Tuesday, March 20, 2018
This NYT Article about Canada's struggles to care for Yazidi refugees is a must read.
The Yazidis are a small, non-Muslim, religious and ethnic minority mostly from the Northern Iraq. (You can read more about their religion and history here.) They've been the target of extreme violence at the hands of ISIS or the Islamic State. As one French priest has documented, Yazidi men have been killed, women sold into sex slavery, and children taken away.
Some Yazidi refugees have made their way to Canada. And, as the NYT reports, Canada has been unprepared for the “unimaginable trauma, both physical and emotional” that these refugees have suffered.
The Yazidi refugees suffer from PTSD, manifesting in seizures, night terrors, and flashbacks. The article does an excellent job describing these events.
In addition, the article is unique in picking up on the issue of secondary trauma. The author notes that "[c]ounselors, doctors and other workers are hearing such upsetting stories that they themselves need treatment."
It's a powerful, emotional read that might lead to great classroom discussion.
BTW - if you're interested in the Yazidi who've settled in the US (to Lincoln, Nebraska!) -- PBS News Hour covered that story back in January.
From the Bookshelves: Crossroads: Comparative Immigration Regimes in a World of Demographic Change by Anna K. Boucher and Justin Gest
Crossroads: Comparative Immigration Regimes in a World of Demographic Change by Anna K. Boucher and Justin Gest, Virginia Publication planned for: April 2018
In this ambitious study, Anna K. Boucher and Justin Gest present a unique analysis of immigration governance across thirty countries. Relying on a database of immigration demographics in the world's most important destinations, they present a novel taxonomy and an analysis of what drives different approaches to immigration policy over space and time. In an era defined by inequality, populism, and fears of international terrorism, they find that governments are converging toward a 'Market Model' that seeks immigrants for short-term labor with fewer outlets to citizenship - an approach that resembles the increasingly contingent nature of labor markets worldwide.
Immigration Article of the Day: Invoking Common Law Defenses in Immigration Cases by Fatma E. Marouf
This Article argues that we should take a deeper look at the applicability of federal common law defenses in immigration cases. In the rare cases where noncitizens attempt to raise common law defenses, such arguments tend to be dismissed offhand by immigration judges simply because removal proceedings are technically civil, not criminal. Yet many common-law defenses may be raised in civil cases. Additionally, immigration proceedings have become increasingly intertwined with the criminal system. After examining how judges already rely on federal common law to fill in gaps in the Immigration and Nationality Act (INA), this Article proposes three categories of removal cases where federal common law defenses are particularly viable. The first category involves INA provisions that require conduct to be unlawful without requiring a conviction; the second category involves INA provisions barring asylum, which are closely connected to principles of criminal culpability; and the third category involves certain grounds of removal with no explicit mens rea requirement. Finally, the Article examines some of the legal and practical challenges to prevailing with these defenses in the removal context, drawing on criminal cases where such defenses have been raised to immigration-related charges. The Article concludes that a more principled approach to the use of federal common law defenses in removal proceedings is necessary in order to promote consistent and fair adjudication.
Monday, March 19, 2018
Just a few weeks after deciding Jennings v. Rodriguez, the Supreme Court granted review today in Nielsen v. Preap, another immigrant detention case. The issue in the case is whether a criminal noncitizen becomes exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately.
In an opinion by Judge Nguyen, joined by Judges Klienfeld and Friedland, the panel affirmed the district court’s class certification order and preliminary injunction in a class action habeas petition brought by criminal noncitizens subject to mandatory detention under 8 U.S.C. § 1226(c). The panel held that under the plain language of 8 U.S.C. § 1226(c), the government may detain without a bond hearing only those criminal aliens it takes into immigration custody promptly upon their release from the triggering criminal custody. The panel specified that it was holding that the mandatory detention provision of § 1226(c) applies only to those criminal aliens detained promptly after their release from criminal custody, not to those detained long after.
Mike Lillis on The Hill reports that Democratic leaders are backing off of their demand that immigration be a part of the 2018 budget negotiations.
While House Minority Leader Nancy Pelosi (D-Calif.) and other Democratic leaders had hinged their support for last month’s budget caps deal on a commitment from Republicans to consider legislation salvaging the Deferred Action for Childhood Arrivals (DACA) program, they’ve signaled they won’t hold a similar line heading into next week’s expected vote on an omnibus spending bill.
