Tuesday, December 1, 2015
Using data from the U.S. Census Bureau (the most recent 2014 American Community Survey [ACS] and pooled 2009-13 ACS data), the Department of Homeland Security’s 2013 Yearbook of Immigration Statistics, and the World Bank's annual remittance data, this Migration Policy Institute Spotlight provides information on the European immigrant population in the United States, focusing on its size, geographic distribution, and socioeconomic characteristics.
Top Concentrations by Metropolitan Area for the Foreign Born from Europe, 2009-13
New York City Bar Opposes Congressional Proposals to Halt or Delay U.S. Resettlement of Iraqi and Syrian Refugees
The New York City Bar Association has sent a letter to U.S. Senators Mitch McConnell and Harry Reid, the Senate’s Majority Leader and Minority Leader respectively, opposing recent congressional proposals to halt or delay U.S. resettlement of refugees from Iraq or Syria.
The letter, signed by City Bar President Debra L. Raskin, states:
By effectively shutting down the process of screening and admitting refugees from these countries, bills such as the American Security Against Foreign Enemies Act (H.R. 4038), which was recently passed in the House of Representatives, would deny lifesaving humanitarian protection to families fleeing horrific violence in Syria and Iraq. Moreover, these proposals would cause the United States to abandon its commitment to non-discrimination principles and its longstanding role as a leader in international refugee protection, encouraging countries around the world to follow suit. By denying protection to those fleeing persecution by terrorist and violent extremist groups and by the forces of Syrian President Bashar al-Assad, these proposals would tarnish the image of the United States throughout the world and harm national security. We urge Congress to reject these proposals, and instead to support an increase in refugee admissions.
The letter can be read here.
Immigration Article of the Day: Immigration's Enigma Principle: Protection and Paradox by David A. Martin
Immigration's Enigma Principle: Protection and Paradox by David A. Martin, University of Virginia School of Law November 1, 2015 Virginia Public Law and Legal Theory Research Paper No. 63
Abstract: This paper, the keynote address at a conference hosted by the Center for Migration Studies in late October 2015, reflects on lessons from the current European refugee drama and more broadly on the realistic but paradoxical constraints that inherently apply to the use of protection mechanisms. It begins by drawing a set of lessons about structural protection limits from the movie The Imitation Game, which depicted dilemmas faced by the team that cracked the codes used in the Nazis’ Enigma Machine. It then ties those lessons to remarks by David Miliband, former Foreign Secretary of the United Kingdom and now head of the International Rescue Committee, emphasizing the need for both compassion and competence in responding to refugee crises. Using that framework, it analyzes modern Germany’s August policy announcing acceptance of Syrian refugees on strikingly generous terms. Chancellor Merkel genuinely deserves high marks for compassion, but much more should have been done to think through likely consequences and to provide competently for the flow. Europe’s rather automatic and unreflective choice to address the crisis largely within the classic continental model of spontaneous asylum seeking has meant that applicants must make their own way to the destination country, often on foot – a method that imperils asylum-seekers, alienates transit countries, and fuels anti-immigrant backlash. A different model, orderly departure as part of a facilitated resettlement regime, coupled with a reversal of deep budget shortfalls for sustenance and shelter in the region of origin, deserved attention as an alternative – and may well ultimately become the framework for a more realistic Syrian refugee program. The migration system will eventually find a new equilibrium, but the current strains, including unrealistically ambitious legal doctrine, may produce long-term setbacks for refugee protection and European unity.
Monday, November 30, 2015
Immigration Article of the Day: Carrie Rosenbaum, What (and Whom) State Marijuana Reformers Forgot: Crimmigration Law and Noncitizens
What (and Whom) State Marijuana Reformers Forgot: Crimmigration Law and Noncitizens, 23 Mich. St. Int’l L. Rev. (forthcoming Feb. 2016).
