Wednesday, September 24, 2014
President Obama appointed Denny Chin to be a judge for the U.S. Court of Appeals for the Second Circuit in 2009. Prior to that, Chin had been was appointed by President Clinton to the position of U.S. District Judge for the Southern District of New York, in 1994, and in that role he presided over the notable case U.S. v. Madoff.
From 1994 to 2010, Judge Chin served as a United States District Judge for the Southern District of New York. He presided over a number of notable matters, including cases involving Megan's Law, the Million Youth March, Al Franken's use of the phrase "Fair and Balanced" in the title of a book, the Naked Cowboy, the Google Books Project, and the United Nations Oil for Food Program. He also presided over the trial of an Afghan warlord charged with conspiring to import heroin and the guilty plea and sentencing of financier Bernard L. Madoff.
Judge Chin has taught legal writing at Fordham Law School since 1986. While in private practice, he provided extensive pro bono representation to the Asian American Legal Defense and Education Fund. He served as President of the Asian American Bar Association of New York from 1992-1994. He has served on the boards of numerous non-profit organizations, including Hartley House, Care for the Homeless, the Clinton Housing Association and the Prospect Park Environmental Center. Judge Chin is currently a Vice President of the Fordham Law School Alumni Association, a member of the advisory boards of the Feerick Center for Social Justice and the Center on Law and Information Policy at Fordham Law School, and a member of the Board of Trustees of Princeton University. Judge Chin is the recipient of the Woodrow Wilson Award from Princeton University, the Spirit of Excellence Award from the American Bar Association, the Edward Weinfeld Award from the New York County Lawyers Association, the Lifetime Achievement Award from Judicial Friends, the Abely Award for Leading Women and Children to Safety from Sanctuary for Families, the Medal of Achievement from the Fordham Law Alumni Association, and the J. Edward Lumbard Award from the U.S. Attorney's Office for the Southern District of New York.
Immigration Article of the Day: The Rise of Speed Deportation and the Role of Discretion by Shoba Sivaprasad Wadhia
The Rise of Speed Deportation and the Role of Discretion by Shoba Sivaprasad Wadhia, Penn State Law August 25, 2014 Columbia Journal of Race and Law, Forthcoming Penn State Law Research Paper No. 31-2014
Abstract: In 2013, the majority of people deported never saw a courtroom or immigration judge, and instead were quickly removed by the Department of Homeland Security. The policy goals of speed deportation are economic because government resources like a trial attorney, immigration judge and a fundamentally fair hearing are saved. Higher deportation numbers may also benefit the image the government seeks to portray to policymakers who support amplified immigration enforcement. However, the human consequences of speed deportation are significant and can result in the ejection of people who qualify for relief before an immigration judge or otherwise present strong equities like family ties, long term residence and steady employment in the United States. Moreover, the risk that the government may wrongly classify a person as a candidate for speed deportation is more than a remote possibility. This Article examines deportations resulting from the expedited removal, administrative removal and reinstatement of removal orders programs and the extent to which the government has discretion to give individuals who present compelling equities, including eligibility for relief, a more complete court proceeding before an immigration judge. This Article also explores the possibility that an agency’s decision to place a person in speed deportation instead of a full court proceeding is “arbitrary and capricious” under administrative law.
Tuesday, September 23, 2014
Today, Detention Watch Network released the findings of their latest “Expose and Close” report on the Artesia Family Residential Center - documenting the conditions facing families currently detained in Artesia, New Mexico. The report outlines hows conditions at the Artesia Family Residential Center, specifically the barriers to legal access, broken asylum process, interference with telephone communications, deficient medical and mental health care, lack of childcare and educational services, and the inadequate conditions for good health and wellness create dangerous conditions that undermine the wellbeing of women and children under U.S. custody. Moreover, the report documents the dramatic rise in the use of family detention by U.S. officials - skyrocketing more than 1200% in the last 3 months alone.
