Tuesday, August 26, 2014
Derivative Citizenship: What's Marriage, Citizenship, Sex, Sexual Orientation, Race and Class Got to Do with It? by M. Isabel Medina, Loyola University New Orleans College of Law March 23, 2013 28 Georgetown Immigration Law Journal (Spring 2014 Forthcoming)
Abstract: I explore the derivative citizenship statutory framework and its interaction with marital status, citizenship, gender, race, and class as implemented by federal courts. The first section of the paper describes the origins and current statutory and constitutional framework for derivative citizenship. The second section explores contemporary adjudication of derivative citizenship, the operation of marriage, sex, race and class discrimination in the cases, and the legal and moral bankruptcy of the determinations. The third section offers a critique of the doctrinal framework, relying on the work of Ian Haney Lopez, Candice Lewis Bredbenner and other critical race and feminist legal scholars that have traced race and gender bias in citizenship norms and marriage. The conclusion identifies possible reforms. Legal norms concerning marriage and the family have proved resistant to substantive and formal notions of equality. Marriage’s relationship to explicit and implicit gender and racial stereotypes and bias continues, to a degree, today, penalizing couples in traditional marriages who are in “mixed” marriages, same-sex marriages and parents who are not in marriages because the law does not recognize their relationship or because they opt not to be married, whether they live together or apart. Even where the domestic law of the family has been transformed to minimize formal gender and racial bias, the federal law of derivative citizenship has lagged behind, clinging to biased notions of gender, family and marriage in the administrative and judicial implementation of the formal legislative rules provided by Congress to determine who derives citizenship and who does not. The current statutory framework is problematic from an equality perspective, even if formally consistent with current understandings of equal protection law. The current statutory focus on the marital status or citizenship status of the parents should be replaced with a focus on the U.S. citizen parent-child relationship and the statutory requirements simplified to facilitate passage of citizenship from the U.S. citizen parent to children born abroad, regardless of marital status, parent gender, and custodial status. In addition, constitutional protection for parents and children claiming citizenship by descent should be heightened to reflect the importance of the parent’s ability to pass citizenship on to their child to constitutional values of equality and membership. The current system’s reliance on immigration courts and removal proceedings to determine citizenship claims should be abandoned and returned to federal courts. In turn, courts should more rigorously scrutinize citizenship statutes and claims to ensure that the important right of a U.S. citizen parent to pass citizenship on to her or his child born abroad receives protection in accordance with the high value that the United States places on the parent-child relationship and citizenship.
Welcoming a Post-Doma World: Same-Sex Spousal Petitions and Other Post-Windsor Immigration Implications by Benjamin P. Edwards, Michigan State University - Investor Advocacy Clinic 2013 Family Law Quarterly, Vol. 47, No. 2, 2013
Abstract: In this Essay, I explore evolving notions of marriage and their impact on immigration law. In particular, the Supreme Court's decision holding section three of the Defense of Marriage Act (DOMA) unconstitutional in United States v. Windsor has had profound and immediate effects on the immigration rights of same-sex couples.
The great-granddaughter of Russian revolutionary Leon Trotsky, Nora Volkow directs the National Institute on Drug Abuse. Pioneering the use of brain imaging to investigate the effects and addictive properties of drugs, she has made significant contributions to our understanding of addiction as a disease of the brain. For her achievements she was named one of Time Magazine’s “Top 100 People Who Shape Our World” and, in 2000, was named “Innovator of the Year” by U.S. News & World Report.
Dr. Volkow was born in Mexico, attended the Modern American School, and earned her medical degree from the National University of Mexico in Mexico City, where she received the Robins award for best medical student of her generation. Her psychiatric residency was at New York University, where she earned the Laughlin Fellowship Award as one of the 10 Outstanding Psychiatric Residents in the USA. Dr. Volkow spent most of her professional career at the Department of Energy’s Brookhaven National Laboratory (BNL) in Upton, New York, where she held several leadership positions including Director of Nuclear Medicine, Chairman of the Medical Department, and Associate Director for Life Sciences. In addition, Dr. Volkow was a Professor in the Department of Psychiatry and Associate Dean of the Medical School at the State University of New York (SUNY)-Stony Brook.
Monday, August 25, 2014
This Migration Policy Institute Spotlight focuses on Vietnamese immigrants. Within the past four decades, the once-tiny population of Vietnamese immigrants in the United States has grown into one of the country’s largest foreign-born groups.