This paper asserts that state and local marijuana reforms that relax criminal penalties should, but will likely not, benefit Latino/a noncitizens. Because of the intricate relationship between criminal and immigration enforcement, state and local police engagement in racial profiling will not only fail to be eliminated by state-level marijuana reforms, but may be exacerbated. As a result, in spite of marijuana law reforms intended to lessen overly punitive penalties stemming from minor marijuana conduct, noncitizen Latino/as will continue to be disproportionately criminally policed and deported.
Scholarly literature addressing the intersection of criminal and immigration law has considered ways in which racial profiling in criminal law enforcement infects the immigration removal process. However, the literature has yet to explore the way in which sub-federal drug law reforms, and specifically, recent marijuana law reforms, will fall short for noncitizen Latino/as because of the way in which racial profiling in criminal law enforcement infects the immigration removal process.
After decades of excessive, punitive, and ineffective policies, particularly in the area of drug law enforcement, states have initiated reforms, including marijuana decriminalization. At the same time that decriminalization measures are being implemented, in the field of immigration law, resources for apprehension, detention and deportation have skyrocketed, with a focus on “criminal aliens.” The criminal-immigration removal system has resulted in local and state law enforcement agents playing a critical, and problematic role in the detection, apprehension, and removal of “criminal aliens.”
The plight of noncitizens deported or found inadmissible based on marijuana-related conduct highlights a deeper, systemic problem. Not only do extremely harsh immigration consequences serve as a double-penalty for potentially minor marijuana offenses, particularly in light of criminal law reforms, but enforcement of remaining marijuana laws will likely fall disproportionately on Latina/o noncitizens. Over ninety percent of deportations arising out of criminal law enforcement are to Central American and Mexico, yet Mexican and Central American immigrants make up less than half of the United States immigrant population.
While decriminalization of marijuana may be more than a symbolic move away from the failed “tough on crime” policies of the past, it not only fails to take into consideration the impact of marijuana laws on noncitizens but also may exacerbate the racially biased aspects of drug law enforcement on noncitizens, particularly Latinos. This Article discusses the ways in which criminal-immigration law enforcement has impacted noncitizens, primarily Latino/as, to demonstrate why sub-federal marijuana reforms will fail to alleviate racially disparate outcomes, perpetually leaving Latino/a noncitizens in the shadows.
Issue: (1) Whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; and (2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident.
Over the last couple of weeks, the ImmigrationProf blog has been posting contributions comprising an on-line symposium on the U.S. Court of Appeals decision in Texas v. United States. Here is a compilation of the contributions to date. The latest installment is below.
Blog post by Ming Hsu Chen for ImmprofBlog Symposium on Texas v. United States
One thing to not lose sight of in the excitement over the Texas v. United States appeal to the Supreme Court. Executive action in immigration law will persist, regardless of whether President Obama’s deferred action programs are eventually ruled lawful by the Supreme Court and even if Congress or the next presidential administration acts to roll back the programs. In a full length article on DACA and DAPA, I urge a focus on legitimacy rather than unremitting concern for legality. While challenges to the legality of Obama’s executive actions in immigration law proceed in court, the Article presents evidence that states generally deem federal policy legitimate when they voluntarily enact state policies that incorporate DACA lawful presence designations, even though Texas v. United States paints a portrait of vehement skepticism of DAPA. If experience holds, it will take a lot to overcome states’ willingness to cooperate with the DACA and DAPA executive actions once given the opportunity.
So far we know that the general trend of state support for DACA is enduring. Fifty of fifty states offer driver's licenses to DACA recipients, notwithstanding Texas' contention that driver's licenses impose unwelcome costs on the state. Empirical evidence of the diffusion of state driver's license policies shows that the adoption is neither uniform nor monolithic: despite the seeming consensus, the state policies providing driver’s licenses to DACA recipients vary over a spectrum of attitudes and cooperative behaviors. While some states eagerly embrace DACA’s lawful presence designation, others accept it provisionally and some begrudgingly, only under the threat of legal sanction. But the trend is toward embracing DACA in state policies. Versions of the same incorporationalist trend arise from studies of state higher education policies. A study of health care shows the limits of state acceptance, with only a handful of states finding ways to enact inclusionary policies for DACA recipients under the ACA’s legal constraints. Yet across the policy arenas, in-depth case studies reveal that cooperative policymaking is a dynamic process motivated by a sense of DACA as being legitimate despite contention about legality, morality, and politics.
