affects their access to education, political empowerment, and equal opportunity in the workplace.
At the time Title VII was passed, victims often experienced explicit bias against their protected group. The law’s immediate effect was to ban overt prejudice causing disparate intergroup discrimination between men and women, blacks and whites, different ethnicities, and Christians and non-Christians. As a result, Title VII, along with other anti-discrimination laws, has been relatively successful in rooting out explicit bias in employment. Many employers now refrain from overtly treating employees disparately on account of an immutable characteristic. But, as the data show, the absence of discriminatory policies on paper does not always translate into a discrimination free workplace in practice. Rather, it pushes bias into more covert manifestations wherein facially neutral factors become proxies for unlawful discrimination.
While Title VII prohibits covert bias; it is ill equipped to prevent two increasingly prevalent forms of discrimination: 1) implicit bias arising from negative stereotypes of protected classes; and 2) disparate treatment of subgroups of protected classes who do not conform to coercive assimilationist pressures. Because an employee alleging discrimination must show that a similarly situated worker outside the protected class does not receive the same adverse treatment or impact, an employer who treats a subgroup of a minority better than another subgroup of the same minority can evade liability.
Of course, if the difference in treatment among the subgroups is based on performance and skills directly related to the work at issue, then no liability should attach. However, that is not always the case. Disparate treatment of members of the same protected class arises from negative racial, ethnic, or religious stereotypes that privileges those able and willing to perform their identity in accordance with assimilationist demands of the majority group. The effect is intragroup discrimination based on intergroup bias rooted in implicit negative stereotyping.
Female employees who fall under multiple protected classes face an intersection of identity performance pressures as women, racial or ethnic minorities, and religious minorities. The dominant group’s expectations of how women or members of minority groups should behave, dress, and communicate to be "professional" are often contradictory due to conflicting stereotypes. A Black woman, for example, who is assertive, ambitious, and exhibits leadership qualities associated as masculine characteristics, risks being stigmatized as aggressive, insubordinate, and threatening because of negative stereotypes of blacks. Meanwhile, her behavior contradicts gender conformity norms that women should be deferential, gentle, soft spoken, and pleasant. And if she is a Muslim, then her behavior triggers stereotypes of Muslims as terrorists, disloyal, foreign, and suspect.
For workplace anti-discrimination laws to eradicate these multiple binds that disparately impact women of color, this Article argues that Title VII jurisprudence should take into account intergroup discrimination based on intragroup identity performance to assure all employees, not just a subset of a protected class, are covered by workplace antidiscrimination law. A notable consequence of this Article’s thesis is that a plaintiff’s treatment should not be compared only with similarly situated employees outside the protected class but also with similarly situated employees within the protected class whose identity performance accommodates coercive assimilationism rooted in stereotypes.
This Article applies social psychology and antidiscrimination theories to the case of Muslim women of color in the workplace, an under-researched area in legal scholarship. I examine in detail the identity performance challenges and contradictions faced by Muslim women of color as "intersectionals" facing stereotypes against 1) Muslims as terrorists, violent, and disloyal; 2) Muslim women as meek, oppressed, and lacking individual agency; 3) women as sexualized, terminally second best to men, and uncommitted to their careers; 4) immigrants as forever foreign and undeserving of equal treatment; and 5) ethnic minorities from the Middle East and South Asia as barbaric, misogynist, and anti-American.I conclude that Muslim women of color are at risk of falling between the cracks of Title VII jurisprudence due to courts’ unwillingness to recognize the harms caused by coercive assimilationst pressures to conform one’s identity to comport to high status group norms, irrespective of the relevance to work performance.
Wednesday, March 5, 2014
Immigration law scholar Professor Hiroshi Motomura, Susan Westerberg Prager professor of law, has been selected to receive UCLA’s Distinguished Teaching Award. The award UCLA honors individuals who bring respect and admiration to the scholarship of teaching. UCLA honors only six such professors each year.
Professor Motomura is an influential scholar and teacher of immigration and citizenship law. He is a co-author of two immigration-related casebooks, and he has published many significant articles and essays on immigration and citizenship. His book, Americans in Waiting: The Lost Story of Immigration and Citizenship in the United States, published in 2006, won the Professional and Scholarly Publishing Award from the Association of American Publishers as the year’s best book in Law and Legal Studies, and was chosen by the U.S. Department of State for its Suggested Reading List for Foreign Service Officers. A companion volume, Immigration Outside the Law, will be published by Oxford University Press in 2014.