The apparent change in strategy has angered immigrant rights advocates in and out of Congress, who want the minority Democrats to use their rare leverage on the enormous government funding package — among the last must-pass bills of the year — to secure protections for the hundreds of thousands of young immigrants who unlawfully came to the country as children.
Democratic leaders want appropriators in both parties to drop all contentious “riders” for the sake of easing passage of the omnibus and preventing a government shutdown ahead of March 23, when funding expires.
Send Them Back by Irwin Stotsky, forthcoming May 2018
Send Them Back that tells part of the story of a remarkable attempt, which spanned four decades, to bring the rule of law to refugees from the troubled nation of Haiti. It discusses several of the cases that civil rights lawyers, working directly with Haitians and other activists, filed and litigated for Haitian refugees, and the legal, social, and political aspects of such litigation. The litigation fostered structural legal changes, policies meant to cure the inequities in the treatment of refugees, and a determined political opposition to unfair and illegal immigration decisions.
Immigration Article of the Day: Damaged Bodies, Damaged Lives: Immigrant Worker Injuries as Dignity Takings by Rachel Nadas and Jayesh Rathod
Damaged Bodies, Damaged Lives: Immigrant Worker Injuries as Dignity Takings by Rachel Nadas and Jayesh Rathod, Chicago-Kent Law Review, Vol. 92, No. 3, 2017
Government data consistently affirm that foreign-born workers in the U.S. experience high rates of on-the-job illness and injury. This article explores whether—and under what circumstances—these occupational harms suffered by immigrant workers constitute a dignity taking. The article argues that some injuries suffered by foreign-born workers are indirect takings by the state due to the government’s lackluster oversight and limited penalties for violations of occupational safety and health laws. Using a framework of the body as property, the article then explores when work-related injury constitutes an infringement upon a property right. The article contends that the government’s weak enforcement apparatus, coupled with state-sanctioned hostility towards immigrants, creates an environment where immigrant workers are deemed to be sub-persons, and where employer impunity abounds. Drawing upon data gleaned from a research study of immigrant day laborers in northern Virginia, the article describes a range of practices by employers in cases of workplace accidents, noting the circumstances that are indicative of dehumanization, and thus, dignity takings.
Sunday, March 18, 2018
NPR reports on a troubling patter of immigration arrests. Is the Trump administration retaliating against activists that criticize its harsh immigration policies?
Immigrant advocates across the country and the American Civil Liberties Union assert that federal immigration agents are increasingly targeting activists who oppose them, help undocumented immigrants, and are quoted in the media.
The following cases have been brought to light by lawyers who claim activists' free speech rights are being violated. Most are in the country illegally and have been arrested or are under deportation orders. Some have criminal records, several do not.
Immigration and Customs Enforcement, the agency most frequently criticized for arresting activists, categorically rejects the accusation that it is singling them out. ICE says it does not retaliate against unlawful immigrants for critical comments they make, and any suggestion to the contrary is "irresponsible" and "speculative." ICE says that any individual in violation of immigration laws may be subject to arrest, detention, and removal.
The report identifies cases of more than 20 activists and volunteers that have been highlighted by immigrant advocates as retaliatory. One example:
"On March 1, 2017, a 22-year-old immigrant activist from Argentina named Daniela Vargas was leaving a rally in Jackson, Miss., where she had spoken in favor of undocumented rights. ICE pulled over the car she was riding in and arrested her because her DACA status had expired. Vargas, who was brought to the U.S. as a child, had received Deferred Action for Childhood Arrivals, which grants her a temporary work permit and protection from deportation. She says she had applied to renew it. She was detained for 10 days and released."
The U.S. Court of Appeals for the Ninth Circuit has ordered an expedited briefing schedule in the consolidated appeals to a group of case, including the district court injunction of the rescission of the Deferred Action for Childhood Arrivals (DACA) policy. Arguments in the case will take place in May. And the panel has not yet been announced: "The Clerk shall calendar these cases before a randomly selected panel of all Ninth Circuit Judges among all possible sittings in May 2018. "
In denying immediate review of the district court injunction, the Supreme Court noted that it assumed that the Ninth Circuit would decide the case "expeditiously."