The Texas challenge to DAPA does not by itself change the analysis suggested by on-the-ground experience. Texas v. United States amplifies the complicated relationship between legitimacy and legality. It does so by raising a critical test case involving more legal contestation and stronger policy objection, where legality abuts legitimacy. States are tasked with sorting out their perceptions of the continuing legitimacy of the program in the face of legal contestation. Similarly, the policy design decisions surrounding DAPA’s more expansive contemplated alternative (deferred action for parents of DACA recipients, beyond parents of U.S. citizens and LPRs) illustrates that policy, politics, and legitimacy are also related. Still, the paramount importance of legitimacy remains for these programs of executive action—especially if they rely on a scheme of cooperative policymaking that involves voluntary state cooperation—unless and until the legal dispute becomes grave enough to overcome the presumption of institutional legitimacy.
Once the dust settles on the legality of the newly-created DAPA program, a few outcomes are possible: (1) DAPA is found legal, and states cooperate with its implementation because it is legitimate; (2) DAPA is found legal, and states choose not to cooperate once it is implemented because it is not legitimate; (3) DAPA is found illegal for curable reasons such as an APA procedural violation, and states cooperate because they believe the program remains legitimate once these defects are cured; or (4) DAPA is found illegal for curable reasons such as an APA procedural violation, and states choose not to cooperate even once the defects are cured. States might also follow the law involuntarily, as did Arizona, following the federal court’s insistence after Arizona DREAM Act Coalition v. Brewer. Of course, if DAPA is found illegal on constitutional grounds or for reasons that provoke grave doubt over its procedural fairness, states will lack the opportunity to cooperate since DAPA will not go into effect. Based on legitimacy research and this study of state cooperation, my article finds the cooperative outcomes more likely than their non-cooperative counterparts.
Outcomes following DAPA litigation
States Not Cooperative
State Cooperative (if curable)
States Not Cooperative (if curable)
However, state cooperation is not assured even if the DAPA program is found lawful and permitted to be implemented. State decisions will turn on their attitudes toward the legal authorities granting recognition to deferred action recipients and administering the applications. Those seeking to preserve the executive action must build public support for their policy to survive on-the-ground. It might not be necessary to roll back DAPA to preserve DACA in the states (as a matter of voluntary cooperation), but it might be necessary to change the implementation procedures to demonstrate procedural legitimacy even if not legally required to do so. Some ideas to shore up legitimacy after the shake-up of litigation include gathering community input, following APA rulemaking procedures, enforcing the high priority categories for removal, or publicizing discretionary departures from the guidance criteria and other sincere efforts to enforce immigration law. A symbolic but potentially significant move that would parallel Obama’s efforts to build legitimacy for Secure Communities might be to revise the parameters or replace the underlying program under the banner of a new name—for example, by revisiting and clarifying the benefits associated with DAPA. These research-backed proposals reflect that, beyond eliciting legal compliance, the President should set his sights high by cultivating voluntary cooperation with his executive actions. He should do so in the places that trust him least and even if it is not legally required.
The President’s initial reticence about moving forward with executive action and his continuing exhortation for Congress to take the next step by enacting comprehensive legislation that promotes legalization and ameliorates the longstanding undocumented population—even as he consistently asserts the legality of his executive actions in court—reveals his keen understanding of the vulnerability of relying on executive action. Executive action is quick to enact; it is also quick to undo or alter and vulnerable to challenge. For all of these reasons, executive action is a second- or third-best means for crafting immigration law—second to Congress, and third to notice and comment rulemaking. Still, executive action is a viable means of advancing policy and it can be an effective one, provided that it can obtain on-the-ground acceptance of its legitimacy and voluntary cooperation
Sunday, November 29, 2015
In the last few weeks, Ben Carson has taken a hard line on Syrian refugees. He wants no part of them. He's recommended "using our resources and talents to help them get settled, over there," arguing that Syrian refugees shouldn't be allowed into the United States because it would be "too easy to embed within them" jihadists.