Shannon McConville writes on the Public Policy Institute of California blog that, despite California’s embrace of federal health care reform, millions of Californians are expected to remain uninsured even five years from now. Undocumented immigrants are likely to be a large share of this uninsured group because they are excluded from coverage under the Affordable Care Act. At the state level, legislation has been introduced (SB 1005) to provide subsidized insurance options for all low-income Californians, regardless of immigration status. California is home to an estimated 2.5 million undocumented immigrants. This population is distributed unevenly around the state, but undocumented immigrants reside in nearly every county. Los Angeles and other Southern California counties have the largest number of undocumented immigrants—nearly a million are estimated to reside in Los Angeles County alone—and this region is projected to have more than 60 percent of uninsured Californians in 2019.
The U.S. Census Bureau posted a report ("The “Second Great Wave” of Immigration: Growth of the Foreign-Born Population Since 1970" by Elizabeth M. Grieco) on its official blog that anti-immigration reform advocates, including Senator Jeff Sessions (R-Alabama) in a recent speech commemorating the Tea Party's fifth anniversary, are using the report in attacking the current reform proposal on the table.
According to the report,
"Less than 5 percent of the total population in 1970 – or less than one in 20 people – were foreign-born.
However, over the last four decades, the United States has experienced what many are calling the “second great wave” of immigration. Since 1970, the foreign-born population has continuously increased in size and as a percentage of the total U.S. population. The foreign-born population quadrupled after 1970, reaching 40.0 million by 2010, and about 13 percent of the total population – or one in eight – were foreign-born.
Once again, the country is approaching a percentage of foreign-born not seen since the late 1800s and early 1900s. Will this proportion continue to increase, perhaps exceeding the high of nearly 15 percent achieved in both 1890 and 1910?
At the moment, it is too early to tell. . . ."
Tuesday, March 4, 2014
In 2000 award-winning Korean-American filmmaker Grace Lee met Grace Lee Boggs while making The Grace Lee Project, a documentary that explores and debunks stereotypes about Asian American women who share the same name. Not content with a single interview, American Revolutionary Director Grace Lee went on to spend the next ten years filming Boggs in her home city of Detroit, an evolving relationship that has proven fruitful for both women. The daughter of Chinese immigrants who owned a restaurant in New York City, Grace Lee Boggs studied at Barnard and eventually received her Ph.D in Philosophy at Bryn Mawr. Despite her credentials, Boggs, as an Asian woman, was not able to get an academic job much less a position in a department store. She decided to move to Chicago where she could get a low-wage job at the University of Chicago Philosophy Library. While living on Chicago's south side, she started working as a tenants rights organizer within the African-American community -- her introduction to a lifelong commitment to activism.
Boggs eventually moved to Detroit, where she met her husband James ("Jimmy") Boggs - an African American autoworker and activist. Together, they formed a partnership that engaged them in the major U.S. social movements of the last century: from labor to civil rights, to Black Power, the environmental justice movements and beyond. Although Grace Lee Boggs is most well known for her involvement in the Black Power movement, her scholarship and actions defy easy categorization. In the years since James' death in 1993, Grace has become an icon in particular for Asian-Americans as well as activists of all stripes. As Director Grace Lee wrestles with this hybrid political legacy, she dives into Grace Lee Boggs's past as well as her identity as a Chinese-American woman, a background that Boggs herself has only recently acknowledged in her work. More than a decade in the making, this portrait of an author/activist whose work has touched multiple communities and generations, will appeal widely to college students.
Building on its position as a leader in challenging contemporary thought on the most pressing global issues, The New School for Social Research announces the launch of the Zolberg Center on Global Migration. The Center will provide a space for research and scholarship, policy debate, and discussion with activists and artists around issues of global migration and mobility, their economic impact, political consequences and their meaning for issues of citizenship and identity In addition to hosting key speakers and panels and conducting interdisciplinary scholarly research, starting next fall the Center will also form and fund working groups and labs around areas of common interest related to global migration amongst faculty and students.
Named for the late Ary Zolberg (1931 – 2013), Professor of Politics at the New School for Social Research and pioneer in the fields of immigration politics, studies of ethnicity, and practices of integration, the Center will kick off with an emphasis in three areas: migration and mobility within the Global South; intersections of global migration and new forms of media and technology; and the transnational relationships between emigrants and their home countries.
The first opening event features an address by Kenneth Prewitt, the Carnegie Professor of Social Affairs at Columbia University’s School of International and Public Affairs, on “What is Your Race? And Why the State Wants to Know,” discussing his forthcoming book on racial politics surrounding the United States Census on Wednesday, March 5.
The American Immigration Council invites you to celebrate the remarkable accomplishments of immigrants and advocates from around the country at an inspiring and thought-provoking ceremony at the Capitol Liaison Hotel on April 10, 2014. Click here to purchase tickets This year marks our 19th Annual Washington, DC Immigrant Achievement Awards and we are excited to announce that we will be honoring:
• Jeanne Butterfield whose recent "retirement" (we're leaving the lights on in hopes she comes back) leaves a huge vacancy in the "immigration guru" role. No one has had a more successful career in immigration law and advocacy. Her behind-the-scenes no-nonsense approach to all the major immigration milestones over the past three decades and has made lasting contributions to every facet of immigration law. From refugees to asylees, from family immigration to business immigration, Jeanne is ending her career as the grande dame of immigration.
