Friday, July 18, 2014
From the Bookshelves: Refugee Protection and the Role of Law Conflicting Identities Edited by Susan Kneebone, Dallal Stevens, Loretta Baldassar
Refugee Protection and the Role of Law Conflicting Identities Edited by Susan Kneebone, Dallal Stevens, Loretta Baldassar Routledge – 2015 – 324 pages
Sixty years on from the signing of the Refugee Convention, forced migration and refugee movements continue to raise global concerns for hosting states and regions, for countries of origin, for humanitarian organisations on the ground, and, of course, for the refugee. This edited volume is framed around two themes which go to the core of contemporary ‘refugeehood’: protection and identity. It analyses how the issue of refugee identity is shaped by and responds to the legal regime of refugee protection in contemporary times. The book investigates the premise that there is a narrowing of protection space in many countries and many highly visible incidentsof refoulement. It argues that ‘Protection’, which is a core focus of the Refugee Convention, appears to be under threat, as there are many gaps and inconsistencies in practice.
Contributors to the volume, who include Erika Feller, Elspeth Guild, Hélène Lambert and Roger Zetter, look at the relevant issues from the perspective of a number of different disciplines including law, politics, sociology, and anthropology. The chapters examine the link between identity and protection as a basis for understanding how the Refugee Convention has been and is being applied in policy and practice. The situation in a number of jurisdictions and regions in Europe, North America, South East Asia, Africa and the Middle East is explored in order to ask the question does jurisprudence under the Refugee Convention need better coordination and how successful is oversight of the Convention?
Abstract: The U.S. asylum system is noble, but flawed. Scholars have long recognized that asylum is a “scarce” political resource, but U.S. law persists in distributing access to asylum based on an asylum seeker’s ability to circumvent migration controls rather than the strength of the asylum seeker’s claim for protection. To apply for asylum, an asylum seeker must either arrange to be smuggled into the U.S., or lie to the consulate while abroad to obtain a nonimmigrant visa. Nonimmigrant visa requirements effectively filter the pool of asylum applicants according to wealth, educational attainment, and intent not to remain in the U.S. indefinitely -- criteria completely unrelated to or at odds with the purposes of refugee law. The system as currently designed, therefore, selects asylum seekers based entirely on their ability to satisfy irrelevant criteria, and without regard to their relative need for protection from persecution. Such a system fails to maximize the humanitarian benefits of our scarce asylum resources.
To better protect individuals facing serious persecution, this Article contends, Congress should consider reforming the immigration laws to provide for an asylum visa to be made available to foreign nationals. U.S. consulates abroad, under proper circumstances, would issue this visa to foreign nationals who demonstrate a credible fear of persecution on a ground enumerated in the United Nations Convention Relating to the Status of Refugees. Applicants would then lawfully enter the U.S. and apply for asylum. Successful applicants would remain, and unsuccessful applicants would face removal. Drawing on the extant literature on so-called “protected entry procedures” that once existed in Europe, this Article considers the costs and benefits of the practice of issuing asylum visas. This Article concludes that, despite serious and uncertain costs, and the impracticability of issuing asylum visas in some countries, this practice would likely create substantial benefits. In particular, it would likely decrease asylum seekers’ reliance on human smugglers, clear a path to protection for bona fide asylum seekers, and increase the accuracy of information possessed by both asylum seekers and the U.S. government. Thus, the asylum visa would assist asylum seekers in making better-informed decisions ex ante and help to achieve a better allocation of asylum resources ex post. For these reasons, the creation of an asylum visa and the potential details of such a proposal merit further study.
Thursday, July 17, 2014
Maria Hinojosa is an award-winning broadcast journalist. She has spent her career bringing the stories of marginalized people and issues to light. She is an anchor for PBS’ Need to Know series and her own talk show, Maria Hinojosa: One-on-One, as well as executive producer and anchor of the NPR show Latino USA. In 2010, she launched The Futuro Media Group, a nonprofit production company that aims to give voice to social issues in multicultural America. Among her many honors she has won four Emmies and the 2012 John Chancellor Award for Excellence in Journalism.
Abstract: This Article offers a systematic examination of how determinations of parentage operate in immigration and citizenship law. As a descriptive matter, we argue that immigration and citizenship law generally use more stringent standards for determining parentage than state family law, despite their common origins. Rather than simply noting that the differences exist, we take an institutional approach to understanding why. We argue that immigration and citizenship law use different parentage tests than family law not because lawmakers have failed to properly incorporate family law principles, but because lawmakers’ interests are not the same in diverse contexts. State family law’s primary interests are in privatizing the dependency of children and, somewhat secondarily, in children’s physical and psychological well-being. Immigration and citizenship law, in contrast, implicate the federal government’s interest in achieving optimal numbers of immigrants and citizens. In addition, because the benefits of lawful immigrant status and U.S. citizenship are so extensive, an important state interest in determining parentage in the immigration and citizenship context is the ferreting out and prevention of fraud. Because of these differences, variations in institutional actors’ attitudes toward various kinds of parentage may be inevitable, or, at the very least, understandable. Put differently, since the values at stake in immigration and citizenship law differ so greatly from the values of family law, it should be no surprise that the "family values" espoused by immigration and citizenship law are very different from those we are accustomed to seeing in family court.