A few days later, Carson likened the concern for embedded jihadists within Syrian refugees to "rabid dogs."
This week, Carson is in Jordan, where he's gone to meet with Syrians in refugee camps there. Carson spoke about his travels with Chuck Todd on Meet the Press this morning.
Carson said that he "talked to the people" -- both Jordanians and Syrian refugees -- to find out "what they think." Here's his summary:
The Syrians want to be in Syria. They want to be repatriated in their own country. And they are looking for a mechanism to get there. But in the meantime the facilities that have been offered to them here in Jordan are very satisfactory. And when I asked them what Americans could do they said if Americans could support those facilities to a greater degree because they have much more capacity here in Jordan. And I suspect in some of the other countries as well.
Let's break that down. The Syrians want to be in Syria. Of course they do! That's the nature of being a refugee. They want to be in the Syria that used to exist. The one where they weren't persecuted and threatened. Again, I find myself quoting Warsan Shire: "you only leave home / when home won't let you stay."
So, what about capacity? Mapfight (your classroom app) has the answer:
James W. Huston has this commentary on the rise of nationalism and the immigration crisis in Europe. Last October, 20,000 marchers took to the streets in Dresden, Germany to protest Germany’s plan to admit almost 1 million Muslim refugees from Syria. The march was organized by PEGIDA, the so-called Patriotic Europeans Against the Islamization of the West. The group claims that German and European culture is being “overrun” by immigrants. Another march occurred la later in October. "The anger at their government and the nationalist and anti-Islamic sentiments reflected in the protests are deep and growing in Germany and elsewhere and are spilling over into overt and renewed neo-Nazism. And now Paris. Two weeks after emigrating from Syria, one refugee participated in the bloody attacks on defenseless Parisians."
One passage of Huston's commentary is especially interesting:
"People often look back to the 1920s and 1930s and wonder how Adolph Hitler was able to convince Germany to follow him down the path of hatred, anti-Semitism, and anti-immigrant fever. But rarely do people read what Hitler said in “Mein Kampf.” He was as clear as it is possible to be. His number one target was immigrants. He blamed immigrants for everything bad that was happening in Germany, from the shambolic economy to the struggle for the political future of the country. Hitler’s “immigrant” targets were the Jews and Bolsheviks. The invaders. The non-Germans, Jews and Slavs. In Volume II, Chapter III of “Mein Kampf,” Hitler tears into Germany for exercising its “magic” whereby it turns a Mongolian slave into a “real German.” A Zulu or “Kaffir” can become a “citizen.”
Many governments, like Germany in the 1930s, are perceived as being more interested in allowing in all comers with no consideration for safety, let alone the deep-seated culture and the beliefs of the average members of the society. Germans felt abandoned by the state in Hitler’s time, and feared for their country. Many were silent, until Hitler expressed what they were thinking. He didn’t create the fear, the hatred and desire to stop the immigrant flood, he rode it.
The same fear is building today in Germany and elsewhere. The feared immigrants of today aren’t Jews and Bolsheviks, they’re Muslims."
Saturday, November 28, 2015
Over the last couple of weeks, the ImmigrationProf blog has been posting contributions comprising an on-line symposium on the U.S. Court of Appeals decision in Texas v. United States. Here is a compilation of the contributions to date. We hope to be receiving more in the coming weeks.
Shoba Sivaprasad Wadhia: Seeking to Understand the Fifth Circuit Ruling on Deferred Action
Selected News about Texas v. United States
Andrew Jacobs of the New York Times reports on a high-profile visa denial. Contestants from around the world descended on China this week for the 65th annual Miss World contest. One contestant was absent from the opening ceremony: Miss Canada, Anastasia Lin, a 25-year-old actress and classically trained pianist. Lin was denied a Chinese visa to attend the pageant. It is suspected that the visa was denied because of Lin's outspoken advocacy for human rights and religious freedom in China.
