Saturday, November 22, 2014
One part of the new immigration action announced by President Obama and outlined in detail by DHS is the end of a federal program called Secure Communities, also known as S-Comm.
Secure Communities was created in 2008. It enabled local law enforcement to forward the fingerprints of every individual arrested and booked into custody to federal authorities so that they could be checked against immigration records. If it was determined that the fingerprints matched an individual without authorization to remain in the country, ICE could issue a detainer - essentially asking the local authorities to continue hold the individual until they could be picked up by ICE, who would begin the process of deportation.
The 2008 pilot program operated in just 14 jurisdictions. It expanded exponentially from there to reach thousands of jurisdictions.
But not all local law enforcement agencies wanted to be a part of S-Comm. Some who had initially agreed to the program wanted to withdraw. But by 2010, ICE had drafted a memo supporting its position that S-Comm should be mandatory by 2013. By 2011, that had become the official position of the federal government. S-Comm would be mandatory by 2013.
One of the reasons local authorities disliked S-Comm was because it triggered ICE notification based on arrest and booking - not convictions. After all, not everyone arrested is convicted of a crime. They may not even be charged with a crime. And so the program had the effect of chilling relationships between law enforcement and immigrant communities.
Another problem with S-Comm had to do with the ICE detainers. There was a question about whether these detainers were voluntary. In a February 2014 letter to Representative Mike Thompson, ICE confirmed that the detainers were voluntary. Soon after, the Third Circuit agreed. And in Oregon, a plaintiff was awarded damages under 42 USC § 1983 after being held on a ICE detainer after she could have been released on bail. The Oregon decision led sheriffs around the country to publicly announce their refusal to hold people based on ICE detainers because of a fear of civil liability.
All of which brings us to the president's announcement on Thursday. Jeh Johnson, the Secretary of Homeland Security, has issued a new policy memo. The first words of the memo are: "The Secure Communities program, as we know it, will be discontinued." He goes on to say:
The goal of Secure Communities was to more effectively identify and facilitate the removal of criminal aliens in the custody of state and local law enforcement agencies. But the reality is the program has attracted a great deal of criticism, is widely misunderstood, and is embroiled in litigation; its very name has become a symbol for general hostility toward the enforcement of our immigration laws.
DHS will continue to assess fingerprint data for local law enforcement. But
unless the alien poses a demonstrable risk to national security, enforcement actions through the new program will only be taken against aliens who are convicted of specifically enumerated crimes.
This is a momentous change. In keeping with the president's promise to deport "felonies, not families," individuals who have not been charged with or convicted of a crime will no longer be swept up by local law enforcement - regardless of their immigration status. The promise appears to be a focus on those convicted of serious crimes.
Jeh Johnson also addressed the problem of detainers.
I am directing ICE to replace requests for detention (i.e., requests that an agency hold an individual beyond the point at which they would otherwise be released) with requests for notification (i.e. , requests that state or local law enforcement notify ICE of a pending release during the time that person is otherwise in custody under state or local authority).
If in special circumstances ICE seeks to issue a request for detention (rather than a request for notification), it must specify that the person is subject to a final order of removal or there is other sufficient probable cause to find that the person is a removable alien, thereby addressing the Fourth Amendment concerns raised in recent federal court decisions.
This is a sea change that is to be commended.
As outlined in some detail by the Department of Homeland Security, President Obama's recently announced immigration plan has quite a few components. In the coming days, I will (and my co-bloggers are free to join in) comment on various parts of the plan.
One of the immigration measures near the end of DHS's list of initiatives is to "Promote the Naturalization Process":
"To promote access to U.S. citizenship, we will permit the use of credit cards as a payment option for the naturalization fee, and expand citizenship public awareness. It is important to note that the naturalization fee is $680, currently payable only by cash, check or money order. DHS will also explore the feasibility of expanding fee waiver options."
1. Implementing Credit Card Processing
2. Conducting a Fee Study to Explore a Partial Fee Waiver Program
3. Expanding Public Awareness/Promotion Media Campaigns
The naturalization component part of the Obama immigration will likely receive little attention -- and rightly so. Although allowing fees can be substantial (with total fees for filing a naturalization petition and related documents cost around $600), allowing for the acceptance of credit card payment and exploring a possible partial fee waiver arrangement, cannot be said to be especially far-reaching changes to the naturalization process. These measures, of course, might encourage some lawful permanent residents to file naturalization papers; however, one would not think that any increase in petitions due to these changes would be great. Depending on the concrete actions taken, outreach and media efforts to promote naturalization also may have some positive impacts in informing eligible lawful permanent residents of the process for obtaining citizenship. Still, the memo does not seem to propose anything like a naturalization drive or any kind of aggressive effort to encourage eligible immigrants to become citizens.