After a campaign denigrating Muslims “as sick people,” blaming the children of Muslim Americans for terrorism, and promising to “shut down” Muslim immigration, and mere days after his inauguration, President Donald J. Trump banned the nationals of seven majority-Muslim countries from entry into the United States. In the litigation that followed, one question persisted: does the plenary power doctrine, which gives vast authority to the political branches to select criteria for exclusion, tolerate racial or religious animus? Currently, the Supreme Court reviews exclusion decisions deferentially for the existence of any “facially legitimate and bona fide reason,” under Kleindienst v. Mandel, but explicit animus raises a key question: what effect, if any, does explicit presidential animus have on this deferential standard of review?
Current jurisprudence accounts for animus in conflicting ways. To curb the discriminatory impact of plenary power, some courts have turned to Justice Kennedy’s concurring opinion in Kerry v. Din and interpreted deference not to apply where a complainant has “plausibly” alleged animus “with sufficient particularity.” Other judges have maintained that the President need identify only one legitimate reason, no matter how insignificant, for the policy to prevail, even if there is “smoking gun” evidence of animus.
This Article argues that neither approach properly tracks how deference works. Analyzing deference and analogous doctrines in other areas of law, this Article argues that courts should use a mixed motives framework that invalidates a contested law only where the impermissible motive was a “but-for” motive for the law. Under this approach, plaintiffs must “plausibly” allege animus with “sufficient particularity.” The government may then assert an affirmative defense that it would have made the same decision regardless of animus. After direct evidence of animus is proffered, the government must prove that animus was not a “but-for” cause of the contested law. This framework invalidates policies lacking sufficient non-animus justifications, but permits laws for which animus is not a necessary motive. This Article addresses objections that the proposed approach insufficiently defers to the political branches, and, alternatively, that it constitutes a “toothless” test. Ultimately, this Article seeks to offer a way for courts to capture better the benefits of immigration deference while minimizing the costs.
From the Bookshelves: Refugee Law and Policy: A Comparative and International Approach by Karen Musalo, Jennifer Moore, Richard A. Boswell, Annie Daher, 5th edition, July 2018
Refugee Law and Policy: A Comparative and International Approach by Karen Musalo, Jennifer Moore, Richard A. Boswell, Annie Daher, 5th edition, July 2018
The fifth edition of Refugee Law and Policy, which reviews legal developments through early 2018, provides a thoughtful scholarly analysis of refugee law and related protections such as those available under the Convention against Torture. The book is rooted in an international law perspective and enhanced by a comparative approach. Starting with ancient precursors to asylum, the casebook portrays refugee law as dynamic across time and cultural contexts.
Although Refugee Law and Policy is directed toward students of US law, it draws on the legislation, jurisprudence and guidelines of other Refugee Convention and Protocol signatories, including Canada, the United Kingdom, Germany, Australia, New Zealand, and South Africa. The casebook is up to date on developments to harmonize refugee policy within the European Union, and includes discussion of relevant EU directives. Refugee Law and Policy also compares current trends in refugee law to parallel trends in human rights and humanitarian and international criminal law. In its treatment of both US and global trends, Refugee Law and Policy examines some of the most controversial contemporary issues in refugee law. This edition incorporates discussion of reforms and developments stemming from 9/11 and the wars in Iraq and Afghanistan, the Syrian refugee crisis, and the increase or “surge” in refugees entering the US as a result of rising violence in the northern triangle countries (El Salvador, Honduras, and Guatemala) of Central America over the last decade. It expands its focus on the denial of access to the territory of the country of asylum through use of interdiction, as well as expedited removal and similar “accelerated” procedures. It also discusses punitive measures intended to deter asylum seekers, such as the increased use of detention.
Refugee Law and Policy also carefully examines developments in the substantive interpretation of asylum claims. This edition includes substantial materials on the cutting-edge area of social group claims and their relevance to claims for protection based on gender-based persecution and LGBT status, as well as in the context of claims based on fear of gangs. It includes an extensive discussion of the “social distinction” and “particularity” requirements, which have had a significant impact on the scope of protection. Since the casebook addresses both substance and procedure, with a focus on practice as well as theory, it is an excellent text not only for students, but for practitioners and those in government agencies as well.
Saturday, March 17, 2018
Did you know that there is a entity out there purporting to measure world happiness? Part of me wonders if this sort of calculus has as much meaning as this amazing pie chart (% that resembles Pac-man) or this exceptional graph (toast to tree ratio).
