Tuesday, May 3, 2016
Abstract: Courts and scholars have long noted the constitutional exceptionalism of the federal immigration power, decried the injustice it produces, and appealed for greater constitutional protection for noncitizens. This Article builds on this robust literature while focusing on a particularly critical conceptual and doctrinal obstacle to legal reform — the notion that laws governing the rights of noncitizens to enter and remain within the United States comprise a distinct body of “immigration laws” presumed to be part and parcel of foreign affairs and national security. This Article argues that the U.S. Supreme Court’s recent immigration jurisprudence suggests a willingness to temper, and perhaps even retire, that presumption. In particular, the majority opinions in Zadvydas v. Davis and Padilla v. Kentucky evidence a growing skepticism among the Justices that the regulation of noncitizens comprises a discrete, constitutionally privileged domain of distinctly “political” subject matter that is properly buffered against judicial scrutiny. To rescind that presumption would, in effect, disaggregate the category of “immigration law” for the purpose of constitutional review and subject federal authority over noncitizens to the same judicially enforceable constitutional constraints that apply to most other federal lawmaking. The disaggregation of immigration law would thus give full expression to noncitizens’ constitutional personhood. Foreign policy and national security considerations would continue to serve as constitutionally viable warrants for laws burdening noncitizens, but Congress and the President would no longer enjoy the extraordinary judicial deference that they currently receive as a matter of course.
Leiter Law Reports complied a list of lateral move among tenure track law professors. One of those listed is Fatma Marouf, an immigration law and clinical professor, who is moving from the University of Nevada, Las Vegas to Texas A & M. Professor Marouf's extensive publication list includes:
A Particularly Serious Exception to the Categorical Approach, __ B.U. L. Rev. __ (forthcoming 2017).
Community-Based Alternatives to Immigration Detention, __ Cardozo L. Rev. __ (forthcoming 2016).
The Alienage Classifications and the Denial of Health Care to DREAMers, 93 Wash. U. L. Rev. __ (forthcoming 2016).
Human Rights Law and Bioethics as Complementary Frameworks: Setting a Floor for the Standard of Care in Clinical Trials, 17 Health & Hum. Rts. 31 (2015) (co-authored).
The Unconstitutional Use of Restraints in Removal Proceedings, 64 Baylor L. Rev. 214 (2015).
Incompetent but Deportable: The Case for a Right to Mental Competence in Removal Proceedings, 65 Hastings L.J. 929 (2014).
Justice on the Fly: The Danger of Errant Deportations, 75 Ohio St. L.J. 337 (2014) (co-authored).
Buying Time? False Assumptions About Abusive Appeals, 63 Cath. U. L. Rev. 679 (2014) (co-authored).
The Role of Foreign Authorities in U.S. Asylum Adjudication, 45 N.Y.U. J. Int'l L. & Pol. 391 (2013).
Regrouping America: Immigration Policies and the Reduction of Prejudice, 15 Harv. Lat. L. Rev. 129 (2012).
Implicit Bias and Immigration Courts, 45 New England L. Rev. 417 (2011).
The Rising Bar for Persecution in Asylum Cases Involving Sexual and Reproductive Harm, 22 Colum. J. Gender & L. 81 (2011).
UNHCR, the UN Refugee Agency, yesterday announced the appointment of Academy Award winning actor Cate Blanchett as a global Goodwill Ambassador. The announcement comes as Blanchett returns from a mission to Jordan to witness the ongoing humanitarian operation for people displaced by the conflict in Syria. She met Syrian refugee families to hear first-hand about the perilous journeys they had undertaken and the daily challenges they face.
The actor takes on the role at a time when war, conflict and persecution have forced around 60 million people worldwide to run for their lives, the largest number since World War II. Nearly 20 million of these are refugees and more than half are children. The conflict in Syria is the main driver of this global crisis, forcing more than 4.8 million Syrians to become refugees in its neighboring countries alone, with more seeking safety further afield.