With respect to naturalization, the Obama administration in its current immigration initiative package unquestionably has taken a cautious approach. The administration may have wanted to steer clear of the controversy that surrounded the "Citizenship USA" program led by Vice President Al Gore in the Clinton years, which was criticized as a poorly crafted program that increased naturalization numbers greatly but sacrificed quality for quantity and was little more than a device to secure more Democratic voters. Conservative commentators continue to claim that Democrats are using immigration for a variety of political ends -- including gaining new Democratic voters.
Put simply, the naturalization component of the Obama immigration initiatives is likely to be uncontroversial and to have limited impact on the current citizenship process. The President took the cautious approach, probably in an attempt not to provoke cries of political partisanship.
Abstract: The image of a hotel with each floor representing different immigration statuses provides a way to introduce students to the confounding immigration system we have in the United States, on both technical and policy levels. The imagery of the hotel helps to explain how one gets into the immigration hotel (the admissions process), and also how one gets kicked out (through various forms of removal proceedings). Analogies to different forms of eviction allow for parallels as well, depending on the nature of the building in question (e.g. hotel room, apartment, or condo) and the legal status of the person being removed (temporary traveler, renter/lease holder, home owner). Drawing on property law also allows for different floors to represent different types of immigration status. In a nutshell, citizenship occupies the top floor and is akin to cooperative or condominium ownership. Legal permanent residency occupies the apartment floor, with occupants tied to leases with strict terms. Breaking the terms of the lease can lead to eviction (i.e., deportation). Traditional hotel rooms are reserved for temporary non-immigrant visa holders. Sandwiched on a hard-to-get-to floor between the apartments and the hotel rooms is the sanctuary: a place for refugees, survivors of crimes and human trafficking, unaccompanied children, and those stranded in the US as the result of natural and human made disasters in their homelands. The lobby serves not only as the admissions entry point, but also as a place of legal limbo (sort of like an easement), where people are sometime allowed to hangout for years on end in renewable quasi-status like parole and deferred action. Finally, the basement holds those without status – either they never had it, by entering unauthorized at an unregulated entry point; or those who entered legally but have violated their terms of status. The cellar or dungeon is immigration detention. The building analogy proves durable – both on the surface as an explanatory heuristic (e.g., “citizenship is like ownership”) and as a way to explore the history behind immigration categories (e.g., who has been entitled to citizenship mirrors who has been entitled to own real property). Parallels between the history of property real ownership and its protection (through the use of restrictive covenants) and the history of immigration regulation (such as the Chinese Exclusion Acts) illustrate how the analogy can also do more than just explain the current operation of immigration law, but illuminate how the laws came into being in larger historical context.
University of California President Janet Napolitano announced on Friday that UC will expand legal services to undocumented students at six campuses. The UC Davis School of Law will host a pilot legal services center that will serve the immigration-related legal needs of students on UC campuses without law schools: UC Merced, UC San Francisco, UC Santa Cruz, UC Santa Barbara, UC San Diego and UC Riverside.
The pilot program was created in response to a recommendation made by the President's Advisory Committee on Undocumented Students, a group of faculty, administrators and students appointed by Napolitano earlier this year.
The Undocumented Student Legal Services Center will provide high-quality legal assistance to support the needs of undocumented and AB 540-eligible students.
“This pilot program is just the beginning,” Napolitano said. “We want to create a model for other UC campuses and universities across the nation to provide legal representation for undocumented students on their campuses.”
The program will operate out of the UC Davis School of Law Immigration Law Clinic. One of the first of its kind in the nation, the program offers law students the opportunity to represent immigrants in immigration court and before immigration agencies under the direction of staff attorneys.
Services to UC students will include:
Legal clinics and processing of Deferred Action for Childhood Arrivals (DACA) and DACA renewal applications, including applications related to the expansion of DACA announced by President Obama on Nov. 20
Legal services advice and counseling to undocumented students
Informational and know-your-rights sessions
On-campus walk-in counseling and advice sessions
Training for students and volunteers in immigration services
“This groundbreaking program is a way for the University of California and UC Davis School of Law to assist undocumented UC students and help them to continue their educational journey,” said Dean Johnson. “These are the state’s future entrepreneurs, engineers, and community leaders, and we all benefit by ensuring that they can pursue the American dream.”
María Blanco will serve as executive director of the Undocumented Student Legal Services Center. Blanco has more than 20 years of experience as a litigator and advocate for immigrant rights. In previous roles, she worked at UC Berkeley School of Law, the California Community Foundation, and the Mexican American Legal Defense and Educational Fund, where she played a key role in the passage of AB 540. She currently serves on the board of Public Policy Institute of California and is a commissioner on the California Citizens’ Redistricting Commission.