• Rebecca and Hugo Medrano who founded the GALA Theatre and, for more than 38 years, have worked to promote and share the Latino arts and cultures with a diverse audience. Through the GALA Theatre they have created work that speaks to communities today, and preserved the rich Hispanic heritage for generations that follow.
• Eliseo Medina who for nearly 50 years has been fighting for the rights of immigrants and union workers. From the United Farm Workers' strike in 1965 to leading the Fast for Families initiative this winter, Eliseo has become a driving force in the immigration reform movement. His undying devotion to the cause has made him an icon for those fighting for the rights of others and those promoting what is right.
In addition, soon we will be recognizing our Immigrant Youth Achievement Award winner. The Immigrant Youth Achievement Award celebrates high-achieving young immigrants whose personal accomplishments and contributions demonstrate the important impact young immigrants are having on our nation every day. For more information click here.
Monday, March 3, 2014
The Los Angeles Times editorial board comments on a recent study fining a "lack of diligence" by the U.S., Customs and Border Protection's in investigating fatal encounters involving its agents. Click here for futrher analysis of the report.
Barkhad Abdi, an actor, made his cinematic debut in the 2013 film Captain Phillips, for which he received various film award nominations, including Best Actor in a Supporting Role at the Academy Awards. Abdii was born in 1985 in Mogadishu, Somalia. He was raised in Yemen. At age 14, Abdi moved with his family to Minneapolis, Minnesota. He subsequently attended Minnesota State University, Moorhead. Before entering the film industry, he worked as a limousine driver, store clerk, and disc jockey
In Captain Phillips, Abdi playes Abduwali Muse, a ship hijacker and pirate leader.
More than three out of five noncitizens under age 35 have been in the U.S. for five years or more, with a majority coming before they were 18 years old, according to a new brief recently released by the U.S. Census Bureau. Most of these immigrants — about 80 percent — were young adults from 18 to 34. The brief Noncitizens Under Age 35: 2010-2012 uses multiyear data from the American Community Survey to present demographic and socio-economic information about the noncitizen population under age 35. Noncitizens include legal permanent residents, temporary migrants, unauthorized immigrants and other resident statuses. The American Community Survey does not include a question on legal status of a resident; therefore, the brief compares only the characteristics of citizens with noncitizens.
"This brief gives an overview of some common characteristics of the younger noncitizen population," said Elizabeth Grieco, chief of the Census Bureau's Foreign-Born Population Branch. "The statistics provide new insight into the composition of this unique group."
Almost one-third of the 2.6 million noncitizens age 18 to 24 living in the U.S. were enrolled in college. Among 18- to 24-year-old noncitizens born in Asia, 65 percent were enrolled in college, followed by those born in Europe (54 percent), Africa (54 percent) and the Latin America and Caribbean region (18 percent).
Geographic Distribution and Region of Birth
Nationwide, noncitizens under age 35 represented about one-fourth (26 percent) of the total foreign-born population. At the state level, this proportion varied from about one out of five (18 percent) to two out of five (41 percent). Traditional immigration gateway states like California, Texas, New York and Florida account for the majority of noncitizens under 35. More than 64 percent of the 10.3 million noncitizens in the U.S. under the age of 35 were born in Latin America and the Caribbean. Asia (23 percent) made up the second highest group of under age 35 noncitizens in the U.S., followed by Europe (6 percent).
Other findings include:
• California had 2.3 million noncitizens under age 35, the most of any state. Following California were Texas (1.3 million), New York (916,000), Florida (747,000) and Illinois (450,000).
• Metropolitan areas with the largest number of noncitizens under age 35 included New York (1.2 million) and Los Angeles (927,000), with Chicago, Dallas, Houston and Miami all at about 400,000.
Among the civilian population, citizens age 25 to 34 (83 percent) were more likely than noncitizens of the same age range (75 percent) to be in the labor force. In addition, of those in the labor force, 65 percent of citizens compared with 60 percent of noncitizens were employed full time, year-round.
Other findings include:
• Noncitizens in the civilian labor force age 25 to 34 were more likely to work in service occupations (27 percent); followed by management, business, science and arts occupations (25 percent); and natural resources, construction and maintenance occupations (20 percent).
• Citizens in the civilian labor force age 25 to 34 were more likely to work in management, business, science and arts occupations (39 percent); sales and office occupations (25 percent); and service occupations (18 percent).