Forbes has an interesting new article: The Myth Of The 'Anchor Baby.'
It discusses how some (privileged) women travel to the United States late in pregnancy with the specific goal of attaining U.S. citizenship for their offspring. Forbes cites a 2010 WaPo article on point. I'll note there was also a 2013 segment of the now-cancelled Brian Williams vehicle Rock Center on this topic, which called the phenomenon "Birth Tourism."
The Forbes article notes (what is obvious to most of our dear readers) that a minor child's U.S. citzenship won't confer lawful status on their parents nor prevent their deportation. And that the U.S. citizen child cannot sponsor their parents' immigration until they reach age of 21.
The article concludes:
"As for education in the meantime, unless the child can show legal guardianship or custody by a U.S. or Canadian citizen that would give them permission to reside in North America, they will not be able to study here, either."
It's that last bit that gives me some pause. A U.S. citizen does not need "permission" to reside in North America. Certainly, parents could send a USC child to live with family or friends in the United States. Or even pay an individual in the United States to care for their child. And, for college students, they could live in the United States entirely on their own.
I do appreciate the writer's efforts to downplay concerns over "anchor babies." After all, as Professor Olivas brought to my attention yesterday, we live in a world where a U.S. Congressman (Gohmert for the record) has taken the position that we should not merely worry about "anchor babies" but "terror babies." As the Fifth Circuit summarized in footnote 1 of a recent opinion:
Rep. Gohmert’s statement on the floor of the House of Representatives about “terror babies,” in which Rep. Gohmert claimed that a retired FBI agent had told him the FBI was investigating overseas terrorism cells planning to place pregnant women in the United States. According to Gohmert, the women were to have a baby or babies and return back overseas to raise the children, now U.S. citizens, to become future terrorists, so the children could someday return to “destroy our way of life.” 156 Cong. Rec. H4867 (daily ed. June 24, 2010) (statement of Rep. Gohmert).
Le sigh. For the record, Gohmert's statements are entirely consistent with Harlan Coben's novel Long Lost.
Critical Review of International Social and Political Philosophy has published a Special Issue: New Challenges in Immigration Theory. The issue includes
New challenges in immigration theory: an overview Crispino E.G. Akakpo & Patti T. Lenard
Beyond reason: the philosophy and politics of immigration Phillip Cole
The right to exclude Michael Blake
An overview of the ethics of immigration Joseph H. Carens
Reframing the brain drain Alex Sager
Temporary migration projects and voting rights Valeria Ottonelli & Tiziana Torresi
Detaining immigrants and asylum seekers: a normative introduction Stephanie J. Silverman
Climate change refugees Matthew Lister
Reimagining the Midwest: Immigration Initiatives and the Capacity of Local Leadership September 23, 2014 Washington D.C.– Despite the absence of federal action on immigration, local government initiatives across the Midwest are encouraging new growth, building community and harnessing the contributions of immigrants, according to a new report released today by The Chicago Council on Global Affairs and the American Immigration Council. The report comes at the close of National Welcoming Week (September 13-21), a series of events across the country that highlight contributions of immigrants to American communities and brings together immigrants and native-born community members. “Reimagining the Midwest: Immigration Initiatives and the Capacity of Local Leadership,” is the first report of its kind to focus exclusively on the Midwest region and represents an extensive review of the vast array of immigrant integration initiatives at the state, municipal, metropolitan, and civic levels. The report highlights initiatives that are fostering immigrant entrepreneurs, passing integration ordinances, promoting civic engagement, evaluating economic impact, providing education resources, and celebrating cultural diversity, among other efforts. It urges leaders to:
1. Think creatively about opportunities for local action despite federal inaction around immigration reform.
2. Leverage community institutions and the private sector to maximize resources.
3. Foster inclusive metro-wide and regional collaboration, recognizing that communities and neighborhoods are interconnected.