Immigration is a complex area of law requiring expertise often not readily available to immigrant communities. Undocumented and AB 540 students and their families face immigration-related barriers to their full integration on campuses and in their communities. Without legal representation, many fail to pursue benefits for which they may qualify. The principal goal of the pilot project center will be to close this gap in access to the legal system and ensure that AB 540 and undocumented students have the resources and support they need to succeed as scholars, students, and citizens of California.
Various services for undocumented students currently are available at UC campuses with law schools; the pilot program will help to design a structure that can be used at other campuses in the future.
Friday, November 21, 2014
President Obama's Immigration Move: A Courageous Stance, Beyond His Authority, or Too Little Too Late?
President Obama made a major immigration speech last night (see the transcript) and announced changes to current immigration policy. Early on in the speech, the President emphasized that he hopes to continue to work with Congress to enact immigration reform but, in the meantime, was taking modest action within his constitutional and statutory authority.
The White House description of the plan can be found here. While Republicans loudly scream foul, immigration analyst Ted Alden sees the changes as demonstrating the limits on the executive powers to solve the current problems with the American immigration system.
After the speech, the Department of Homeland Security posted on its website the following details on the program, which is entitled "Fixing Our Broken Immigration System Through Executive Action - Key Facts." The webpage also includes links for further details on each of the initiatives:
"The President asked Secretary Johnson and Attorney General Eric Holder to undertake a rigorous and inclusive review to inform recommendations on reforming our broken immigration system through executive action. This review sought the advice and input from the men and women charged with implementing the policies, as well as the ideas of a broad range of stakeholders and Members of Congress from both sides of the aisle. Our assessment identified the following ten areas where we, within the confines of the law, could take action to increase border security, focus enforcement resources, and ensure accountability in our immigration system."
Strengthen Border Security
DHS will implement a Southern Border and Approaches Campaign Strategy to fundamentally alter the way in which we marshal resources to the border. This new plan will employ DHS assets in a strategic and coordinated way to provide effective enforcement of our laws and interdict individuals seeking to illegally across land, sea, and air. To accomplish this, DHS is commissioning three task forces of various law enforcement agencies. The first will focus on the southern maritime border. The second will be responsible for the southern land border and the West Coast. The third will focus on investigations to support the other two task forces. In addition, DHS will continue the surge of resources that effectively reduced the number of unaccompanied children crossing the border illegally this summer. This included additional Border Patrol agents, ICE personnel, criminal investigators, additional monitors, and working with DOJ to reorder dockets in immigration courts, along with reforms in these courts.
Revise Removal Priorities
DHS will implement a new department-wide enforcement and removal policy that places top priority on national security threats, convicted felons, gang members, and illegal entrants apprehended at the border; the second-tier priority on those convicted of significant or multiple misdemeanors and those who are not apprehended at the border, but who entered or reentered this country unlawfully after January 1, 2014; and the third priority on those who are non-criminals but who have failed to abide by a final order of removal issued on or after January 1, 2014. Under this revised policy, those who entered illegally prior to January 1, 2014, who never disobeyed a prior order of removal, and were never convicted of a serious offense, will not be priorities for removal. This policy also provides clear guidance on the exercise of prosecutorial discretion.
End Secure Communities and Replace it with New Priority Enforcement Program
DHS will end the Secure Communities program, and replace it with the Priority Enforcement Program (PEP) that will closely and clearly reflect DHS’s new top enforcement priorities. The program will continue to rely on fingerprint-based biometric data submitted during bookings by state and local law enforcement agencies and will identify to law enforcement agencies the specific criteria for which we will seek an individual in their custody. The list of largely criminal offenses is taken from Priorities 1 and 2 of our new enforcement priorities. In addition, we will formulate plans to engage state and local governments on enforcement priorities and will enhance Immigration and Customs Enforcement’s (ICE) ability to arrest, detain, and remove individuals deemed threats to national security, border security, or public safety.
Personnel Reform for ICE Officers
Related to these enforcement and removal reforms, we will support job series realignment and premium ability pay coverage for ICE ERO officers engaged in removal operations. These measures are essential to bringing ICE agents and officers pay in line with other law enforcement personnel.
Expand Deferred Action for Childhood Arrivals (DACA) Program
We will expand eligibility for DACA to encompass a broader class of children. DACA eligibility was limited to those who were under 31 years of age on June 15, 2012, who entered the U.S. before June 15, 2007, and who were under 16 years old when they entered. DACA eligibility will be expanded to cover all undocumented immigrants who entered the U.S. before the age of 16, and not just those born after June 15, 1981. We will also adjust the entry date from June 15, 2007 to January 1, 2010. The relief (including work authorization) will now last for three years rather than two.