Vietnamese migration to the United States has occurred in three waves, the first beginning in 1975 at the end of the Vietnam War, when the fall of Saigon led to the U.S.-sponsored evacuation of approximately 125,000 Vietnamese refugees. This first wave consisted mainly of military personnel and urban, educated professionals whose association with the U.S. military or the South Vietnamese government made them targets of the communist forces.
In the late 1970s, a second wave of Vietnamese refugees entered the United States in what became known as the “boat people” refugee crisis. This group came from mainly rural areas and was often less educated than earlier arrivals; many were ethnic Chinese immigrants fleeing persecution in Vietnam.
The third wave entered the United States throughout the 1980s and 1990s; unlike earlier arrivals, this group contained fewer refugees and included thousands of Vietnamese Amerasians (children of U.S. servicemen and Vietnamese mothers) as well as political prisoners.
Since the end of the Vietnam War in 1975, the Vietnamese immigrant population in the United States has risen significantly, increasing from about 231,000 in 1980 to nearly 1.3 million in 2012, making it the sixth largest foreign-born population in the United States. This growth occurred most rapidly during the 1980s and 1990s, when the Vietnamese immigrant population roughly doubled within each decade.
Although refugees comprised the first two waves of Vietnamese immigration, subsequent migration has mainly consisted of immigrants reunifying with relatives in the United States. As of 2012, Vietnamese immigrants comprised about 3 percent of the total foreign-born population, which stood at 40.8 million.
The Vietnamese immigrant population is the fourth largest foreign-born population from Asia, after India, the Philippines, and China. Click here to view how the number of immigrants from Vietnam and other countries has changed over time. Although the vast majority of Vietnamese migrants settle in the United States, others reside in Australia (226,000), Canada (185,000), and France (128,000).
The New York City Bar Association and its Committee on Immigration and Nationality Law has just sent the attached letter to the President and top administration officials at DHS and DOJ, expressing serious concern about the reported denials of access to counsel and due process for women and children at the Artesia, New Mexico detention center. Download City Bar Letter on Access to Counsel and Due Process in Artesia
Rumors abound that President Obama is mulling over bold executive action on immigration. Reuters reports that opponents of his past immigration initatives, including Kris Kobac, are ready to fight back. Kobach, the Republican secretary of state of Kansas, is an architect of laws in several states and localities purporting to facilitate enforcement of the U.S. illegal immigration laws.
Obama has pledged to act alone in the face of congressional inaction on immigration reform, and an announcement could come in early September. Immigration advocates close to the White House are pressing for work permits and relief from deportation for up to 5 million people.
Kobach is likely to be at the forefront of any battle. Kobach is appealing dismissal of a lawsuit challenging teh 2012 Deferred Action for Childhood Arrivals program.
Immigration Impact reports on the roots of undocumnted immigrants in the United States. Data from the Census Bureau and other sources paint a relatively detailed portrait of the unauthorized population and reveal the extent to which most unauthorized immigrants have roots in U.S. society. According to a new fact sheet from the American Immigration Council that summarizes this data:
Unauthorized immigrants account for roughly 1-in-20 workers in the United States.
Three-fifths of unauthorized immigrants have been in the United States for more than a decade.
Nearly half of adult unauthorized immigrants live in households with children under the age of 18.
Approximately 1 million unauthorized immigrants are children.
Roughly 4.5 million native-born U.S.-citizen children have at least one unauthorized parent.
Nearly half of longtime unauthorized immigrant households are homeowners.
Approximately two-fifths of unauthorized immigrant adults attend religious services every week.
The Fields Medal is frequently called the “Nobel Prize” of mathematics, and since it was first awarded in 1936, 16 of the 28 honorees affiliated with United States institutions were foreign-born, including two of the medals awarded last week. But before last week, a woman had never won the honor. Maryan Mirzakhani, an Iranian-born Stanford University professor, became the first female winner of the Fields Medal in its 78-year history.
Mirzakhani won gold medals in two consecutive International Mathematics Olympiads before coming to the United States to earn her doctorate at Harvard University. Immigrants, like Mirzakhani contribute significantly to the Science Technology Engineering and Mathematics fields and distinguish themselves in the fields of scientific research year after year.
Sunday, August 24, 2014
Julian Aguilar of the New York Times reports on the difficulties of providing legal representation to the unaccompanied minors from Central America being detained by the U.S. government. TheTexas Bar Association is providing some guidance for attorneys who want to help. Under the Immigration and Nationality Act, attorneys are not guranteed but can be secured by th enoncitizen at no expense to the government. Pro bono representation in immigration matters is not as easy to secure as in other substantive areas because of the well-known complexities of immigration law.