Reuter's reports that Europe's refugee crisis has resurrected Germany's AfD anti-immigrant party, which aims to enter three new state parliaments next year by luring conservative voters angry with Chancellor Angela Merkel's asylum policy. The Alternative for Germany party holds its annual congress this weekend in Hanover, where it will outline its plan to bring order to what it calls the "asylum chaos." After imploding over a bitter leadership struggle in July, the AfD placed third nationally, at 10.5 percent, for the first time this month in a survey.
For millions of immigrants entering the United States in the early twentieth century, Ellis Island was the gateway to a new life. Upon arrival, some travelers were approved, but many, due to illness or simply fatigue, were denied access and hospitalized. Ellis, a fourteen-minute film directed by JR and written by Academy Award winner Eric Roth, tells the elusive story of countless immigrants whose pursuit of a new life led them to the now-shuttered Ellis Island Immigrant Hospital.
Following its opening in 1902, approximately 1.2 million people passed through the facility, where the Statue of Liberty can be seen from the windows. Languishing in a sort of purgatory awaiting their fate, many were never discharged.
Academy Award winner Robert De Niro stars as an immigrant whose pursuit of a new life expired at Ellis Island. Shot on location, the film shows De Niro deliberately traversing the abandoned hospital complex. He is accompanied by fellow ghosts of Ellis Island, which exist in the form of portraits pasted to the walls, windows and doors of the facility in JR’s signature black-and-white style.
For more on the film, click here.
Friday, November 27, 2015
In this commentary, Nicholas Kristof introduces us to a Syrian refugee, "Heba, a frightened, desperate 20-year-old woman who dreams of being an artist and has just made a perilous escape from territory controlled by the Islamic State in northern Syria."
Bernie Sanders has outlined "A Fair and Humane Immigration Policy," which is getting positive attention from, among others, the New York Times and the Washington Post. The broad principles of the plan are as follows:
Through legislation and executive action, Senator Sanders will implement a humane and secure immigration policy that will:
- Dismantle inhumane deportation programs and detention centers;
- Pave the way for a swift and fair legislative roadmap to citizenship for the eleven million undocumented immigrants;
- Ensure our border remains secure while respecting local communities;
- Regulate the future flow of immigrants by modernizing the visa system and rewriting bad trade agreements;
- Enhance access to justice and reverse the criminalization of immigrants;
- Establish parameters for independent oversight of key U.S. Department of Homeland Security (DHS) agencies.
The plan provides further detail on each of these areas and strikes a very different tone on immigration than the Republican presidential candidates. The Latin Times calls Sanders' immigration proposal more progressive and detailed than Hillary Clinton's.
Some of the details of Sander's immigration plan jumped out at me as worthy of careful consideration. He proposes, for example, to expand DACA and DAPA and end immigrant detention by for-profit private entities. Here are a few proposals that jumped out at me as worth discussion and something of interest to immigration law professors:
Protect Immigrant Workers Exercising their Rights. Legislatively, a Sanders Administration would establish a whistleblower visa for workers reporting labor violations. Administratively, Senator Sanders would establish an affirmative process for these individuals to request deferred action. Many employers regularly abuse immigrant workers knowing employees will not hold them accountable for fear of deportation.
Decouple Local Law Enforcement from Immigration Enforcement. In too many instances, deportation programs like the Priority Enforcement Program (PEP), the 287(g) program, and the Criminal Alien Program have unjustly turned local law enforcement officials into immigration officers. Racial profiling and the criminalization of communities of color form the foundation of these deportation programs which will be eliminated under a Sanders Administration. As President, Senator Sanders will implement the recommendations of President Obama’s Task Force on 21st Century Policing to “decouple federal immigration enforcement from routine local policing.”
Promote Cooperation Between Immigrants and Local Law Enforcement. Senator Sanders wholeheartedly rejects the “The Great Sanctuary City Slander” as the politics of fear, and supports enacting community trust policies. These policies will strengthen relationships between community members and local law enforcement, respect the constitutional rights of immigrants, and reflect the will of a locally elected electorate.