Extend Deferred Action to Parents of U.S. Citizens and Lawful Permanent Residents
DHS will extend eligibility for deferred action to individuals who (i) are not removal priorities under our new policy, (ii) have been in this country at least 5 years, (iii) have children who on the date of this announcement are U.S. citizens or lawful permanent residents, and (iv) present no other factors that would make a grant of deferred action inappropriate. These individuals will be assessed for eligibility for deferred action on a case-by-case basis, and then be permitted to apply for work authorization, provided they pay a fee. Each individual will undergo a thorough background check of all relevant national security and criminal databases, including DHS and FBI databases. With work-authorization, these individuals will pay taxes and contribute to the economy.
Expand Provisional Waivers to Spouses and Children of Lawful Permanent Residents
The provisional waiver program DHS announced in January 2013 for undocumented spouses and children of U.S. citizens will be expanded to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents. At the same time, we will further clarify the “extreme hardship” standard that must be met to obtain the waiver.
Revise Parole Rules
DHS will begin rulemaking to identify the conditions under which talented entrepreneurs should be paroled into the United States, on the ground that their entry would yield a significant public economic benefit. DHS will also support the military and its recruitment efforts by working with the Department of Defense to address the availability of parole-in-place and deferred action to spouses, parents, and children of U.S. citizens or lawful permanent residents who seek to enlist in the U.S. Armed Forces. DHS will also issue guidance to clarify that when anyone is given “advance parole” to leave the country – including those who obtain deferred action - they will not be considered to have departed. Undocumented aliens generally trigger a 3- or 10-year bar to returning to the United States when they depart.
Promote the Naturalization Process
To promote access to U.S. citizenship, we will permit the use of credit cards as a payment option for the naturalization fee, and expand citizenship public awareness. It is important to note that the naturalization fee is $680, currently payable only by cash, check or money order. DHS will also explore the feasibility of expanding fee waiver options.
Support High-skilled Business and Workers
DHS will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and strengthen and expand opportunities for students to gain on-the-job training. For example, because our immigration system suffers from extremely long waits for green cards, we will amend current regulations and make other administrative changes to provide needed flexibility to workers with approved employment-based green card petitions.
The parents of Deferred Action for Childhood Arrivals (DACA) recipients were not singled out for deferred action or any other kind of relief, apparently because of the opinions expressed in a Department of Justice memo questioning the legality of such action (for a link to, and discussion of, this memo, click here).
There has been considerable discussion about whether the President posseses the authority to take the modest immigration action that he did. Not surprisingly, some Republican leaders in Congress claimed after the speech that the President's actions go beyond his constitutional authority. Professor Darren Hutchinson of Dissenting Justice has a succinct and effective rebuttal to the claims that President Obama lacks the constitutional and statutory authority for the deferred action and related measures that he outlined in the speech. Similarly, Professor Eric Posner of the University of Chicago School of Law has declared that the Obama plan is "perfectly constitutional." Nonetheless, Maricopa County's notorious Sheriff Joe Arpaio reportedly has already sued in the hopes of shutting down the Obama plan.
All in all, President Obama has unveiled a modest set of reform proposals that, in this blogger's opinion, fit comfortably within his powers and are wholly consistent with the dictates of Congress. Contrary to the claims that the President has declared himself to be the "Emperor of the United States" (Breitbart) or its "monarch" (Senator Ted Cruz), President Obama has outlined an approach to improving the current immigration system well within the constitutional mainstream. His administration clearly has worked hard to put together a program that addresses some pressing immigration problems in a legally responsible -- and certainly legally defensible -- manner. Although nothing is this uncertain world can ever be certain, it is difficult to see how any legal challenge to President Obama's measures could prevail in the end.
Thursday, November 20, 2014
“The Stranger” is a 40-minute documentary film commissioned by the Evangelical Immigration Table and produced by Emmy-award winning producer Linda Midgett. The Stranger profiles three immigrant stories and includes interviews with local and national Christian leaders. By highlighting biblical teaching related to immigrants, sharing compelling stories of immigrants who are also evangelical Christians, and addressing some common economic and political misconceptions, The Stranger seeks to mobilize evangelical Christians to respond to immigrants and to immigration policy in ways that are consistent with biblical principles.
As the nation awaits President Obama's speech on immigration and the rumored announcement of an executive order (I am inclined to think that it will not be an executive order but some kind of policy directive like that announcing the Deferred Action for Childhood Arrivals program), it might be helpful to consider the historical context and ripple effects of previous executive orders that touch on civil rights concerns -- orders that were quite controversial at the time of their issuance.