Lahiri-Jhumpa Photo courtesy of Random House Acclaimed author Jhumpa Lahiri was raised in the U.S. while also spending time with her extended family in India. Her fiction draws from these experiences, depicting the lives and conflicts of immigrant families in America. Her first book, Interpreter of Maladies, won the 2000 Pulitzer Prize for fiction and the PEN/Heminway Award. Her second book, The Namesake, was a novel that was adapted into a film by Mira Nair in 2007. Her recent novel The Lowland was a finalist for the National Book Award and the Man Booker Prize.
On July 24, the Board of Immigration Appeals issued a decision in which it applied last year’s Supreme Court’s decisions in Moncrieffe v. Holder and Descamps v. United States to modify and clarify the Board’s views on proper application of the categorical approach for determining whether a conviction fits within a criminal removal ground. See Matter of Chairez-Castrejon, 26 I&N Dec. 349 (BIA 2014). This advisory by the National Immigration Project and Immigrant Defense Project describes the above developments in the BIA’s view of proper application of the categorical approach in the sections below relating to (1) minimum conduct test; (2) divisibility; (3) realistic probability standard; and (4) relief eligibility burden of proof." - IDP, July 31, 2014.
Saturday, August 23, 2014
A volume in the Pennsylvania Studies in Human Rights series . While young children's rights have received considerable attention and have accordingly advanced over the last two decades, adolescent rights have been neglected, resulting in a serious rights lacuna. This manifests itself in pervasive gender-based violence, widespread youth disaffection and unemployment, concerning levels of self-abuse, violence and antisocial engagement, and serious mental and physical health deficits. The cost of inaction on these issues is likely to be dramatic in terms of human suffering, lost social and economic opportunities, and threats to global peace and security. Across the range of disciplines that make up contemporary human rights, from law and social advocacy, to global health, to history, economics, sociology, politics, and psychology, it is time for adolescent rights to occupy a coherent place of their own.
Human Rights and Adolescence presents a multifaceted inquiry into the global circumstances of adolescents, focused on the human rights challenges and socioeconomic obstacles young adults face. Contributors use new research to advance feasible solutions and timely recommendations for a wide range of issues spanning all continents, from relevant international legal norms to neuropsychological adolescent brain development, gender discrimination in Indian education to Colombian child soldier recruitment, stigmatization of Roma youth in Europe to economic disempowerment of Middle Eastern and South African adolescents. Taken together, the research emphasizes the importance of dedicated attention to adolescence as a distinctive and critical phase of development between childhood and adulthood, and outlines the task of building on the potential of adolescents while providing support for the challenges they experience.
Contributors: Theresa S. Betancourt, Jacqueline Bhabha, Krishna Bose, Neera Burra, Malcolm Bush, Jocelyn DeJong, Elizabeth Gibbons, Katrina Hann, Mary Kawar, Orla Kelly, David Mark, Margareta Matache, Clea McNeely, Glaudine Mtshali, Katie Naeve, Elizabeth A. Newnham, Victor Pineda, Irene Rizzini, Elena Rozzi, Christian Salazar Volkmann, Shantha Sinha, Laurence Steinberg, Kerry Thompson, Jean Zermatten, Moses Zombo.
Jacqueline Bhabha is Director of Research at the François-Xavier Bagnoud Center for Health and Human Rights, Harvard School of Public Health.
Immigration Article of the Day: Immigration in the Supreme Court, 2009-13: A New Era of Immigration Law Unexceptionalism by Kevin R. Johnson
Immigration in the Supreme Court, 2009-13: A New Era of Immigration Law Unexceptionalism by Kevin R. Johnson, University of California, Davis - School of Law August 14, 2014 Oklahoma Law Review, Forthcoming UC Davis Legal Studies Research Paper No. 388
Abstract: This is a contribution to a forthcoming symposium in the Oklahoma Law Review on the 125th anniversary of the Chinese Exclusion Case.
With appropriate caution necessitated by the lessons of recent history, this Article posits that the Supreme Court’s contemporary immigration decisions suggest that the plenary power doctrine, the foundation of immigration exceptionalism, is again headed toward its ultimate demise. To test that thesis, this Article carefully scrutinizes the Supreme Court’s immigration decisions, as well as some other actions, such as certiorari denials in significant immigration cases, from 2009 to the present. This period coincides with the first five years of the Obama presidency, which has been a time during which the Executive Branch has seldomly relied on the plenary power doctrine in arguments to the Court.