Prior to her appointment, Blanchett had been working closely with UNHCR for over a year to raise awareness about the forcibly displaced. In 2015, she travelled to Lebanon to meet Syrian refugees and to hear about the experiences of stateless people as part of her support for UNHCR's #IBelong Campaign.
Australian Immigrant Detention under Scrutiny as Young Somali woman sets herself alight in Australian detention
The Australian government's detention of asylum-seekers is coming under scrutiny after tragedy struck.
CNN reports that a 21-year-old Somali asylum seeker has set herself on fire at an Australian offshore processing center on the pacific island of Nauru, less than a week after refugee advocates say she was forcibly sent back there. The woman, named by refugee advocates as Hodan Yasin, is currently in a critical condition.
On Sunday, another refugee, named as Omid, died in an Australian hospital after setting himself alight on Nauru two days earlier.
Critics say the self-immolations reflect the desperation of refugees living under Australia's controversial immigration policy. Asylum seekers who arrive on Australian shores by boat are told they will never settle in the country, and are transferred to remote processing centers on the pacific islands on Nauru and Papua New Guinea. Hundreds of people, including children, have lived for months or even years in these detention centers.
Yesterday, the United Nations High Commissioner on Refugees released a statement calling for the immediate movement of refugees on Nauru and Manus Island to humane conditions. Based on numerous visits over the past several years, the UN agency described the current arrangement as "completely untenable." "There is no doubt that the current policy of offshore processing and prolonged detention is immensely harmful," the UNHCR said.
In Arizona v. United States (2012), the Supreme Court refused to strike down on its face Section 2(B) of Arizona's S.B. 1070, which requires local police to inquire about the immigration status of persons who they reasonably suspect are in the United States in violation of the federal immigration laws. As a result, Section 2(B) has been enforced. There long has been concern about the constitutionality of possible stops under the law.
The ACLU of Arizona is demanding immediate changes to Tucson Police Department (TPD) policies after an investigation of TPD traffic stop records found that officers enforcing Section 2(B) of Arizona’s SB 1070 are in many cases prolonging stops in order to investigate individuals’ immigration status. These practices violate strict constitutional limitations on police involvement in immigration enforcement as well as TPD’s own policies. The ACLU of Arizona’s findings are detailed in a letter sent to Tucson Police Chief Chris Magnus on May 2, 2016, and are based on a review of TPD stop records from June 2014 to December 2015, which the ACLU of Arizona obtained through a public records request.
The ACLU of Arizona’s investigation identified clear or potential constitutional problems in more than 75 percent of the stops it reviewed—85 out of the roughly 110 cases that TPD identified in which Border Patrol responded to the scene of a stop. The majority of these incidents were routine traffic stops, many involving minor infractions that led to unlawfully prolonged detention, including transport to Border Patrol custody. More than a dozen records revealed immigration checks producing false positives, or “hits,” resulting in extended detention of U.S. citizens and other lawfully present individuals. In some cases, families with young children were detained roadside in order for the parents to be handed over to Border Patrol agents.
While the Supreme Court recently held, in Rodriguez v. United States, that a traffic stop extended “seven or eight minutes” past the time required to address the basis for the stop violated the Constitution, TPD’s data shows routine stops lasting anywhere from fifteen minutes to three hours before Border Patrol’s arrival. The majority of the stops reviewed by the ACLU lasted between one and two hours.
The ACLU also submitted a letter to the Department of Homeland Security (DHS) demanding an investigation into Border Patrol’s improper involvement in TPD traffic stops. In addition to rights violations, TPD stop records indicate Border Patrol is disregarding DHS enforcement priorities as well as the Obama Administration’s promises to limit federal participation in the enforcement of SB 1070, including involvement in routine traffic stops.
“TPD’s own records confirm what Tucson community members have been saying for years: in many cases officers are going out of their way to transfer people to Border Patrol, regardless of the delay that results or the fact that SB 1070 does not—and cannot—authorize prolonged detention," said James Lyall, a staff attorney with the ACLU of Arizona. "These practices are blatantly unconstitutional and profoundly undermine the community’s trust in law enforcement.”