Executive Order 11246, signed by President Lyndon B. Johnson on September 24, 1965, established requirements for non-discriminatory practices in hiring and employment on the part of U.S. government contractors. It "prohibits federal contractors and federally assisted construction contractors and subcontractors . . . from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin." It also requires contractors to "take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin."
The order was a follow-up to Executive Order 10479 signed by President Dwight D. Eisenhower on August 13, 1953 establishing the anti-discrimination Committee on Government Contracts, which itself was based on a similar Executive Order 8802 issued by President Franklin D. Roosevelt in 1941.
The Executive Order differed significantly from the requirements of the Civil Rights Act of 1964, which only required organizations to document their practices once there was a preliminary finding of wrongdoing. The Order required the businesses it covered to maintain and furnish documentation of hiring and employment practices upon request. The Executive Order also required contractors with 51 or more employees and contracts of $50,000 or more to implement affirmative action plans to increase the participation of minorities and women in the workplace if a workforce analysis demonstrates their under-representation, meaning that there are fewer minorities and women than would be expected given the numbers of minorities and women qualified to hold the positions available.
Federal regulations require affirmative action plans to include an equal opportunity policy statement, an analysis of the current work force, identification of under-represented areas, the establishment of reasonable, flexible goals and timetables for increasing employment opportunities, specific action-oriented programs to address problem areas, support for community action programs, and the establishment of an internal audit and reporting system.
In 1969, the Nixon administration made affirmative action part of its civil rights strategy. In 1971, a three-judge panel of the U.S. Court of Appeals for the Third Circuit affirmed the validity of Executive Order 11246.
Executive Order 11246 set the groundwork in place for affirmative action, which remains controversial. In 1969, a American Bar Association Journal article referred to the order as "Executive Encroachment." Still, the order had far-reaching impacts on emploers and other important social institutions for generations, including through to this day.
Facebook Quote of the Day: "I will accept anti-immigration comments on this page only from people whose ancestors were born here."
President Obama’s Immigration Announcement Will Be Legal, and Includes an Implicit Enforcement Mechanism by Carrie Rosenbaum
President Obama’s impending immigration executive action will be legal and within his power. Tomorrow evening he will likely order temporary deferral of deportation for certain qualifying individuals, and eliminate Secure Communities. Deferred action is a form of prosecutorial discretion where an executive officer, here the president provides direction regarding efficient use of limited resources. Deferred action is not legalization or amnesty.
The president cannot provide legal resident status for unauthorized immigrants. He must however, use his discretion to set priorities for the Department of Homeland Security (DHS). Congress has in fact created a system that relies heavily on prosecutorial discretion encompassing both refraining from acting on enforcement, and providing discretionary remedies. Thus even if deferred action is characterized affirmatively as a remedy, it is within the president’s prosecutorial discretion powers.
History and the Constitution indicate that the president can institute a new executive order, similar to DACA in 2012. The Constitution supports such actions, and the courts have not disagreed. Congress has also established the DHS’s ability to set enforcement priorities through the Immigration and Nationality Act (INA). Their implicit acknowledgement of prosecutorial discretion is evidenced through their necessarily limited immigration enforcement appropriations.
Since 1956 presidents have issued 39 orders for temporary immigration relief. Even if the scope here is larger than previous actions that fact will not change the order from legal to illegal from a constitutional perspective or otherwise.
Expanded deferred action and the end of Secure Communities would help ensure that immigration enforcement is carried out in a way that is consistent with DHS’s stated priority of focusing on serious and dangerous criminals. The disproportionately large number of non-priority deportees resulting from Secure Communities revealed the lack of compliance with stated priorities. When President Obama ends Secure Communities or expands deferred action he will merely be definitively articulating what he has already said as far as who should be deported.
One critical issue that has yet to be addressed is the fact that deferred action would not just be a gift of reprieve from removal, but is an enforcement tool because anytime an individual applies for an immigration benefit (deferred action, work permits, etc.) they are subject to extensive background checks. By bringing individuals out of the shadows we are not just doing them and their families a favor, we are increasing the efficiency and effectiveness of identifying the few who truly might pose a threat to national security.
What about those who suggest deporting as many as possible instead of granting a reprieve? Congress’ appropriations only create the ability to deport about 400,000 annually. Even for the sake of argument, if all of the 11 million unauthorized immigrants currently present lacked a legal right to remain, it has been estimated that legal and procedural costs of a massive deportation would be in the hundreds of billions of dollars, costing thousands annually to individual taxpayers, and causing significant losses to other programs. Moreover, the result would be devastating not only to U.S. citizen family members and communities, but to the U.S. economy.