Nonetheless, happiness is measured. And, guess what? We're not all that happy in the United States. I mean, we made the top 20--coming in at #18. But we fell this year and last year.
Obviously we're doing better than the lowest-ranked nations. Those would be Burundi, the Central African Republic, and South Sudan.
WaPo interviewed the folks behind the numbers. And it turns out they care about immigration: "The most striking finding is the extent to which happiness of immigrants matches the locally born population... The happiest countries in the world also have the happiest immigrants in the world."
So who is the happiest of all? Finland, as it turns out. Where, as the BBC reports, you can enjoy saunas, mental bands, live reindeer, and Angry Birds.
From the Bookshelves: Immigration and Nationality Law: Cases and Materials, Fifth Edition, by Richard Boswell
Immigration and Nationality Law: Cases and Materials, Fifth Edition, by Richard Boswell, forthcoming June 2018
The fifth edition of Immigration and Nationality Law provides both a practical and theoretical framework for understanding the issues and procedural rules which constitute current US immigration law. The book covers all aspects of what is commonly regarded as immigration and nationality law, covering immigrant rights, citizenship, expatriation, inadmissibility, deportability, removal, waivers, relief from removal, asylum and refugees, nonimmigrant visas, and acquisition and loss of permanent residency. All of this is approached from both a substantive and procedural context, using problems and flow charts to help the student or new practitioner to more easily grasp this complicated subject matter.
The fifth edition has been significantly revised and incorporates case law and developments through December 2017 including the Travel Ban, DACA, and sanctuary city litigation. Since the book addresses both substance and procedure, with a focus on practice as well as theory, it is an excellent text not only for students, but for practitioners and those in government agencies.
Immigration and Nationality Law also includes a dynamic Teacher’s Manual which summarizes the cases providing additional questions and problems that can be used by the instructor,
My intended focus is on the widespread response – in cities, churches, campuses and corporations that together comprise “sanctuary networks” – to the Trump Administration’s Executive Order 13768 Enhancing Public Safety in the Interior of the United States as an instance of the changing relationship between federal, local, and private organizations in the regulation of immigration. After briefly covering the legal background of the Trump interior E.O., the focus of the essay shifts to the institutional dynamics arising in communities. These institutional dynamics exemplify the beginnings of a reimagined immigration enforcement policy with a more integrative flavor.
Friday, March 16, 2018
From the Bookshelves: Brokering Servitude: Migration and the Politics of Domestic Labor during the Long Nineteenth Century by Andrew Urban
From the era of Irish Famine migration to the passage of quota restrictions in the 1920s, household domestic service was the single largest employer of women in the United States, and, in California, a pivotal occupation for male Chinese immigrants. Servants of both sexes accounted for eight percent of the total labor force – about one million people. In Brokering Servitude, Andrew Urban offers a history of these domestic servants, focusing on how Irish immigrant women, Chinese immigrant men, and American-born black women navigated the domestic labor market in the nineteenth century – a market in which they were forced to grapple with powerful racial and gendered discrimination.
Through vivid examples like how post-famine Irish immigrants were enlisted to work as servants in exchange for relief, this book examines how race, citizenship, and the performance of domestic labor relate to visions of American expansion. Because household service was undesirable work stigmatized as unfree, brokers were integral to steering and compelling women, men, and children into this labor. By the end of the nineteenth century, the federal government became a major broker of domestic labor through border controls, and immigration officials became important actors in dictating which workers were available for domestic labor and under what conditions they could be contracted.
Drawing on a range of sources – from political cartoons to immigrant case files to novels – Brokering Servitude connects Asian immigration, European immigration, and internal, black migration. The book ultimately demonstrates the ways in which employers pitted these groups against each other in competition for not only servant positions, but also certain forms of social inclusion, offering important insights into an oft-overlooked area of American history.