The letter highlights more than twenty case examples, including:
A mother driving her two children to school was stopped and found to have a suspended license, for which she could have been cited and released. Instead, TPD detained her until Border Patrol arrived to take custody, over an hour after the officer’s immigration check and one hour and twenty minutes after the stop was initiated.
Two individuals stopped for speeding identified themselves as “DREAMers.” The officer advised them “they were being detained as they had provided no evidence of being in the US legally” even though that is not a crime and gave the officer no authority to detain them. The officer requested Border Patrol respond to the scene. Border Patrol arrived but declined to take either subject into custody and the stop was concluded—one and a half hours after it was initiated.
A driver was stopped and found to have a suspended license. The officer conducted an immigration check, which indicated the driver was undocumented. Border Patrol arrived and determined the driver was a U.S. citizen—one hour after the immigration check was initiated. TPD cited and released the driver four minutes later.
The records obtained by the ACLU of Arizona also indicate that TPD supervisors have provided inaccurate guidance on officers’ legal authority—including stating, incorrectly, that officers waiting for Border Patrol are not “restrained by time”—and that officers have not received specific training on TPD immigration policy since July 2014, when officers took a 12-page online training course.
“There is no excuse for TPD supervisors providing false and contradictory guidance on the strict limits of officers’ immigration authority, or for providing officers with such minimal training on key developments in relevant case law and numerous revisions to TPD immigration policy in recent years," said Victoria Lopez, ACLU of Arizona legal director. "These fundamental oversight failures are a recipe for abuse.”
Prior to implementation of Section 2(B), the ACLU and other civil rights organizations, community leaders, and government officials all warned the law would result in the very civil rights violations now described in TPD stop records. In upholding Section 2(B), the Supreme Court in Arizona v. United States cautioned that “to delay the release of detainees for no reason other than to verify their immigration status” would “raise constitutional concerns.”
The ACLU of Arizona’s letter to TPD includes a detailed list of policy recommendations and calls on TPD Chief Chris Magnus to conduct an immediate review of TPD immigration policy and to “implement all necessary changes to ensure officers are not exceeding the lawful scope of their authority.” The ACLU of Arizona is also calling for limits to and oversight of Border Patrol involvement in routine stops by local police.
Judge Richard Tallman
Law 360 (login required) reports that the U.S. Court of Appeals for the Ninth Circuit yesterday reversed an order enjoining Arizona laws that criminalize identity fraud for securing employment. The court held that the Arizona laws are not preempted on their face by federal immigration law because they don’t only apply to unauthorized immigrants. The appeals court rejected the argument by Puente Arizona that the laws are preempted by the Immigration Reform and Control Act of 1986.
In an opinion by Judge Richard Tallman, joined by Judge Barry Silverman and District Court Judge Robert Lasnik (sitting by designation), the court in Puente Arizona v. Arpaio, the Ninth Circuit lifted an injunction entered by the district court to bar enforcement of the laws through workplace raids by Maricopa County (Arizona) Sheriff Joe Arpaio and other law enforcement agencies.
Monday, May 2, 2016
The Bancroft Library at UC Berkeley has a "Chinese Immigration to the United States, 1884-1944: A Digital Archive." From 1882 to 1943 ,the United States government severely curtailed immigration from China to the United States. This federal policy resulted from concern over the large numbers of Chinese who had come to the United States in response to the need for inexpensive labor. Congress passed several laws restricting their immigration and naturalization. In its efforts to regulate these matters, the Congress also established federal agencies that created documentation related to those activities and its management of those people under the existing legislation. This website provides an overview of that history and offers an online, searchable index to many of the nearly 200,000 “casefiles” held at NARA which cover the era of the Chinese Exclusion Act (1880-1943).