Expand Access to Counsel for Immigrants. Based on the constitutionally enshrined principle of habeas corpus, a Sanders Administration will increase access to legal counsel for detained immigrants. This expansion is critical in light of instances where ICE coerced large numbers of immigrants to sign their own deportation order. A Sanders Administration will vigorously implement the protection against coerced or “unwitting deportation” established as part of Padilla v Kentucky (2010).
Properly Fund Our Nation’s Immigration Courts. To ensure that our immigration system respects constitutional protections, as President Senator Sanders will work with Congress to provide additional funding and immigration judges to the Executive Office for Immigration Review and restore discretion to judges and allow them to consider the unique circumstances of an individual’s case.
Close Loopholes that Allow Racial Profiling by Federal Authorities. Senator Sanders will fight to end racial profiling. Immigrants should never face deportation as a result of racial or ethnic profiling. A Sanders Administration will work to revise the U.S. Department of Justice’s Guidance Regarding the Use of Race by Federal Law Enforcement Agencies. Under the current guidance, the Department of Justice carved out significant exceptions for federal law enforcement agencies like the FBI, TSA and Customs and Border Protection (CBP) to profile racial, religious, and other minorities at or in the vicinity of the border. Furthermore, the Guidance does not apply to most state and local law enforcement agencies.
End Family Detention. As President, Senator Sanders will end family detention. He will work to ensure that detention centers do not hold families and adhere to the letter and spirit of the Flores Order. The detention of families, most of which come to our country seeking protection under our laws, is an affront to the values our nation was founded upon.
Reduce Border Deaths. Senator Sanders will work to reduce the unacceptable and inhumane number of deaths on the border. One practice that has no place in a humane immigration system is the use of remote deportations. Dumping someone in an unfamiliar location can be lethal as the State Department has recognized that parts of Mexico are run by “organized criminal groups.”
End Operation Streamline and Barriers to Asylum. Senator Sanders would end Operation Streamline and remove the barriers established in 1996 that prevent those removed under Expedited Removal from applying for asylum.
Turn Back the Militarization of the Southern Border. The militarization of the border has reached new heights. Senator Sanders will work to ensure that we have a modern, secure, efficient border, avoiding the militarization of our border communities.
Strengthen and Expand Our Support for Refugees. In light of the Syrian refugee crisis, a Sanders Administration would continue to welcome refugees to the US and meet our international responsibilities. When hundreds of thousands of people have lost everything and have nothing left but the shirts on their backs, we should not turn our backs on refugees escaping violence, whether it be Syrians in the Middle East or young children in Latin America. We need to continue our efforts to provide refugees fleeing violence with the opportunity for a new life, and explore additional ways to address the humanitarian crisis.
End the Economic Exploitation of Immigrant Workers. The visa system must be fundamentally reformed to prevent employers from abusing and exploiting guest workers, especially in the context of H-2B, H1-B, and J-1 workers. Binding workers to a specific employer or not allowing their family members to work creates a situation rife for abuse and exacerbates an already unequal relationship between the employer and the employee. We must substantially increase prevailing wages that employers pay temporary guest workers. To build on Senator Sanders’ previous legislation, Senator Sanders will ensure that if there is a true labor shortage, employers must offer higher, not lower wages.
Protect and Expand the Legal Rights of Immigrant Workers. Regardless of status, immigrant workers should not fear holding employers accountable for exploitation. Senator Sanders will work with Congress to authorize and substantially increase funding for the Legal Services Corporation to provide legal representation to guest workers exploited by employers. Moreover, Senator Sanders will work toward requiring employers to reimburse guest workers for housing, transportation expenses, and workers’ compensation.
Fully Fund and Prioritize Immigrant Integration. Senator Sanders recognizes that integration is a two-way process that benefits newcomers and Americans alike. Helping immigrants become part of our ever-changing national fabric is essential to a true national security policy, one where aspiring Americans deeply believe in the values of our nation. Senator Sanders will call for greater investment in immigrant integration as the returns on modest investments are often substantial, both culturally and economically.