John Liu served as the 43rd comptroller of New York City from 2010 to 2013, becoming the first Asian-American to hold city-wide office in New York. Taking office amid a severe economic crisis, he facilitated economic growth and job creation with the acceleration of urban capital projects. He also developed the online application CheckbookNYC.com, which provided new transparency in government spending. Prior to that, Liu represented Flushing and northeast Queens in the City Council.
From the Bookshelves: International Migration, U.S. Immigration Law and Civil Society: From the Colonial Era to the 113th Congress Edited by Leonir Mario Chiarello and Donald Kerwin
The Scalabrini International Migration Network (SIMN) and the Center for Migration Studies of New York (CMS) have released a new book on US immigration flows, trends, law and civil society titled International Migration, U.S. Immigration Law and Civil Society: From the Colonial Era to the 113th Congress. It is the tenth in a series on international migration to and within the Americas. Earlier volumes have covered immigration policy and civil society in the Western Hemisphere and in Argentina, Bolivia, Brazil, Chile, Colombia, Mexico, Paraguay and Peru. The series draws on contributions from leading scholars and practitioners in the field. Joseph Chamie, the former director of the United Nations Population Division and former editor of the International Migration Review, provides a magisterial overview of migration flows to and within the Americas over the last 525 years, with particular focus on the United States and the territory that became the United States. He also highlights several themes that weave through this long history. Charles Wheeler, a senior attorney and director of training and legal support for the Catholic Legal Immigration Network, Inc. (CLINIC), provides a concise and timely history of US immigration law and policy, starting in the colonial era and leading to the current impasse on immigration reform. Sara Campos, a freelance writer and the former director of the Asylum Program for the Lawyers Committee for Civil Rights in San Francisco, writes a groundbreaking chapter on the growing role of civil society in the US immigrant communities and in the US immigration debate. All three chapters, as well as an introduction by Donald Kerwin, speak very directly to the US immigration debate.
Click here for a review of the book.
Immigration Article of the Day: Transnational Migration, Globalization, and Governance: Reflections on the Central America – United States Immigration Crisis by Chantal Thomas
Transnational Migration, Globalization, and Governance: Reflections on the Central America – United States Immigration Crisis by Chantal Thomas, Cornell Law School September 3, 2014 Handbook on International Legal Theory (Oxford U. Press, Forthcoming) Cornell Legal Studies Research Paper No. 14-26
Abstract: The Central America - U.S. border crisis has stoked the fires of a roaring debate on immigration and immigration reform. At a time when real economic growth in the global North continues to stagnate, and income inequality continues to intensify, conditions favor a certain kind of xenophobia that scapegoats immigrants for socioeconomic ills. Under such understandings, immigration influxes are portrayed as exogenous phenomena, but, in fact, migration from the global South to the global North often operates in a kind of boomerang effect. Current asylum and immigration patterns often reflect reactions to previous political and economic interventions by the global North in the home territories of the migrant populations. This article considers these background dynamics in relation to the immigration and asylum surge from Central America, and reflects on the interrelationship and utility of existing paradigms of migration law. A central finding criticizes the narrow understanding of asylum as established by prevailing legal norms.
Monday, September 22, 2014
FROM THE BOOKSHELVES Sounds of Belonging: U.S. Spanish-language Radio and Public Advocacy by Dolores Ines Casillas
The last two decades have produced continued Latino population growth, and marked shifts in both communications and immigration policy. Since the 1990s, Spanish- language radio has dethroned English-language radio stations in major cities across the United States, taking over the number one spot in Los Angeles, Houston, Miami, and New York City. Investigating the cultural and political history of U.S. Spanish-language broadcasts throughout the twentieth century, Sounds of Belonging reveals how these changes have helped Spanish-language radio secure its dominance in the major U.S. radio markets. Bringing together theories on the immigration experience with sound and radio studies, Dolores Inés Casillas documents how Latinos form listening relationships with Spanish-language radio programming. Using a vast array of sources, from print culture and industry journals to sound archives of radio programming, she reflects on institutional growth, the evolution of programming genres, and reception by the radio industry and listeners to map the trajectory of Spanish-language radio, from its grassroots origins to the current corporate-sponsored business it has become. Casillas focuses on Latinos’ use of Spanish-language radio to help navigate their immigrant experiences with U.S. institutions, for example in broadcasting discussions about immigration policies while providing anonymity for a legally vulnerable listenership. Sounds of Belonging proposes that debates of citizenship are not always formal personal appeals but a collective experience heard loudly through broadcast radio.