CNN reports that, continuing a trend over the last several years, Puerto Ricans are leaving the island for the mainland United States at a historic rate. The commonwealth's Institute of Statistics revealed Sunday the results of its analysis on 2014 migration, which found that Puerto Rico lost almost 2% of its population that year. About 84,000 people moved from Puerto Rico to the United States in 2014 while only 20,000 moved back to the island, resulting in a net migration of 1.8%. On average, 230 people left per day -- enough to fill two daily flights out of the island. The result is the highest net migration recorded in the past decade, the Institute said.
"The economic factor is the main factor pushing people towards leaving Puerto Rico," demographer Raul Figueroa, who works as an independent consultant, told CNN. Unemployment, the lack of opportunities, especially for the youth, and quality of life are major factors, he said.
Puerto Rico, now 10 years into a recession, is deep in debt and often compared to Greece and Detroit. More Puerto Ricans now live in the mainland United States than on the island itself. In the 1950s, most Puerto Ricans moved to New York, but Florida has been the main destination in the last 10 years.
Puerto Rico is a U.S. territory. Puerto Ricans are U.S. citizens and thus are migrants to the mainland, not immigrants.
Refugees from the violence of wars and the brutality of famished lives have knocked on other people's doors since the beginning of time. For the people behind the doors, these uninvited guests were always strangers, and strangers tend to generate fear and anxiety precisely because they are unknown. Today we find ourselves confronted with an extreme form of this historical dynamic, as our TV screens and newspapers are filled with accounts of a 'migration crisis', ostensibly overwhelming Europe and portending the collapse of our way of life. This anxious debate has given rise to a veritable 'moral panic' - a feeling of fear spreading among a large number of people that some evil threatens the well-being of society.
In this short book Zygmunt Bauman analyses the origins, contours and impact of this moral panic - he dissects, in short, the present-day migration panic. He shows how politicians have exploited fears and anxieties that have become widespread, especially among those who have already lost so much - the disinherited and the poor. But he argues that the policy of mutual separation, of building walls rather than bridges, is misguided. It may bring some short-term reassurance but it is doomed to fail in the long run. We are faced with a crisis of humanity, and the only exit from this crisis is to recognize our growing interdependence as a species and to find new ways to live together in solidarity and cooperation, amidst strangers who may hold opinions and preferences different from our own.
Bauman discusses the book and the refugee crisis in the New York Times.
The Los Angeles Times reports that thousands of people took to the streets in the annual May Day marches in downtown Los Angeles and Boyle Height to advocate for immigration reform, police accountability and an end to racism. The diverse array of protesters shared one thing in common: all were offended by something Donald Trump had said. The Republican presidential candidate literally loomed over one of the rallies in the form of a giant balloon effigy carrying a Ku Klux Klan hood.
Sunday, May 1, 2016
Not surprisingly, the Republican presidential campaign, and its tough talk for immigrants, is not feeling right to Latinos. NPR takes a look at that development in this story. There are reports that concern with the immigration positions of Donald Trump and other sis encouraging immigrants to naturalize.
Saturday, April 30, 2016
In TIME, Opal Tometi, Executive Director of Black Alliance for Just Immigration and a Co-founder of Black Lives Matter, writes that "We must repeal the 1996 immigration laws." Despite the attention that news outlets and presidential candidates are giving the issue, the most devastating policies immigrants face—the 1996 immigration laws—are barely on the radar. As a result of these laws, millions of immigrants have been victims of fast-track deportations and unjust, arbitrary detention; families and communities have been torn apart; and entire generations of immigrants have been criminalized.
April marks the 20th anniversary of these draconian policies. The best thing we can do to mark this anniversary is to repeal them.In the aftermath of the 1995 Oklahoma City bombing, President Bill Clinton signed the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996. This legislation expanded the grounds for detaining and deporting immigrants, including long-term legal residents, and was the first law to authorize the now widely used fast-track deportation procedures.
