Monday, February 8, 2016
Abstract: This Essay focuses on the cost that comes from the loss of a different kind of discretion in immigration law, where residual discretionary authority can act as a corrective measure at the edges of rules. Such discretion at the law's margins constitutes a vital means to correct the errors that inevitably happen when even the best rules do an imperfect job of capturing the world's complexity. The essay explores who is left in the limbo between DACA and DAPA on the one side, and carefully defined enforcement priorities on the other. This essay also points to the troubling trend that even where discretion remains in these programs and priorities, the discretion exists only to limit the relief available to immigrants: the enforcement box may, as a matter of discretion, expand, but the benefit box may, as a matter of discretion, shrink. The Essay concludes that advocates and scholars can and should celebrate what these programs do accomplish, but we must ultimately demand something much better than the deal we are getting: immigration reform and the restoration of some degree of discretion at the points in the law where well-defined rules meet the individuals who show those rules' limitations.
"Like many immigration law professors, I have long thought that President Obama’s deferred action programs are within the Executive’s statutory and constitutional authority. But as I re-read the Fifth Circuit opinion and the briefs in US v. Texas, I am becoming persuaded that the states challenging DAPA may have a valid point about one aspect of the program.
In short, deferred action is a well-established form of prosecutorial discretion in immigration enforcement that the Court has long accepted. But DAPA may go a step too far by declaring that beneficiaries of prosecutorial discretion should be considered `lawfully present' in the United States even though they are removable according to the Immigration and Nationality Act (INA). Texas’ strongest arguments against DAPA are about this lawful presence provision, not about deferred action."
"As this series will illustrate, Texas v. United States is a catalyst for immigration law scholars’ endeavors to better understand administrative law. Not only do immigration law scholars need to engage with administrative law, but there is also plenty of space for administrative law scholars to embrace immigration law."
Look for other posts this week from David Rubenstein, Chris Walker, Shoba Wadhia, and Bijal Shah.
This online symposium builds on the program by the same name ay the 2016 Association of American Law Schools Annual meeting.
Detroit’s Deputy Mayor, Isaiah “Ike” McKinnon, will give the keynote address.
The Honorable Gerald E. Rosen, Chief Judge of the U.S. District Court for the Eastern District of Michigan, will discuss his service as the chief mediator in negotiations between the City of Detroit and its creditors, and how the grand bargain they reached helped resolve Detroit’s recent bankruptcy. Detroit Mercy Law alumnus Eugene A. Gargaro, Jr. (’67) will join Judge Rosen in this discussion.
Additional speakers and topics include: Roy Finkenbine (1863 Riot), Tom Stanton (The Black Legion), and Greg Sumner (Race Relations and WWII) of University of Detroit Mercy; Brian Frye of University of Kentucky College of Law (DIA and Bankruptcy); Shaakirrah Sanders of University of Idaho College of Law (Impact of “Ag-Gag” Legislation on the Urban Farmer); Timothy Dugdale of Atomic Quill Media in Windsor, Ontario (Pioneer Visas); and Andrea Boyack of Washburn University School of Law (The New American Dream in Detroit).
Dugdae, an occasional contributor to the ImmigrationProf blog, I will a paper, Snyder's Pioneer Visas. The paper discusses Michigan Governor Rick Snyder's proposal to secure work visas for foreign "pioneers" anxious to live in Detroit and launch a business.
SCOTUSBlog.com today has begun posting in an on-line symposium on the pending Supreme Court case of United States v. Texas. The first installment is "Constitutional limits of presidential power – changing the law or enforcing it," by Jay Sekulow, Chief Counsel of the American Center for Law and Justice (ACLJ) law. The ACLJ is planning to file an amicus brief in United States v. Texas. Here is the punch line of Sekulow's post:
"The orders, opinions, and rationale of the lower courts make clear: The president believes he has virtually limitless authority, and his administration is unrestrained by notions of candor to the court . . . . And while the concept that a president would exceed his constitutional powers is not novel, neither is the concept that the judiciary will stand in his way."
Jie Zong and Jeanne Batalova have a report in Migration Information Source on college-educated immigrants in the United States.
In 2014, 10.5 million immigrants had a college degree or higher, representing about 29 percent of the total 36.7 million U.S. foreign-born population ages 25 and over. The Immigration Act of 1990 and other legislation passed in the last two decades have facilitated the immigration of college-educated individuals to the United States by creating temporary visa programs for high-skilled workers and attracting international students to higher education institutions, especially those in science, technology, engineering, and math (STEM) fields.
The number of immigrants with higher education has grown at more than twice the rate of the same population among the U.S. born. Between 1990 and 2000, the college-educated immigrant population increased 89 percent from 3.1 million to 5.9 million, and a further 78 percent between 2000 and 2014 (from 5.9 million to 10.5 million. The native-born college-educated population grew over the same periods by 32 percent and 39 percent, respectively. Given the faster rate of growth, the foreign-born share of the total college-educated population also increased over the last two and a half decades: from 10 percent in 1990 to 16 percent in 2014.