Toledo worked for five years as an antique-clothing restorer at the Costume Institute at the Metropolitan Museum of Art before she made her first collection in 1985, sewing each piece by hand. Working closely with her husband, Ruben, an illustrator, her inventive, architectural designs were featured in Cosmopolitan magazine and sold in exclusive fashion stores such as Bergdorf’s and Barneys. In 2008, she won the Couture Council Award for Artistry of Fashion from the Museum at FIT. A year later, Michelle Obama wore one of her designs on Inauguration Day, bringing Toledo to mainstream attention.
Immigration Article of the Day: A Framework for Judicial Review and Remand in Immigration Law by Collin D Schueler
A Framework for Judicial Review and Remand in Immigration Law by Collin D Schueler, University of Kentucky College of Law, 2015 Denver University Law Review, Forthcoming
Abstract: This Article breaks new ground at the intersection of administrative law and immigration law. One of the more important questions in both fields is whether a reviewing court should resolve a legal issue in the first instance or remand that issue to the agency. This Article advances the novel claim that courts should use the modern framework for judicial review of agency statutory interpretations to inform their resolution of this remand question. Then, using this framework, the Article identifies when remand is and is not appropriate in immigration cases. This critical analysis, which urges a departure from conventional academic wisdom, has significant implications for the larger theoretical debate over formalism and functionalism in administrative law.
Andrea A. Saenz, Clinical Teaching Fellow, Immigration Justice Clinic, Benjamin N. Cardozo School of Law
I read last week’s WSJ Law Blog post on Professor Brian Soucek’s criticism of Second Circuit asylum opinions with interest, and a little dismay. Fair warning: I served for a year as a staff attorney at the Second Circuit, producing the types of orders Soucek says are infected with misleading law and rubber-stamped by judges. In fact, proposed summary orders are accompanied by in-depth bench memos and often revised heavily by judges and law clerks. But my concern isn’t personal as much as legal, as someone who now practices and teaches law in New York. In his critiquing small word choices in a small subset of unpublished orders, Soucek misses the broader picture of how the Second Circuit actually treats the claims of asylum seekers, which is thoughtfully and with care.
Soucek’s 2012 essay criticized select wording in unpublished court orders that referred to whether certain asylum applicants were persecuted for being members of a “particular social group.” He worried that the court’s use of words like “exhibit,” recognize,” or “identify” suggested the court thought persecutors had to be able to physically see the characteristics that made you part of the group, or else you weren’t a member.
But the evidence strongly suggests the court has never thought that. While I am all for accuracy, and hardly think the Second Circuit is infallible, these minor phrases don’t seem to be affecting the ultimate asylum decisions. Soucek himself acknowledged that the court had never “rejected an asylum claim solely because an applicant did not look a certain way.” It seems like this should matter a lot. (Although it was a Convention Against Torture case and not an asylum case, I can’t help but think of Ali v. Mukasey, in which the court read a judge the riot act for his speculative comments about a gay applicant, including assuming that no one would know he was gay if he were not seen with a boyfriend.)
More broadly, the Second Circuit’s recent asylum case law has been quite open-minded and fair. The Court has ordered the Board of Immigration Appeals to stop avoiding the issue of whether the government can bar from asylum people who were forced at gunpoint to give food or money to terrorists, on the theory that they “supported” terrorism. It has rebuked judges who applied stringent and made-up legal or evidentiary standards to asylum seekers, and found that potential victims of sex trafficking and witnesses to war crimes may well be members of “particular social groups” eligible for asylum. In short, the court is seriously engaging with asylum law in a way Soucek’s hyper-focused critique does not acknowledge.