Following AEDPA, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) was signed into law in September 1996. The law made sweeping changes to allow for deportations to be retroactive and broadened the types of crimes that could result in deportation. As a result, many immigrants, including those with legal residency, became deportable for non-violent offenses, including relatively minor ones, such as marijuana possession, jumping a subway turnstile or selling bootlegged DVDs. Many of these offenses are not even classified as crimes on the state level.
Immigration Article of the Day: Solution to Hoffman's Choice for Unauthorized Workers: Creating New Incentives to Report Unlawful Workplace Discrimination by Andrew J. Glasnovich
Solution to Hoffman's Choice for Unauthorized Workers: Creating New Incentives to Report Unlawful Workplace Discrimination by Andrew J. Glasnovich, University of Minnesota - Twin Cities, School of Law, Students April 14, 2016 34 Law and Inequality: A Journal of Theory and Practice, Online (2016)
Abstract: This Article will identify how federal law protects unauthorized workers from class-based discrimination and will define the proper scope of relief for violations of these laws. First, this Article examines a conflict in federal law that creates an incongruence between the purported right to a workplace free of discrimination and the corresponding claims for relief available to unauthorized workers. Next, this Article proffers a new analytical framework, based on state law examples, to resolve this legal quagmire, arguing that current jurisprudence does not apply to anti-discrimination statutes. Finally, this Article proposes that Congress amend Title VII of the Civil Rights Act of 1964 (Title VII) to correct the U.S. Supreme Court’s misapplication of immigration law, which stripped unauthorized workers of the basic protections of dignity and workplace security.
Friday, April 29, 2016
This 1887 image from Frank Leslie’s Illustrated Newspaper shows immigrants on the deck of the steamer Germanic. (Library of Congress)
The symposium opens with a reception and keynote address at 6 pm on Thursday, May 5 in room B338 of the Rayburn House Office Building. It continues on Friday, May 6 in room 325 of the Russell Senate Office Building.
Thursday, May 5 at 6 pm, room B338, Rayburn House Office Building
Speaker: Paul Finkelman, Symposium Director,
Ariel F. Sallows Visiting Professor of Human Rights Law, College of Law, University of Saskatchewan, Senior Fellow, Democracy, Citizenship and Constitutionalism Program, University of Pennsylvania
Featured Speakers include Gabriel “Jack” Chin (University of California, Davis School of Law),
Mariela Olivares (Howard University School of Law), and Kunal Parker (University of Miami School of Law). Symposium speakers will tackle a range of topics that examine Congress and immigration law through various lenses, including race, quotas, politics, and popular culture. As speakers consider immigration law and related issues, they will detail and challenge popular perceptions of racial, ethnic, and political differences in American society from 1789 and the Alien Acts through the Simpson-Mazzoli Act in 1986.
This event is free and open to the public. Pre-registration is requested, by clicking here or by calling (202) 543-8919 x38 and leaving a detailed message. See below for the program. Can’t make it to the program? We’ll be live-tweeting as much as we can from @USCapHis #immigrationhistory.
Abstract: In Immigration Outside the Law, Hiroshi Motomura offers a triumphant account of undocumented immigrants as “Americans in waiting,” with moral and legal claims to societal integration. Central to Motomura’s project, and my focus in this Review, are the hydraulics of immigration authority when the congressional spigot is closed. With Congress gridlocked, the executive branch and subfederal jurisdictions have rushed to the void. These political developments, in turn, have spawned a mix of constitutional questions about how separation of powers, federalism, and individual rights apply, or should apply, to the field of immigration. Motomura blends elements of constitutional structure and rights into a mold that I call “Black-Box Immigration Federalism.”