Sunday, February 7, 2016
Secretary of the Department of Homeland Security Jeh Johnson looks at the field for Super Bowl 50
It is Super Sunday and steps have been taken to ensure that Super Bowl 50 is safe and sane. Secretary of Homeland Security Jeh Johnson announced that he met earlier this week with local law enforcement officials and the National Football League (NFL) security team to oversee the Department of Homeland Security (DHS) security operations that will help ensure the safety and security of employees, players and fans during Super Bowl 50.
“Dozens of federal agencies and components, including multiple components of the Department of Homeland Security, are contributing to security measures seen and unseen in connection with the Super Bowl,” said Secretary Johnson. “Within the Department of Homeland Security itself, TSA, CBP, ICE, Coast Guard, the Secret Service, FEMA, our Office of Intelligence and Analysis, and our National Protection and Programs Directorate are contributing to the security of this event. The public has a role to play too. “If You See Something, Say SomethingTM” is more than a slogan. Public vigilance and public awareness contributes to a safe and secure event.”
USA Today reports that anti-immigration and anti-Muslim groups from across Europe demonstrated Saturday as migrants fleeing a renewed offensive by the Syrian government surged along Turkey's border. In Dresden, thousands of members of Germany's Patriotic Europeans Against the Islamization of the Occident, or PEGIDA, participated in a rally to demonstrate Chancellor Angela Merkel's liberal policies directed at migrants. Many in the crowd chanted "Merkel must go" and held signs comparing the German leader to a dictator. The chancellor's popularity ratings have tumbled. Siegfried Däbritz, a PEGIDA leader, said in an address that he doubted those granted asylum in Germany could integrate into the nation's culture. He called for "resistance to immigration from the Islamic area."
Immigration was a topic of the discussion in the Republican Presidential debate in New Hampshire last night. Governor John Kasich seemed moderate and emphasized the impossibility of mass removals of 11-plus million undocumented immigrants. Senator Ted Cruz would build a fence, add Border Patrol officers, and deport persons in the country unlawfully (apparently whatever the impact on their families). Senator Marco Rubio said that the American public would not accept comprehensive immigration reform until the Executive Branch showed a commitment to immigration enforcement. Nothing too surprising came up. Here is the Wall Street Journal two minute version. The immigration portion of the debate was clipped on YouTube.com:
Saturday, February 6, 2016
CNN offers some disturbing news from the political front lines. New Hampshire voters are receiving many robocalls asking for their vote; one is from white nationalists with a simple message:
"We don't need Muslims. We need smart, educated, white people," according to the male voice on the calls, which urges New Hampshire voters to vote for Donald Trump.
Three white nationalist leaders have banded together to form their own super PAC in support of Trump, even though Trump claims that he does not want their support. The American National Super PAC is funding the robocall effort, which is organized under a separate group called the American Freedom Party.
Here is the platform of the American Freedom Party:
"White Americans should select a party that advocates for issues and concerns affecting European Americans! Change your party allegiance to the American Freedom Party. A Nationalist party that shares the customs and heritage of the European American people. We need a Nationalist Party interested in defending our borders, preserving our language and promoting our culture. The American Freedom Party is not beholden to foreign governments, special interest groups, nor Wall Street. The American Freedom Party is for America First!"
Immigration Article of the Day: Policing Sex, Policing Immigrants: What Crimmigration's Past Can Tell Us About Its Present and Its Future by Rachel E. Rosenbloom
Policing Sex, Policing Immigrants: What Crimmigration's Past Can Tell Us About Its Present and Its Future by Rachel E. Rosenbloom, Northeastern University - School of Law 2016 California Law Review, Forthcoming
Abstract: The flow of information from local police to federal immigration officials forms a central element of the contemporary phenomenon known as “crimmigration” — the convergence of immigration enforcement and criminal law enforcement. This Essay provides the first historical account of the early roots of this information flow and a new perspective on its contemporary significance.
Previous scholarship locates crimmigration’s origins in the 1980s and ’90s. Drawing on extensive archival research on day-to-day interactions between local police and federal immigration officials, this Essay explores a lost chapter in the development of crimmigration: the pipeline that brought men arrested by vice squads in gay cruising areas into the deportation system in the 1950s and ’60s. This history demonstrates that the contemporary crimmigration system is best understood not as the merging of two enforcement systems that were formerly separate, but rather as the product of shifts within both policing and the deportation systems that have rendered many more people vulnerable to the intersection of the two. Drawing parallels between the use of vice squad arrest records by the Immigration and Naturalization Service in the 1950s and the use of police data by the Department of Homeland Security today, this Essay argues that a symbiotic relationship has developed in recent years between “broken windows” policing and the deportation system. The deportation system has come to depend on the existence of an expansive criminal justice system that subjects low-income communities of color to regular monitoring through frequent stops and arrests for minor offenses. At the same time, programs that promote police-immigration cooperation have themselves become drivers of over-policing.
Friday, February 5, 2016
Running back Juwan Thompson, 23, is on the Denver Broncos. Thompson was born in St. Croix, U.S. Virgin Islands, an insular U.S. territory. U.S. Virgin Island residents are U.S. citizens so Thompson technically is not "foreign-born."