Soucek makes much hay of the fact that three unpublished orders issued between February and June use the “visibility” language that he finds problematic, states that these statements of law are “flat wrong now,” and ominously predicts to the WSJ that asylum applicants are more likely than not to have the wrong standard applied to their cases.
These criticisms are quite misleading. Presumably Soucek is referencing new precedent the BIA issued in February, making a largely cosmetic transition from a “social visibility” standard to one named “social distinction.”  While it might have been nice for the Second Circuit to acknowledge this hot-off-the-presses update in those three orders, it was not “flat wrong” not to do so, as all three cases had been fully briefed before the new cases came out, and the Second Circuit’s job is to review the BIA, rather than instantly adopting its new precedents. Most importantly, in August the Second Circuit did in fact issue a precedent, Paloka v. Holder, discussing the new BIA cases in detail, and the court’s most recent summary orders explicitly cite the clarified “social distinction” standard. So no, asylum seekers in the Second Circuit are not being judged under the wrong law.
It is certainly true that the Second Circuit, like every other legal office I have worked at, has a database of prior work product that employees draw from, and it is true that lawyers who work from templates and examples should regularly update their resources and keep their legal writing fresh and accurate. That is good advice for all of us. However, when it comes to the evolution of asylum law, it appears that is exactly what the Second Circuit has done.
 Ali v. Mukasey, 529 F.3d 478 (2d Cir. 2008).
 Ay v. Holder, 743 F.3d 317 (2d Cir. 2014).
 Acharya v. Holder, --- F.3d ---, 2014 WL 3821132 (2d Cir. Aug. 5, 2014).
 Indrajaja v. Holder, 737 F.3d 212 (2d Cir. 2013).
 Paloka v. Holder, --- F.3d ---, 2014 WL 3865992 (2d Cir. Aug. 7, 2014).
 Gashi v. Holder, 702 F.3d 130 (2d Cir. 2012).
 Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, (BIA 2014).
 Paloka, 2014 WL 3865992 at *4-7.
 See Kuzmenko v. Holder, --- F.App’x ---, 2014 WL 4627631 (2d Cir. Sept. 17, 2014); Gonzales-Reyes v. Holder, --- F.App’x ---, 2014 WL 2853569 (2d Cir. June 24, 2014).
Sunday, September 21, 2014
Two New York-based museums are displaying exhibits that feature Chinese Americans, including their struggles with racially exclusionary immigration laws.
"Chinese American: Exclusion/Inclusion chronicles the complex history of the Chinese in America, from the early days of the China trade to the history of Chinese immigration and the life of Chinese Americans. The title encapsulates the challenges of immigration, citizenship, and belonging that shaped both the Chinese American experience and the development of America as a nation. Americans desired trade with China even before independence, but in 1882 the nation’s borders shut for the first time to bar most Chinese. Under the Chinese Exclusion Act, all Chinese entering or re-entering the country had to prove their right to do so. This not only affected many aspects of life for American Chinese, but also significantly influenced US immigration policy. The act was repealed sixty years later during World War II, but immigration restrictions remained severe until reform in 1965."
Additional information about the exhibit, which will be available between September 26, 2014 and April 19, 2015, may be found here.
"The Museum of Chinese in America (MOCA) will present its groundbreaking exhibition examining Chinese American identity, Waves of Identity: 35 Years of Archiving. The title of the exhibit was inspired by a Chinese proverb, “Each wave of the Yangtze River pushes at the wave ahead.” As a metaphor for Chinese American history, the waves represent successive generations of immigrants unearthing the histories of those that came before them, and in the process of discovery, addressing pertinent issues of identity, memory and history."