The review of Supreme Court decisions reveals that, even though the Court now reviews considerably fewer cases than it once did, immigration matters regularly comprise a bread-and-butter part of its docket. Indeed the Court decided five immigration-related merits cases in one Term, an extraordinarily large number for a specialty substantive area of law. The fact that the Court frequently exercises its discretion to accept immigration cases for review suggests that the Justices – like the nation as a whole – consider immigration to be an important, at times contentious, national issue worthy of attention, raising many questions that go to the core of the modern administrative state. In light of the controversy surrounding some of the cases that have come before it, most notably the much-publicized constitutional challenge to Arizona’s SB 1070 and state and local efforts to push the federal government to more vigorously enforce the U.S. immigration laws, the Court could hardly help but be aware of that plain and simple truth.
What is perhaps most noteworthy from the review of immigration decisions of the Supreme Court of the last five Terms is that a conservative Court characterized as ideologically driven by some observers consistently has not taken an extreme approach to immigration law and its enforcement. The Roberts Court’s body of immigration decisions indeed is firmly and comfortably within the jurisprudential mainstream of its decisions in other areas of substantive law. The Court has applied ordinary, standard, and routine legal doctrines for the most part in ordinary, standard, and routine ways.
Analyzing the body of immigration decisions of the Supreme Court under the leadership of Chief Justice John Roberts in the 2009-13 Terms, this Article concludes that the Court in effect has to a large extent continued to bring U.S. immigration law into the legal mainstream. It has interpreted statutes to avoid constitutional questions and avoided invoking the plenary power doctrine to shield vulnerable statutes from judicial review. Although not yet eliminating the doctrine, the Court has slowly but surely moved away from anything that might reasonably be characterized as immigration exceptionalism. The undeniable trend in the Court’s immigration jurisprudence is entirely consistent with its efforts over more than a decade to, whenever possible, interpret the immigration laws to avoid deciding serious constitutional questions, and find creative ways to ensure judicial review of removal orders in the face of stringent congressional restrictions that some might reasonably read as purporting to wholly eliminate judicial review.
In applying the U.S. immigration laws, both conservative and liberal Supreme Court Justices look first to the text of the Immigration and Nationality Act and spend considerable time debating the proper interpretation of the (often complex) statutory provision in question. In addition, the Justices occasionally differ about the application of conventional legal doctrines to immigration cases, but rarely debate whether generally applicable doctrines should apply to immigration cases.
Samantha Power is a member of President Obama’s Cabinet and the U.S. Permanent Representative to the United Nations. As a journalist and author, with a focus on U.S. intervention in genocide and war, she won the Pulitzer Prize in 2003 for her book, A Problem from Hell: America and the Age of Genocide. Power previously served as special assistant to the president and senior director for multilateral affairs and human rights at the National Security Council, as well as the head of Harvard’s Carr Center for Human Rights Policy.
Friday, August 22, 2014
Madeleine Kunin served as the first female and first Jewish governor of Vermont, from 1985 to 1991. During her tenure, she erased the budget deficit, fostered economic growth, and created tough new environmental laws. In 1993, she was appointed Deputy Secretary of Education in the Clinton Administration, and afterward served as the U.S. ambassador to Switzerland, from 1996 to 2000. She is the author of several books and is currently the James Marsh Professor at Large at the University of Vermont.
Immigration Article of the Day: Invisible Spaces and Invisible Lives in Immigration Detention by César Cuauhtémoc García Hernández
Invisible Spaces and Invisible Lives in Immigration Detention by César Cuauhtémoc García Hernández, Capital University Law School; University of Denver Sturm College of Law June 24, 2014 Howard Law Journal, Forthcoming U Denver Legal Studies Research Paper No. 14-29
Abstract: The United States’ civil immigration detention system is characterized by an executive body, the Department of Homeland Security, which possesses substantial authority over the lives of migrants with limited oversight by Congress or the courts. Beginning with the “entry fiction” doctrine that concludes that some migrants who are physically present in the United States are not present for purposes of key constitutional protections, Congress and the courts have granted executive officials substantial flexibility in operating immigration detention sites. They have broad powers and impressive resources to detain migrants they suspect of having violated immigration laws. Migrants who seek release in the United States have a steep path to hew. Moreover, immigration detention centers are shielded from public scrutiny by a host of legislative and judicial decisions ranging from limitations on tort recovery to the inapplicability of transparency statutes. Immense resources and legal authority paired with a lack of penetrating legislative or judicial scrutiny has led to an immigration detention regime that is enormous and filled with abuse. Detainees frequently receive inadequate medical care, complaints about sexual abuse go unreported, and deaths are not uncommon. This Essay posits that the troubling state of immigration detention is a foreseeable — but not irreversible — consequence of these trends.