Expand Access to Naturalization. There are approximately nine million lawful permanent residents who are eligible to naturalize and become citizens but do not due to financial obstacles. As such, it is well past time to for Congress to appropriate resources to strengthen the U.S. Citizenship and Immigration Services’ (USCIS) budget and to reduce application fees. High fees for immigration benefits, especially naturalization, act as a deterrent for aspiring Americans to embrace U.S. citizenship and are not in keeping with the American immigrant tradition.
Connect Integration with Educational Programs. Immigrant integration occurs in our schools, our workplaces, and in the community at large. Senator Sanders’ policies to make public colleges and universities tuition free, raise the minimum wage, expand Social Security, and make it easier for workers to form unions will benefit all Americans, regardless of immigration status. In addition, Senator Sanders will foster increased access to English as a Second Language instruction, and early learning programs for children.
On-Line Symposium on Texas v. United States: Jason Cade, On Categorical Nonenforcement Decisions in Immigration Law
Jason Cade, On Categorical Nonenforcement Decisions in Immigration Law
For my contribution to this symposium, I wish to focus on a point of convergence between the Fifth Circuit majority and dissent in Texas v. United States. Both opinions find critical the inquiry whether front-line agency officials retain authority to deny deferred action on a discretionary basis. Judge Smith’s opinion for the majority, like the district court, extrapolated from DACA’s high approval rate to find that DAPA would not “genuinely” leave DHS agents free to exercise discretion. Judge King’s dissent distinguished DAPA from DACA largely on the grounds that DAPA bakes individualized discretionary determinations into the program’s enumerated criteria. Her reasoning implicitly suggests that she would at least have found the President’s authority to implement DACA without rule-making to be a much closer question.
Thus, although DACA was not squarely before the Fifth Circuit, both opinions decision throw that specific program’s continuing validity into significant uncertainty. More generally, the opinions raise questions about the propriety of categorical nonenforcement in immigration law. In this post I set out a tentative defense of categorical nonenforcement decisions like those reflected in the DACA program.
First, I must briefly describe the broader context of the system in which the President’s deferred action programs have arisen. In the late twentieth century, Congress passed a series of wide-reaching amendments to the immigration code, which collectively made vastly increased numbers of noncitizens presumptively deportable and ineligible for back-end discretionary relief from immigration judges based on a balancing of positive and negative factors. At the same time, longstanding acquiescence by both political branches in the unauthorized migration and employment of noncitizens, among other factors, has resulted in a massive unauthorized population in the United States. The breadth and severity of these modern immigration rules, along with the scale of the removable noncitizen population, consolidates tremendous power over the equitable implementation of immigration law in enforcement actors. If considerations of proportionality and fairness are to play a part in deportation, they do so almost entirely through the discretionary decisions of enforcement actors, as I explain in a recent article and forthcoming essay.
The Supreme Court has come a long way towards recognizing the primacy of enforcement-based equity in the modern deportation scheme. In Arizona v. United States, the Court struck down on preemption grounds state immigration laws that might interfere with the Executive’s enforcement priorities, including decisions not to pursue some individuals for equitable reasons. Most recently, during oral argument in this term’s Torres v. Lynch, the justices yet again grappled with a potentially overbroad construction of a criminal ground of removal. At one point Chief Justice John Roberts matter-of-factly asserted that even if the challenged provision is over-inclusive, the executive branch could simply refrain from enforcing the law in situations where it would unjustly sweep in minor offenders. Arguably, this is the system that Congress created (or at least has long acquiesced to), through explicit and de facto delegations of immigration authority to the President.
Against this backdrop, DACA can be conceived as an effort to implement the Department of Homeland Security’s categorical proportionality concerns, as I suggest in my article. Recall the criteria required to receive a favorable grant of deferred action under DACA: long residence in the United States, being brought to the United States at a young age, earning a high school diploma or equivalent, and no criminal record or other indicia of undesirability. The nature of these equitable factors brings the current deportation system’s potential for disproportionality into sharp relief. On the one hand, the underlying offense triggering the sanction of deportation for these noncitizen youth – and a ten-year bar on lawful reentry – is their presence in the United States without authorization, and, in some cases, unlawful entry. On the other hand, their personal mitigating factors point toward lack of (or at least significantly diminished) culpability, full acculturation as Americans, strong community ties, high potential for economic productivity, respect for penal laws, and lack of any indications of dangerousness.