Extending deferred action will not open the floodgates. DACA in 2012 did not result in a measurable increase in unauthorized migration and the recent influx of women and their children fleeing violence in Central America is totally unrelated to deferred action. As is well documented, what fundamentally drives migration is economics and unlivable conditions in one’s home country.
There is no quick fix to curbing unauthorized migration. Helping to support increasing stability and economic development in sending countries would do more to decrease the migration drive than any number of costly fences, walls, or detention facilities. Until the debate is shifted to focus on the root causes of migration, no immigration reform measures will cease the flows, which we both need, and implicitly invite. It is important to remember that leaving one’s home is not something that most people want to do, but instead is often a necessity to protect or provide for their families. Extending a reprieve from deportation to adults and ending Secure Communities is lawful and logical and will hopefully encourage Congress to follow suit.
UPDATE (Nov. 22, 2014); Rosenbaum offers her thoughts on the Obama package in this Sacramento Bee op/ed.
Wednesday, November 19, 2014
The Association of American Law Schools annual meeting in Washington D.C. is right around the corner. Here are some of the immigration programs on the schedule:
Saturday, January 3, 2014, 3:30 pm to 5:15 pm
The 1965 Immigration Act: 50 Years of Race-Neutral (?) Immigration
On the occasion of its 50th anniversary, this joint program that will explore the 1965 Immigration Act’s origins; its legal, political, economic, and cultural effects; and its future, including proposals for alternative systems.
The 1965 Immigration Act, also known as the Hart-Celler Act, is arguably the most successful federal civil rights law since Reconstruction. Before 1965, the immigrant stream was overwhelmingly white, and predominantly from the countries of Northern and Western Europe. Since 1965, a supermajority of immigrants have been people of color from Asia and Central and South America and the United States is expected to become a majority minority nation as a whole by 2043. However, the 1965 Immigration Act may have ended formal racial discrimination but it did not eliminate race as a critical and problematic concern in the administration of immigration law. Moreover, it also perpetuated discrimination based on sexual orientation and political opinion. It failed to account for the interests of Mexican migrant workers who had traveled to the United States for generations but were restricted under the new law. It also had the effect of giving Africans few opportunities to come to the United States.
Business meeting of Section on Immigration Law at program conclusion
Business meeting of Section on Minority Groups at program conclusion
Speaker from a Call for Papers: Ming Hsu Chen, University of Colorado School of Law
Speaker: Gabriel "Jack" Chin, University of California at Davis School of Law
Speaker from a Call for Papers: Kevin R. Johnson, University of California at Davis School of Law
Speaker: Kunal Parker, University of Miami School of Law
Moderator: Maritza I. Reyes, Florida A&M University College of Law
Sunday, January 4, 8:30 am to 10:15 am
AALS Hot Topic/Bridge Program - The Tipping Point, How the Recent Migrant Children's Crisis
During the last year 70,000 unaccompanied migrant children entered the United States illegally. According to the United Nations High Commissioner for Refugees fifty-eight percent of these children were forcibly displaced and are potentially in need of international protection. Currently, the only protections available to these children are narrow forms of immigration relief. Such relief is onerous to obtain and therefore the success of a worthy child acquiring protection usually depends upon the assistance of an attorney. These children are not entitled to government-funded counsel and must proceed before an immigration judge alone. For some children there is no relevant immigration relief available.
The current crisis on the border has underscored the profound structural deficiencies in our federal agencies to meet the needs of unaccompanied immigrant children – as children. In addition to highlighting the current “surge” of children on the border and the failed policy responses, this panel seeks to provide solutions that both keep the children in need of international protection out of harm’s way, and are grounded in international human rights law and practice. This panel will recommend discrete steps for Congress and the executive branch to take in addressing significant structural gaps in the federal government’s capacity to provide for the best interest of each child in need of international sanctuary.
Speaker: Lauren Aronson, Michigan State University College of Law
Speaker: Lenni Beth Benson, New York Law School
Speaker: Erin Corcoran, University of New Hampshire School of Law
Speaker: Maria Woltjen, The University of Chicago, The Law School
Speaker: Ms. Wendy Young, Kids in Need of Defense
Monday, January 5, 3:30 pm to 5:00 pm
DACA: Exective Discretion or Lawmaking
This panel will present a rich case study to deepen the conversation on the issues raised in the first three panels. On June 15, 2012, Janet Napolitano, then head of the Department of Homeland Security, issued a Memorandum directing the immigration agencies to exercise prosecutorial discretion in favor of certain undocumented youths who came to the United States as children. USCIS responded by creating Deferred Action for Early Childhood Arrivals (“DACA”), under which nearly two million undocumented youths became eligible for a temporary reprieve from removal and for work authorization. As a result of DACA, youths became eligible for driver’s licenses under existing federal law. DACA could also bear on other issues currently debated by states such as the granting of professional licenses, including the license to practice law. DACA has not been without its critics: its legality has been challenged in litigation and some states have attempted to push back by refusing to issue DACA youths driver’s licenses. This panel will entertain the question of whether DACA is within the permissible scope of prosecutorial discretion in immigration and will also examine the dynamics and implications of cooperative or uncooperative federalism provoked by DACA.