From the Bookshelves: Hidden Lives and Human Rights in the United States Understanding the Controversies and Tragedies of Undocumented Immigration by Lois Ann Lorentzen, Editor
The most comprehensive collection of essays on undocumented immigration to date, covering issues not generally found anywhere else on the subject. Three fascinating volumes feature the latest research from the country's top immigration scholars. In the United States, the crisis of undocumented immigrants draws strong opinions from both sides of the debate. For those who immigrate, concerns over safety, incorporation, and fair treatment arise upon arrival. For others, the perceived economic, political, and cultural impact of newcomers can feel threatening. In this informative three-volume set, top immigration scholars explain perspectives from every angle, examining facts and seeking solutions to counter the controversies often brought on by the current state of undocumented immigrant affairs. Immigration expert and set editor Lois Lorentzen leads a stellar team of contributors, laying out history, theories, and legislation in the first book; human rights, sexuality, and health in the second; and economics, politics, and morality in the final volume. From family separation, to human trafficking, to notions of citizenship, this provocative study captures the human costs associated with this type of immigration in the United States, questions policies intended to protect the "American way of life," and offers strategies for easing tensions between immigrants and natural-born citizens in everyday life.
Discusses topics rarely covered, including sexual migration, religion, values, and mental health
Features essays across disciplines in the fields of psychology, law, politics, social work, public policy, history, education, and health
Includes tables, maps, photos, and a bibliography for each volume to provide visual interest and additional learning opportunities
Probes the latest controversies centered on recent immigration legislation in Arizona, Georgia, and Alabama
Familiarizes readers with history, theories, and legislation related to undocumented migration in the United States.
Lois Ann Lorentzen, PhD, is professor in the theology and religious studies department and codirector of the Center for Latino/a Studies at the University of San Francisco. Her published works include Etica Ambiental; Raising the Bar: Integrity and Passion in Life and Business: The Story of Clif Bar Inc.; and Religion at the Corner of Bliss and Nirvana: Politics, Identity, and Faith in New Migrant Communities. She received her doctorate in social ethics at the University of Southern California.
Thursday, August 21, 2014
The Boston University School of Law Immigrants' Rights Clinic and the Penn State Dickinson School of Law Center for Immigrants' Rights are pleased to release a practitioner toolkit on refugee and asylee adjustment. This toolkit was prepared for the Pennsylvania Immigration Resource Center (PIRC). Below is a link to the press release and toolkit.
In another reminder of racial disparities in the United States, the U.S. Bureau of Labor Statistics reports that the overall unemployment rate for the United States in 2013 was 7.4 percent; however, the rate varied across race and ethnicity groups. The rates were highest for Blacks (13.1 percent) and for American Indians and Alaska Natives (12.8 percent) and lowest for Asians (5.2 percent) and for Whites (6.5 percent). The jobless rate was 9.1 percent for Hispanics, 10.2 percent for Native Hawaiians and Other Pacific Islanders, and 11.0 percent for people of Two or More Races.
The recent events in Ferguson, Missouri reminds us that the nation has some serious issues of race and racism that need to be addressed. In that vein, AP reports that a Mississippi sheriff says a man was beaten and shot two weeks after calling authorities to report a cross burning in his yard, and investigators are trying to determine whether the attack was prompted by people being upset that the man was visited by his mixed-race grandchildren.
Bloomberg reportstht the Sweden Democrats, a nationalist party that targets deep cuts to immigration, is poised to double its support in elections next month. Polls show the party garnering more than 10 percent of votes, enough to ensure that neither the government of the Prime Minister nor the Social Democrat-led opposition can win a majority on Sept. 14. Both blocs have refused to collaborate with the Sweden Democrats. Support for the party, which came into being in the 1980s following a merger of political movements including a group called Keep Sweden Swedish, has swelled as the country absorbs a growing number of immigrants and asylum seekers from the Middle East. The development casts a shadow over Sweden’s reputation as an open society that has regularly topped United Nations rankings in accepting asylum seekers.