We do not, however, believe that these institutional differences mean that current immigration and citizenship laws are optimal. We argue, rather, that a clear understanding of immigration and citizenship laws’ "family values" shows that these laws’ approaches to parentage fail to adequately account for the crucial federal interest of protecting its citizens’ and residents’ right to family reunification. Current federal policy privileges interests in limiting membership and in fraud prevention at the expense of allowing U.S. citizens and lawful permanent residents to exercise their own liberty interests in preserving parent-child relationships. We argue that the interests of individual citizens are also national interests that the federal government should embrace as its own, and that recognition of intentional and functional parentage deserves a more prominent place in the nation’s definition of parentage in the immigration and citizenship context. The reason for this, however, is not that federal immigration and citizenship law should defer to state family law norms. Indeed, the difference in interests may result in different rules, which may be more stringent — but also might be more expansive — than current family law norms.
Wednesday, July 16, 2014
This Congressional Research Service report on "sanctuary policies" is summarized below:
While the power to prescribe rules as to which aliens may enter the United States and which aliens may be removed resides solely with the federal government, the impact of alien migration—whether lawful or unlawful—is arguably felt most directly in the communities where aliens settle. State and local responses to unlawfully present aliens within their jurisdictions have varied considerably, particularly as to the role that state and local police should play in enforcing federal immigration law. Some states, cities, and other municipalities have sought to play an active role in immigration enforcement efforts. However, others have been unwilling to assist the federal government in enforcing measures that distinguish between residents with legal immigration status and those who lack authorization under federal law to be present in the United States. In some circumstances, these jurisdictions have actively opposed federal immigration authorities’ efforts to identity and remove certain unlawfully present aliens within their jurisdictions.
Although state and local restrictions on cooperation with federal immigration enforcement efforts have existed for decades, there has reportedly been an upswing in the adoption of these measures in recent years. Moreover, the nature of these restrictions has evolved over time, particularly in response to the development of new federal immigration enforcement initiatives like Secure Communities, which enable federal authorities to more easily identify removable aliens in state or local custody. Entities that have adopted such policies are sometimes referred to as “sanctuary” jurisdictions, though there is not necessarily a consensus as to the meaning of this term or its application to a particular state or locality.
This report discusses legal issues related to state and local measures that limit law enforcement cooperation with federal immigration authorities. The report begins by providing a brief overview of the constitutional principles informing the relationship between federal immigration authorities and state and local jurisdictions, including the federal government’s power to preempt state and local activities under the Supremacy Clause, and the Tenth Amendment’s proscription against Congress directly “commandeering” the states to administer a federally enacted regulatory scheme.
The report then discusses various types of measures adopted or considered by states and localities to limit their participation in federal immigration enforcement efforts, including (1) limiting police investigations into the immigration status of persons with whom they come in contact; (2) declining to honor federal immigration authorities’ requests that certain aliens be held until those authorities may assume custody; (3) shielding certain unlawfully present aliens from detection by federal immigration authorities; and (4) amending or applying state criminal laws so as to reduce or eliminate the immigration consequences that might result from an alien’s criminal conviction.
The recent surge of tens of thousands of unaccompanied children attempting to enter the country has touched off a heated debate. Some ask whether having Immigration Judges decide the fate of these children only postpones their inevitable deportation since it is alleged that few have any valid claim to remain in the United States. Others hotly dispute this contention. This special report presents information derived from current and detailed case-by-case Immigration Court records tracing decisions on removal orders sought by the Department of Homeland Security (DHS) concerning unaccompanied children who have been apprehended by the agency.
The data, current through June 30, 2014, was obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University from the Executive Office for Immigration Review (EOIR) under the Freedom of Information Act. The data trace the status of over 100,000 such cases. The information includes every instance over the last decade flagged as a juvenile case currently recorded in EOIR files. In each of these cases, the Department of Homeland Security instituted the action requesting that the court issue an order to deport these children. Because the DHS has authority to screen and then immediately deport unaccompanied Mexican children without any formal hearing, only a small proportion of children from Mexico are referred to the Immigration Court by the DHS. For this reason unaccompanied children who are immediately deported by DHS are not part of the court data examined here.
Kendall Breitman on Politico.com reports that, while some mayors are working to make sure their cities are not the next drop-off spot for the recent influx of undocumented children, mayors from Tampa and Los Angeles are arguing that welcoming immigration would have benefits for cities across the country.