Moderator: Alina Das, New York University School of Law
Speaker: Geoffrey Heeren, Valparaiso University School of Law
Speaker: Peter Margulies, Roger Williams University School of Law
Speaker: Juliet P. Stumpf, Lewis and Clark Law School
Speaker: Shoba Sivaprasad Wadhia, Pennsylvania State University The Dickinson School of Law
Stay tuned for news from the President on both Thursday and Friday.
Rumor has it that the President will announce an expanded deferred action program that is not as limited as the Obama administration's Deferred Action for Childhood Arrivals program, whch was announced in June 2012 and implemented in a matter of months. I also have heard that there is a chance that the Secure Communities program may be restricted or eliminated.
Check out the President's video on the upcoming announcements on Facebook.
The Migration Policy Institute (MPI) today launched a major new data tool offering national and state-level estimates of the 11.4 million unauthorized immigrants in the United States, including population size, countries and regions of origin, recency of arrival, educational enrollment and attainment, English proficiency, industries of employment and health insurance coverage. The data tool offers topline population estimates of the unauthorized population for the entire United States, 47 states and the District of Columbia, and has detailed profiles of their characteristics for the U.S., 41 states and D.C.; within days, the tool will be updated to add profiles for nearly 100 counties.
Using an innovative MPI methodology that takes U.S. Census Bureau data and imputes legal status for noncitizens, the tool also provides estimates of the age, gender, parental and marital status, top languages spoken, labor force participation and home ownership rates for unauthorized immigrants.
The data tool will permit significant new analysis of the unauthorized population by researchers, members of the media and the public. Some important trends emerge from an initial review of the new data:
• Significant shares of recently arrived unauthorized immigrants in some states, long- settled populations in others. In a wide variety of states, unauthorized populations are heavily comprised of recent arrivals who have been in the United States less than five years — and are thus unlikely to benefit from proposed executive action. More than 30 percent of the unauthorized populations in Hawaii, Louisiana, the District of Columbia, Mississippi, Kentucky, Maryland, Virginia, Ohio, Alabama and Massachusetts arrived in the United States less than five years ago. Nationwide, 22 percent of unauthorized immigrants arrived less than five years ago, with 47 percent having 10 years or more of residence. Less than 20 percent of the unauthorized in California, Oregon, Illinois, Arizona and Colorado have been in the United States less than five years.
• Only a handful of states have majority non-Mexican unauthorized populations. Mexico, which accounts for 58 percent (6.6 million) of all unauthorized immigrants in the United States, is the top country of origin in 39 states, followed by Guatemala, El Salvador, Honduras and China. Only five jurisdictions have their largest number of unauthorized immigrants from another country: Hawaii (Philippines), Massachusetts (Brazil), Rhode Island (Guatemala), and Maryland and D.C. (El Salvador).
• Significant gender imbalance. There is a significant gender imbalance nationally, with men representing 54 percent of unauthorized immigrants. In Louisiana, Mississippi and South Carolina, women account for less than 40 percent of unauthorized immigrants. By contrast Hawaii is the only state where women outnumber men in the unauthorized population, at 55 percent.
• Varying education levels. Unauthorized populations have the lowest levels of education in Idaho, Nebraska, New Mexico and Oklahoma, where 42 percent or more of adults have less than a ninth grade education (compared to 33 percent of the overall unauthorized population). The highest levels of education are seen in the District of Columbia, Massachusetts, Virginia, Ohio, Maryland, Pennsylvania, Michigan, Hawaii, New Jersey, Missouri and Connecticut, with at least 20 percent having a bachelor's degree or more (compared to 13 percent of the U.S. unauthorized population). Nationally, 49 percent of all unauthorized immigrants have a high school degree or higher.
• Disparate health insurance coverage. Lack of access to health coverage varied dramatically by state, ranging from an uninsured rate of 75 percent or more for unauthorized immigrants in Mississippi, South Carolina, New Mexico, Louisiana, Georgia, North Carolina, Tennessee, Texas and Oklahoma to a low of 26 percent or less in three jurisdictions that offer near-universal coverage of the general population: Hawaii, Massachusetts and the District of Columbia. Nationally, 63 percent of the unauthorized lack health coverage.