Accordingly, for noncitizen youth falling within this group proportionality concerns loom especially large and discretionary nonenforcement can be defensibly applied in a more generalized fashion. In a system lacking back-end proportionality review, DHS might reasonably determine that deporting DACA-eligible persons (or at least those whose cases lack other indicia suggesting undesirability) is by definition going to be categorically inequitable. Although they do not use the lens of proportionality, Adam Cox and Cristina Rodríguez have persuasively argued the related point that the agency’s discretionary judgment concerning the removal of DACA-eligible noncitizens has not been eliminated, but rather has simply been relocated from DHS’s front line operatives to the agency’s policy heads.
To be clear, I do not assert that enforcement-based equitable determinations through programs like DACA and DAPA are an ideal route to proportionality in immigration law. It would be far better for Congress to enact legislation providing a path to lawful status for or at least some of the undocumented population in this country and restoring discretionary power to immigration judges to balance equities in making deportation decisions. But, sadly, Congress has been unwilling or unable to pass significant immigration reform for many years, leaving us with a system in which enforcement officials wield the bulk of equitable responsibility.
Seen in this light, DACA and DAPA represent the current administration’s most ambitious efforts to ensure that we do not banish those for whom such a life-altering penalty would be unjust in light of their conduct and circumstances. To be sure, whether deportation is fair or proportional in particular circumstances is a complex and inevitably contestable determination. Nevertheless, for the youth who would benefit from DACA, the determination seems almost unassailable. For the law-abiding, long-present parents of U.S. citizens who would benefit from DAPA, it is at least reasonable.
Perhaps those generalized discretionary determinations amount to substantive rules that should have gone through the APA’s notice and comment rules. In a previous post in this symposium Michael Kagan thoroughly addresses that question. Perhaps DHS’s strategic errors in this litigation have led us to this point, as Shoba Wahdia and others have observed. In any event, however, the bottom line is that in a humane immigration system, sanctions as severe as deportation and bars on reentry would be commensurate with the noncitizen’s underlying conduct and mitigating factors. DACA and DAPA reflect important if imperfect attempts by the current administration to manage the responsibility it bears to implement immigration law in a consistent, transparent, and proportional way. I fear the take-away lesson from these efforts for future administrations will be to throw equitable discretion to the wind, or, at best, to return to the secretive and inconsistent processes of earlier decades.
Thursday, November 26, 2015
It is Thanksgiving day. Which of these two famous people --- President Obama and Donald Trump -- would you rather have as President of the United States, both whom made the headlines today but for very different reasons?
Immigration Article of the Day: Immigration at the Airport: Australia's Front Line by Louise Boon-Kuo
Immigration at the Airport: Australia's Front Line by Louise Boon-Kuo, University of Sydney - Faculty of Law October 27, 2015 Alternative Law Journal, Vol. 40, No. 3, pp. 180-184, 2015 Sydney Law School Research Paper No. 15/94
Abstract: The Immigration Department has participated in the Seven Network reality television program Border Security since 2004, and at times conducts immigration interviews at the airport while filmed by the program. This article examines whether such involvement affects the appearance of the impartiality of immigration decisions following the issues that arose in December 2014, when the Immigration Department cancelled the visa of African American transgender and AIDS activist Monica Jones.
Yesterday, the U.S. Court of Appeals for the Fifth Circuit has issued a revised opinion in Texas v. United States. The changes appear to be minimal and the bottom line remains the same, with the preliminary injunction barring the implementation of the expanded deferred action program remaining in place.
Marty Lederman weighs in on Balkinization on why the Supreme Court should decide Texas v. United States this Term. The timing is tight and Texas has sought additional time to file a response to the petition of certiorari filed by the United States. Undocumented immigrants who may be eligible for work authorization under President Obama's expanded deferred action program are suffering injury as a result of the delay.