Watch this 12 year old Honduran child migrant tell of her experiences.
Colorlines spoke with Mayeli Hernández. Along with her 8-year-old sister, she crossed into the United States last year when she was just 11 years old. Here, she talks about what her experience in the hielera was like.
Dascha "Dash" Polanco is an actress best known for playing Dayanara Diaz on Orange Is the New Black. Born in the Dominican Republic, she moved to the United States at a young age. She was raised in Brooklyn and Miami. Polanco aspired to be an actress from an early age but "always doubted auditioning because of [her] weight", and so she completed a bachelor's degree in psychology at Hunter College. After college, she was working as a hospital administrator while studying nursing, when her fiancé encouraged her to pursue acting and paid for her registration with an acting studio as a gift.
Polanco's first acting credits were minor parts on the television series Unforgettable and NYC 22. In 2012, she was cast in the Netflix series Orange Is the New Black as Dayanara "Daya" Diaz, an inmate in a women's prison; it was her first full-time acting job. Polanco next appeared in the 2013 independent film Gimme Shelter. In June 2014, it was announced that she had been promoted from a recurring role to a series regular for the show's third season.
Immigration Article of the Day: Haiti, the Dominican Republic, and Race-Based Statelessness in the Americas by Jillian Nicole Blake
Haiti, the Dominican Republic, and Race-Based Statelessness in the Americas by Jillian Nicole Blake, June 14, 2014 Georgetown Journal of Law and Modern Critical Race Perspectives, Forthcoming
Abstract: This Article examines the crisis of “race-based statelessness” in the Dominican Republic, which denies citizenship to hundreds of thousands of people, based on racial and ethnic prejudice. In September 2013, the Dominican Constitutional Court upheld a constitutional amendment to revoke the citizenship rights of persons born in Dominican territory to undocumented immigrants, who are primarily black and of Haitian origin. This Article describes the illegality of the Dominican constitutional amendment under international, and particularly, inter-American law. The denial of “jus soli” citizenship, citizenship based on a person’s birth territory, is a violation of American regional customary international law. Furthermore, systematic racial discrimination and denial of nationality violates international and inter-American treaty and customary law. The final section of this Article argues for a strong international and inter-American response to the crisis of statelessness in the Dominican Republic. States should be open to granting asylum to persons fleeing racial persecution in the Dominican Republic. The Organization of American States and the Caribbean Community should continue to put political pressure on the Dominican Republic to restore citizenship rights to its population, and economic pressure should be applied to the Dominican Republic through the United States-Dominican Republic Central America Free Trade Agreement.
Tuesday, July 15, 2014
USCIS Publishes Report on Characteristics of Individuals Requesting and Approved for Deferred Action for Childhood Arrivals
Today, U.S. Citizenship and Immigration Services (USCIS) published Characteristics of Individuals Requesting and Approved for Deferred Action for Childhood Arrivals (DACA). This is USCIS’ first report about the demographic characteristics of people who requested DACA from August 2012 to September 2013 and were approved by January 2014. The report presents data based on the following categories:
• Age groups
• Country of birth
• Marital status
• Geographic location at the time of filing (state and metro/micropolitan statistical areas)
USCIS will continue publishing quarterly reports about the cumulative number of DACA requests received, accepted and approved. Those reports are available at www.uscis.gov/data.
A group of professors and researchers with experience teaching and practicing in the areas of immigration, human rights, and international law, primarily at U.S. universities, colleges, and law schools have sent a letter to President Obama offering counsel on the proper response to the refugee emergency involving unaccompanied children and families with children from Central America and Mexico:
"While we recognize the challenges are complex, we focus our comments on two administration responses that raise great concern: first, unspecified calls by the administration for changes to the Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”); and second, procedural and operational responses intended to speed up the removal process that weaken legal protections for unaccompanied children and families with children. We also wish to remind you of the powers you have under section 207 of the Immigration and Nationality Act (“INA”) to declare refugee emergencies and to grant protection through that mechanism. It has been the historic policy of the United States to respond to the urgent needs of persons, including children, subject to persecution in their homelands.
The Courts, Congress, and the Executive branch have long recognized that children must be treated differently under the immigration laws due to their particular vulnerability and lesser culpability.2 We need to maintain these obligations as we face the current challenges." (footnote omitted).
For the full text of the letter, see Download ProfessorsLetterFairnessforCentralAmericanChildren.
Religious and Ethical Perspectives on Global Migration by Elizabeth W. Collier (Editor) and Charles R. Strain (Editor). Contributors include Marie T. Friedmann Marquardt, Gemma Tulud Cruz, Ogenga Otunnu, Marianne Heimbach-Steins, Marco Tavanti, Moses Pava, Azam Nizamuddin, Frida Kerner Furman, Rev. John M. Fife, Kim Bobo, Sioban Albiol, Rev. Craig B. Mousin.