Outwardly, Black-Box Immigration Federalism reduces to the seemingly simple formula that “federal law” preempts state and local law. The formula looks about right and many commentators seem to accept it on faith. Yet beneath the formula’s tidy veneer is a cache of legal uncertainties, complexities, and potential contractions. More specifically, Black-Box Immigration Federalism treats the federal government as an undifferentiated whole, and from that starting position embeds some or all of the following propositions. First, the federal government can freely choose to make law by statute, regulation, or otherwise. Second, nonbinding federal policies qualify as law. Third, immigration “law in action” takes presumptive precedence over Congress’s laws on the books. Fourth, executive enforcement policies, which are not binding as against the federal government, are nevertheless binding on state and local jurisdictions. Fifth, restrictionist state and local immigration policies are presumptively preempted through incorporation of an “equality norm” into Supremacy Clause challenges.
Black-Box Immigration Federalism is a serious idea with serious intellectual backing. Indeed, the Supreme Court’s decision in Arizona v. United States hints at something like it, albeit with mixed signals. This Review’s three-fold aim is to bridge some gaps between immigration and constitutional theory, provide alternative views to Motomura’s in these regards, and explain why Black-Box Immigration Federalism should not be taken for granted — perhaps especially by immigrant advocates. If nothing else, caution is warranted before placing faith in structural arrangements that simultaneously consolidate federal power and relax checks against it, which is precisely what Black-Box Immigration Federalism portends to do.
Immigrant Doctor's Role in Bringing the Health Dangers of NFL Football to Light in Film "Concussion"
Last fall, the film Concussion opened in theaters across the United States. In the event you missed it, you might catch it on cable, Netflix, or otherwise. An immigrant is at the centerpiece of the story of the film. This NPR radio story explains.
The film put the spotlight back on the dangers of football. Will Smith portrays Dr. Bennet Omalu, the immigrant from Nigeria who was the first to publish research on the degenerative brain disease he called chronic traumatic encephalopathy, or CTE. Omalu, a forensic pathologist, noticed something strange in 2002 when performing an autopsy of Mike Webster, a famous former player for the Pittsburgh Steelers. In the years following his retirement, Webster suffered from mental and financial problems. He died at age 50 of a heart attack, Omalu said.
Dr. Omalu came to Seattle, Washington in 1994 to complete an epidemiology fellowship at the University of Washington. In 1995, he joined Columbia University’s Harlem Hospital Center for a residency training program. He next trained as a forensic pathologist at the Allegheny County Coroner’s Office in Pittsburgh. Omalu holds eight advanced degrees and board certifications, including a Masters in Public Health (MPH) & Epidemiology in 2004 from the University of Pittsburgh Graduate School of Public Health, and a Masters in Business Administration (MBA) from at Carnegie Mellon University in 2008. Omalu is currently chief medical examiner of San Joaquin County, California and is a professor in the UC Davis Department of Medical Pathology and Laboratory Medicine.
Caitlin Dickerson of NPR offers insights into the goings-on of immigration court. Thousands of immigrants go through the Lumpkin, Ga., immigration court yearly. More than 97 percent of them lose and are deported. NPR follows the case of one man whose lawyer thinks he has a shot at winning.
The case involves Shawn, who came to the U.S. legally from Guyana in South America when he was 10. He grew up in New York City, married his high school sweetheart. He has three kids, and in 2005, they moved the family to a suburb of Atlanta. Shawn was arrested at home in 2011. He had four ounces of marijuana, two digital scales and plastic baggies. Shawn says he smoked weed but he didn't sell it, but he was convicted of possession with intent to distribute marijuana. He went to jail for a year and a half, and that conviction makes him a priority for deportation.
Shawn ultimately lost in immigration court and lost an appeal. He faces removal from the UNited States to a country he has not lived in for many years.
The disastrous, forgotten 1996 law that created today's immigration problem: The immigration reform Hillary Clinton wants could be limited — or even undermined — by a law her husband signed.
Dara Lind on VOX reminds us of the long-tern impacts of the Illegal Immigration Reform and Immigrant Responsibility Act, signed into law by President Bill Clinton, and how far Democrats have come on the issue in twenty years. As Lind describes it,"the '96 law essentially invented immigration enforcement as we know it today — where deportation is a constant and plausible threat to millions of immigrants."