• High immigrant ownership in Texas, low in Mississippi. One of the states with the highest home ownership rates in the general population, Mississippi, has one of the lowest rates for home ownership by unauthorized immigrants: 74.1 percent versus 21 percent. And two states that have some of the lowest overall home ownership rates, Texas and Hawaii, report among the highest rates of home ownership by unauthorized immigrants (42 percent and 40 percent respectively). (For general population home ownership rates, see the U.S. Census Bureau.)
• Agriculture a Top 5 industry of employment in nine states. The states with the highest shares of their unauthorized workers in agriculture are all found in the Pacific Northwest: Idaho (32 percent), Washington State (22 percent) and Oregon (18 percent). Other states in which agriculture fell within the top five industries of employment are Kentucky, Michigan, California, Wisconsin, Iowa and North Carolina.
The video was a response to the tragic killing in October of two law enforcement officers by a man who apparently had been deported on two occasions and reentered the country without authorization. Sheriff Jones in a somewhat rambling yet unquestionably partisan seven-minute plus video lamented the problems caused by noncitizens who commit crimes (falsely suggesting that immigrants commit more crimes on the average than U.S. citizens, which is contrary to the social science literature), singled out the President for blame for failing to pass immigration reform and to effectively enforce the immigration laws, and demanded immigration reform of some kind (while also suggesting that some kind of deferred action program, one of the few tools open to teh President without congressional authorization, was insufficient).
Immigration Article of the Day: Taxing Migrants: A Smart and Humane Approach to Immigration Policy by Kevin J. Fandl
Taxing Migrants: A Smart and Humane Approach to Immigration Policy by Kevin J. Fandl, Fox School of Business, Temple University; Georgetown University Law Center; American University Washington College of Law May 30, 2014 Northwestern Interdisciplinary Law Review, Vol. 7, p. 127, Spring 2014 Fox School of Business Research Paper No. 14-038
Abstract: In the midst of heated debates over how tightly to secure the Southern border against an influx of unlawful migrants, businesses and consumers in the United States are relegated to the sidelines to await yet another ineffective and potentially harmful immigration reform proposal. The problem according to policymakers is that borders are porous and unlawful migrants can and do enter and occupy jobs that American citizens could have. With this problem in mind, policy solutions have centered on legalization of existing unlawful migrants and strengthening the border to stop intending migrants. Stepping away from the political fray, it becomes clear that this is not the problem at all. The real immigration problem is that protectionist laws and policies are exacerbating the existing imbalance between supply of and demand for migrant labor. The use of quotas to severely restrict skilled and unskilled migrants has made U.S. businesses less competitive than many U.S. trading partners, has maintained artificially high consumer prices, and has cost taxpayers billions of dollars in unnecessary enforcement programs. In this article, I explain why current immigration laws and reform proposals use protectionism to benefit narrow political interests that cost the U.S. economy jobs and economic growth. I propose reevaluating the need to separate immigration from other types of trade policy and regulation by legalizing and regulating labor migrants rather than criminalizing and dehumanizing them.
Tuesday, November 18, 2014
The New York Times Room for Debate looks at the following question: "does the president have the power to decide unilaterally whether to exempt millions of immigrants from deportation?" The debaters include Eric Posner (Chicago), Raquel Aldana (Pacific McGeorge), Elizabeth Price Foley (Florida International), Jan Ting (Temple), Josh Blackman (South Texas), and yours truly.
A Pew Hispanic Center report by Jeffrey S. Passel and D’Vera Cohn conclude that the U.S. unauthorized immigrant population has leveled off nationally after the Great Recession, but state trends have been more volatile. From 2009 to 2012, the population of unauthorized immigrants rose in seven states and fell in 14. Five East Coast states were among those where the number of unauthorized immigrants grew from 2009 to 2012—Florida, Maryland, New Jersey, Pennsylvania and Virginia. Numbers also rose in Idaho and Nebraska, according to the center’s estimates. Six Western states are among those with declines in unauthorized immigrant populations from 2009 to 2012—Arizona, California, Colorado, Nevada, New Mexico and Oregon. Other states with decreases over that period are in the South (Alabama, Georgia and Kentucky), the Midwest (Illinois, Indiana and Kansas) and the Northeast (Massachusetts and New York).
While President Barack Obama finalizes plans to take executive action on immigration and provide relief to a portion of the nation’s undocumented immigrant population, enforcement overdrive and paltry resources for the immigration court system have caused a significant backlog of cases waiting to be heard. New analysis published today by Center for American Progress experts Marshall Fitz and Philip E. Wolgin illustrates in a series of charts the effects that ramped-up enforcement has had on deportations and processing times for pending cases in the immigration courts.