Religious and Ethical Perspectives on Global Migration examines the complicated social ethics of migration in today’s world. Editors Elizabeth W. Collier and Charles R. Strain bring the perspectives of an international group of scholars toward a theory of justice and ethical understanding for the nearly two hundred million migrants who have left their homes seeking asylum from political persecution, greater freedom and safety, economic opportunity, or reunion with family members. Migrants move out of fear, desperation, hope, love for their families, or a myriad of other complex motivations. Faced with both the needs and flows of people and the walls that impede them, what actions ought we, both individually and collectively, take? What is the moral responsibility of those of us, in particular, who reside comfortably in our native lands? There is no univocal response to these questions. Instead multiple perspectives on migration must be examined.
This book begins by looking at different geographic regions around the world and highlighting particular issues within each. Finding that religious traditions represent the strongest countervailing sources of values to the homogenizing tendencies of economic globalization, the study then offers a plurality of religious perspectives The final chapters examine the salient issues and the proposed solutions that have emerged specifically within the U.S. context. These studies range from militarization of the U.S. border with Mexico to the impact of migrants on native-born low-skilled workers.
Encompassing a wide range of cultural and scholarly voices, Religious and Ethical Perspectives on Global Migration provides insight for ethics, moral philosophy, social and political philosophy, religious studies, social justice, globalization, and identity formation.
BREAKING NEWS REPORT: America's Most Famous Undocumented Immigrant Has Been Taken Into Custody At Texas Airport
Business Insider repors this morning that activists who were working with immigration reform advocate Jose Antonio Vargas near the U.S.-Mexico border in Texas released a statement Tuesday saying he was arrested while attempting to pass through security at McAllen-Miller International Airport. For the CNN report, click here.
Washington, D.C. —
Congressman Henry Cuellar (D-TX28), member of the House Appropriations Subcommittee on Homeland Security, and U.S. Sen. John Cornyn, R-Texas, the Ranking Member of the Senate Judiciary Subcommittee on Immigration, Refugees, and Border Security, have announced that they will introduce the Helping Unaccompanied Minors and Alleviating National Emergency (HUMANE) Act, legislation designed to reform current law and solve the ongoing humanitarian crisis on our Southern Border.
“The border region in Texas has been overwhelmed over the past few months by a deluge of undocumented immigrants from Central America,” said Congressman Cuellar. “Today’s legislation strengthens current law protecting unaccompanied children and responds to the crisis while supporting the men and women of Border Patrol. I would like to thank Senator John Cornyn for partnering with me on this legislation and I ask my colleagues in the House and Senate to act quickly on this bill.”
“Today Congressman Cuellar and I are proposing a solution to the current crisis on our border,” said Sen. Cornyn. “Our proposal would improve the Trafficking Victims Protection Act of 2008, treating all unaccompanied minors equally and ensuring Due Process under the law in a timely, fair manner.”
The HUMANE Act would:
• Improve the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA) of 2008—treating all unaccompanied migrant children crossing our border with equality under the law, and allowing for voluntary reunification with family, whether they are from Mexico, Central America, or any other country.
• Keep current protections for safe repatriation.
• Allow unaccompanied migrant children who have a claim to remain legally in the United States to make this claim in court before an immigration judge within 7 days of the completion of Health and Human Services screening under the TVPRA of 2008. It authorizes up to 40 new immigration judges for this purpose, and keeps current law in place requiring HHS to make all efforts to secure pro-bono legal counsel for the child.
• Require immigration judges to make a determination as to whether an unaccompanied migrant child is eligible to remain in the United States within 72 hours of making their claim. Children who succeed in their claim will be allowed to remain in the United States in the custody of a sponsor while they pursue their legal remedies. Children who do not successfully make such a claim will be reunited with family in their home country.
• Require the Secretary of Health and Human Services to provide unaccompanied migrant children with protective shelter while they are awaiting their initial hearing in court before a judge.
• Allow access to these expedited court hearings for unaccompanied migrant children who have already been released to sponsors with notices to appear in immigration court.
• Require the Secretary of Health and Human Services to conduct FBI fingerprint background checks on any person taking custody of an unaccompanied alien child. Prohibits the Secretary from releasing children to persons convicted of sex offenses and human trafficking.
• Require a plan and provide for additional resources necessary for operational control of our southern border.
Major League Baseball Oakland A's slugger Yoenis Céspedes won the 2014 Gillette Home Run Derby last night at Target Field in Minnesota. He had 30 home runs on the evening, defeating Cincinnati Reds third baseman Todd Frazier in the final round.
Born in Cuba, Céspedes also won the 2013 Home Run Derby last year in New York and becomes the first player to win back-to-back Home Run Derbys since Ken Griffey, Jr. in 1999.