Additional information about this exhibit may be found here.
Feminists at the Border by Jennifer M. Chacón, University of California, Irvine School of Law; University of Oxford - Border Criminologies August 27, 2014 Denver University Law Review, Vol. 91, No. 1, 2013, pp. 85-108 UC Irvine School of Law Research Paper No. 2014-44
Abstract: This essay was written in honor of Ann Scales, for her memorial symposium. Ann Scales was a critic of militarism. She challenged her readers to engage in "a radical critique of all of the excuses for and covers for the use of force — that is, a radical critique of militarism — in whatever context it appears." She also cautioned that this critique is perhaps most important in contexts where the influence of militarism is less obvious. This Essay takes up Scales's challenge to call out and critique militarism, and to do so in a context where the influence of militarism may be less obvious, by focusing on immigration law and policy. Part I of this Essay summarizes Scales's critique of militarism. Part II uses Scales's analysis of Nguyen v. Immigration and Naturalization Service, which involved a failed sex-based equal protection challenge to a citizenship law, as a starting point for tracing out the broad influence of militarism on immigration law doctrines. Part III explores the obvious ways in which militarized immigration policies legitimate state-sanctioned violence, using the Sixth Circuit's 2013 decision in the case of Villegas v. Metro Government of Nashville as an illustrative example. Part IV argues the less obvious point that this kind of violent enforcement is used in the service of an immigration regime that is structured to reinforce gender hierarchies more broadly.
A few weeks ago, the Los Angeles Times reported on a new visa development. "Fueled by demand from wealthy Chinese nationals, an immigration program that exchanges visas for large investments in U.S. businesses has run out of its allotment of visas for the first time in its 24-year history. A State Department official said this week that no more EB-5 visas will be issued until the beginning of the 2015 fiscal year in October and that procedural changes planned for next year will bring greater delays in obtaining visas. Some people involved in the program say that the time it takes to get new visas could increase from a few months to up to two to three years. EB-5 investor visas reach record high EB-5 awards visas to immigrants who invest $500,000 to $1 million in a U.S. business. Applicants who can prove that their investment has created at least 10 jobs get permanent green cards."
Saturday, September 20, 2014
The Family That Is Counted Together Stays Together: How To Eliminate Immigrant Visa Backlogs By Gary Endelman and Cyrus D. Mehta offers a quick fix that President Obama could implement toeliminate immigrant visa backlogs that require prospective immigrants to wait many years to come lawfully to the United States:
"There is nothing in the Immigration and Nationality Act that requires each derivative family member to be counted on an individual basis against the worldwide and country caps. That being so, President Obama tomorrow can issue an executive order providing that this long-established practice be stopped. That single stroke of the pen would revolutionize United States immigration policy and, at long last, restore balance and fairness to a dysfunctional immigration system badly in need of both. If all members of a family are counted together as one unit, rather than as separate and distinct individuals, systemic visa retrogression will quickly become a thing of the past."
Asylum Access Ecuador won a landmark victory last week when Ecuador’s Constitutional Court struck down key provisions of a restrictive refugee law.
Since 2012, Decree 1182 has imposed serious barriers for refugees seeking safety in Ecuador, including a requirement that refugees file paperwork within 15 days of arrival – often just days after receiving a death threat or seeing a family member murdered. The decree also required refugees to prove they were individually targeted for persecution, rather than fleeing generalized violence.
Most refugees were unaware of the 15-day filing requirement, and the government provided no notice at the border. Refugees who failed to file on time were denied legal status, leaving them unable to work and at risk of deportation back to sometimes life-threatening danger.
With the September 15 decision, refugees now have three months to file petitions for legal status, and 15 to 30 days to appeal a denial (up from 3 to 5 days under Decree 1182). Friday’s decision also extends protection to refugees fleeing generalized violence, reinstating a legal definition set forth in the Cartagena Declaration, a regional human rights document.