Super Bowl 50 is this Sunday and the parties no doubt will be memorable. Behind the scenes, the Department of Homeland Security (DHS) has been at work in ensuring safety and security for all at this big event.
Yesterday, DHS announced two new partnerships between the DHS Blue Campaign, the unified voice for the Department’s efforts to combat human trafficking, and the California Hotel & Lodging Association (CH&LA) and the San Joaquin Regional Rail Commission (SJRRC) Altamont Corridor Express (ACE). This announcement is especially important as the Department continues its efforts to help ensure the security of visitors and fans for Super Bowl 50. High-profile events, like the Super Bowl, draw large crowds and have become lucrative opportunities for criminals engaged in human trafficking. CH&LA and SJRRC ACE will display Blue Campaign materials at lodging and railway stops throughout California, providing residents and visitors to the area with information about the indicators of human trafficking and how to report it. Materials will also have resources and information on how to receive support for potential victims.
Isn't watching the Republican presidential candidates duke it out just plain fun? To add to the festivities, we have two Cuban Americans jabbing without restraint at each other on none other than -- immigration!
1. Cruz claims Rubio “advocates amnesty for criminals who are here illegally.” Not true. Rubio supports deporting felons, and he has supported legislation that would bar legal status for those with three or more misdemeanors and those with a single serious misdemeanor, such as a domestic violence or drunk driving offense.
Thursday, February 4, 2016
Actress Diane Guerrero, best known for her roles in “Jane the Virgin” and “Orange is the New Black,” is taking a public stance today against politicians who are fueling intolerance with hate speech and rhetoric that target and criminalize the immigrant community. Guerrero, whose parents were both deported when she was 14, tells her personal story in a new video today on behalf of the Immigrant Legal Resource Center (ILRC) and United We Dream (UWD).
In the video, Guerrero says, “Whatever our personal reasons — whether we were born here or our parents came here for a shot at the American dream — we need to stand up to reactionary policies aimed at targeting and criminalizing the immigrant community. We can and must do better.”
This is not the first time Guerrero has spoken out about her story and comes as politicians, from members of Congress to the 2016 presidential field, address immigration and the impact that mass incarceration and mass deportation has on immigrant communities. At the end of the video, Guerrero says, “Please join me by telling our members of Congress and our local and state leaders to stand with us by condemning policies that separate families and destroy our communities. We have to work together to ensure that no child ever comes home to an empty house.” Sign a petition here.
“I hope this creates a sense of urgency around our broken immigration system and the need for policies that keep families together,” said Guerrero in a statement about her partnership with the ILRC and UWD. “We have to stop tearing families apart and subjecting immigrants to the kind of fear and oppression that many fled from in their home countries. We have to end policies that encourage racial profiling and mass incarceration. We have to get local law enforcement out of the business of deportation.”
Among the enforcement-centric policies highlighted by Guerrero, the Obama Administration deported more than 300,000 individuals in 2014. Additionally, current law requires 34,000 immigrants per day be detained while in deportation proceedings, including entire families.
The full script of the video is below:
With all the hate speech and the intolerance these days, it’s easy to forget that we are a nation of immigrants.
Whatever our personal reasons — whether we were born here or our parents came here for a shot at the American dream — we need to stand up to reactionary policies aimed at targeting and criminalizing the immigrant community. We can and must do better.
I was 14 when my family was torn apart by deportation. My family was taken because they were undocumented immigrants — just like 11 million other people living and working in America today.
In recent years the Administration has taken steps to protect young immigrants — but it’s not enough — and now some lawmakers are proposing drastic and harsh new laws that would pave the way for more intolerance, more deportation and more family separation. We need your help.
Please join me by telling our members of congress and our local and state leaders to stand with us by condemning policies that separate families and destroy our communities. We have to work together to ensure that no child ever comes home to an empty house. For more information on how you can help visit: www.unitedwedream.org/fight
Abstract: The President has broad discretion to refrain from enforcing many civil and criminal laws, either in general or under certain circumstances. The Supreme Court has not only affirmed the constitutionality of such under-enforcement, but extolled its virtues. Most recently, in Arizona v. United States, it deployed the judicially created doctrines of obstacle and field preemption to invalidate state restrictions on illegal immigrants that mirrored federal law, in large part to ensure that states do not undermine the effects of the President’s decision to refrain from fully enforcing federal immigration provisions.
Such a broad application of obstacle and field preemption is inconsistent with the text and original understanding of the Supremacy Clause and unnecessarily aggrandizes the practical extent of executive authority. The Supremacy Clause prohibits states from attempting to nullify or ignore federal laws that they believe are unconstitutional or unwise. It should not bar states from engaging in “reverse nullification” by enacting statutes that mirror federal law to ameliorate the effects of executive under- or non-enforcement. Far from undermining the “law of the land,” reverse nullification reinforces it by ensuring that the President cannot effectively amend or nullify federal law by declining to enforce it. The Court should craft an exception to its obstacle and field preemption doctrines to accommodate reverse nullification, and Congress should generally include an exception permitting reverse nullification in statutes’ express preemption provisions.