Immigration Article of the Day: Biological Citizenship and the Children of Same-Sex Marriage by Michael J. Higdon
In 2015, the Supreme Court ruled that states could not, consistent with the Due Process Clause, deny same-sex couples the right to marry. To allow otherwise, said the Court, would “harm and humiliate the children of same sex marriage.” Thus, it was hoped that marriage equality would provide greater security for the children of same-sex couples. And the need for such protections are increasingly important given that, with advances in assisted reproduction techniques, it is easier than ever for same-sex couples to become parents. Indeed, when it comes to procreation, same-sex marriages and opposite-sex marriages are becoming much more alike. But there remains an obvious difference between the two. Namely, same-sex couples are unable to procreate without the assistance of a third-party, meaning that although both parents in a same-sex marriage may qualify as legal parents, only one (at most) will qualify as a biological parent. But from a constitutional perspective, should that distinction matter?
The Supreme Court, in both Obergefell and its recent decision in Pavan v. Smith has indicated that, when it comes to the governmental benefits associated with marriage, the answer is “no.” Nonetheless, within the realm of immigration law, the State Department is using the absence of biological ties against the children of same-sex marriage, and on that basis, denying them United States citizenship. Although nothing in the Immigration and Naturalization Act requires that citizens, in order to transmit citizenship, possess a biological relationship with their children born abroad, the State Department has begun denying citizenship petitions on behalf of children from same-sex couples simply because the citizen parent, despite being the child’s legal parent, is not the biological parent. This Article argues that the State Department’s approach is not only unreasonable and, thus, not entitled to Chevron deference, but more importantly, is an unconstitutional infringement of both the right to marry and the right to parent, as those rights have developed by the Supreme Court. In sum, the State Department’s practice provides a poignant example of both the ongoing discrimination and the challenging questions that remain, post-Obergefell, in the quest for true marriage equality.
Earlier this week, the American Immigration Lawyers Association (AILA) released a new report detailing how the Trump administration has systematically increased enforcement, using harsh, indiscriminate methods to deport thousands of families, asylum seekers, and people who have lived and worked for years in the United States.
Detailed in the report are policies including:
- The elimination of two existing forms of protection from deportation, Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS), that combined protected nearly a million people.
- The expansion of indiscriminate enforcement, targeting those who the agencies can easily identify and deport, even those who have been complying and checking in exactly as required by the agencies or those who were scooped up as "collateral arrests" during other investigations.
- The escalation of aggressive enforcement tactics by, among other things, ramping up actions in sensitive locations, threatening the sponsors of unaccompanied minors who are trying to help their young family members while they seek asylum protections, and the targeting of victims or witnesses to crimes who are trying to help police.
- The blanket prosecution of cases in immigration courts rather than the efficient use of administrative closure and prosecutorial discretion, both longstanding elements of U.S. law.
- The enactment of policies that threaten the independence and integrity of immigration courts, including establishing case completion quotas to force immigration judges to act as though they are on an assembly line rather than making vital decisions based on complex areas of law, as well as pressuring immigration judges to no longer grant continuances, even in circumstances where additional evidence may prove key to a case decision.
Earlier this week, the California Senate Rules Committee on Wednesday appointed the first undocumented resident to a statewide post, according to Senate President pro Tem Kevin de León's office.
Lizbeth Mateo, a 33-year-old attorney and immigrant rights activist, will serve on the California Student Opportunity and Access Program Project Grant Advisory Committee. The committee advises the California Student Aid Commission on efforts to increase college access for California students from low-income or underserved communities.
Mateo graduated from Santa Clara University law School in 2016 and passed the California bar last year. She was born in Oaxaca, Mexico and came to the United States with her parents when she was 14. According to her LinkedIn page, Mateo is an "Attorney at law helping individuals navigate the legal system when they get hurt on the job, suffer an accident, or are trying to navigate the complexities of immigration law."
Thursday, March 15, 2018
From the Bookshelves: Undocumented: Immigration and the Militarization of the United States-Mexico Border by John Moore
John Moore has focused on the issue of undocumented immigration to the United States for a decade. His access to immigrants during their journey, and to U.S. federal agents tasked with deterring them, sets his pictures apart. Moore has photographed the entire length of the U.S. southern border, and traveled extensively throughout Central America and Mexico, as well as to many immigrant communities in the United States. His work includes rare imagery of ICE raids, mass deportations, and the resulting widespread fear in the immigrant community. For its broad scope and rigorous journalism, Undocumented: Immigration and the Militarization of the United States-Mexico Border is the essential record on the prevailing U.S. domestic topic of immigration and border security.
Here is one of Moore's photos.
Click here for more on Moore's book.