Saturday, March 18, 2017
Immigration Impact looks critically at a new Trump immigration innovation. President Trump stated that he has “ordered the Department of Homeland Security to create an office to serve American victims during his Joint Address to congress. The office is called VOICE – Victims of Immigration Crime Engagement. This new office was created by on eofPresident Trump's January 25, 2017 immigration executive orders,
The emphasis on victims of immigrant crimes serves to scapegoat and demonize immigrants even though the data clearly shows that immigrants, including unauthorized immigrants, are less likely than native-born Americans to commit crimes.
Immigration Impact identifies these negative impacts of the new office:
1. Efforts like VOICE may create a climate of discrimination, suspicion, and hatred against all immigrants, and will embolden anti-immigrant groups.
2. The money going to VOICE could be better spent to help victims.
3. This administration’s policies interfere with the ability of local police to fight crime..
4. Trump’s anti-immigrant polices may interfere with efforts to prosecute criminals and hold them accountable.
Immigration Article of the Day: Executive Estoppel, Equitable Enforcement, and Exploited Immigrant Workers by Angela D. Morrison
Executive Estoppel, Equitable Enforcement, and Exploited Immigrant Workers by Angela D. Morrison, Texas A&M University School of Law, Harvard Law & Policy Review, Vol. 11, No. 1, Forthcoming, 6 Mar 2017
Unauthorized workers in abusive workplaces have found themselves in a tug-of-war between federal agencies. On one side are federal prosecutors with the Department of Justice or Immigration and Customs Enforcement — who seek to criminally prosecute or deport the workers and treat the workers as defendants. On the other side are agencies like the U.S. Equal Employment Opportunity Commission, the Department of Labor, and U.S. Citizenship and Immigration Services who have determined the workers are victims of workplace exploitation and deserve protection. This mixed message — protection from one federal agency and prosecution by another — is contrary to Congressional intent and undermines the enforcement of federal workplace laws.
This article argues that workers who find themselves at the center of these inter-branch and intra-branch conflicts can harness equitable concepts in current law to halt their prosecution. It explores the use of prosecutorial discretion in such cases and sets forth a framework for a new theory of estoppel — “executive estoppel” — that should apply in conflicts between and within executive agencies. While the use of prosecutorial discretion is well established, this article argues that prosecutors should especially consider exercising their discretion when prosecution undermines Congressional intent and impedes the enforcement of other federal laws (like workplace laws). Executive estoppel draws on the goals of traditional estoppel and estops an agency from acting when its actions directly conflict with actions taken by another agency.
Friday, March 17, 2017
Workers prune grapevines at a Napa Valley vineyard. (Gary Coronado/L.A.Times)
In this Los Angeles Times article, Natalie Kitroeff and Geoffrey Mohan report that a growing number of agricultural businessmen who say they face an urgent shortage of workers. The flow of labor began drying up when President Obama tightened the border. Now President Trump is promising to deport more people, raid more companies and build a wall on the southern border.
California farms is a proving ground for the Trump team’s theory that by cutting off the flow of immigrants they will free up more jobs for American-born workers and push up their wages. So far, the results aren’t encouraging for farmers or domestic workers.
Farmers are being forced to make difficult choices about whether to abandon some of the state’s hallmark fruits and vegetables, move operations abroad, import workers under a special visa or replace them altogether with machines.
Growers who can afford it have already begun raising worker pay well beyond minimum wage. Wages for crop production in California increased by 13% from 2010 to 2015, twice as fast as average pay in the state, according to a Los Angeles Times analysis of data from the Bureau of Labor Statistics.
St. Patrick’s Day is celebrated annually on March 17, the anniversary of his death in the fifth century. The Irish have observed this day as a religious holiday for over 1,000 years. On St. Patrick’s Day, which falls during the Christian season of Lent, Irish families would traditionally attend church in the morning and celebrate in the afternoon. Lenten prohibitions against the consumption of meat were waived and people would dance, drink and feast–on the traditional meal of Irish bacon and cabbage.
Click here for a discussion of Irish Americans and St. Patrick's Day.
Unconventional Refugees by Elizabeth Keyes, University of Baltimore - School of Law, February 28, 2017
Refugees are a flash point for political divisions in the United States and abroad. The enormous personal, moral, and legal challenges posed by the displacement of refugees around the world reveal the dire inadequacies of our current policies toward refugee protection. Children running to border agents at the U.S. southern border are treated as a security threat to be deterred, instead of a vulnerable population needing some level of protection. The numbers of people seeking safety in the United States, while not objectively high, places further strain on an already under-resourced heavily burdened immigration system, which at the end of the day, offers only partial hope to some of those seeking safety. Simply put, our current laws are simply not designed to offer meaningful protection that fits the contours of new waves of forced migration.
This article breaks open a debate that has been caught between the binaries of protection versus deterrence, and instead asks what framework could effectively serve multiple goals, both short-term protection and long-term deterrence and public safety. To do this, it questions our exclusive focus on the protection afforded by the Refugee Convention, and considers what rights to protection might be owed to “unconventional refugees.”
The Refugee Convention’s principle of non-refoulement (or non-return to the persecuting country) imposes significant duties on receiving nations like the United States, while its implementation requires intensive individualized determinations that create great demands on an overstretched immigration system. Its high value comes from the path it creates for refugees to ultimately access U.S. citizenship, and the value necessarily entails a process of great detail and depth. This article considers whether a complementary form of protection for unconventional refugees is appropriate—protection that is perhaps less valuable, but also less complex to administer and easier for the refugees to access.
The article examines precedents in U.S. immigration laws for such a reimagined form of protection, and examines a series of justifications, both philosophical and pragmatic, for such protection. The world is undeniably experiencing a moment where even the Refugee Convention meets considerable political opposition, so the project of developing a new framework is a long-term one, but it is a project that merits thoughtful consideration starting now. The principle of non-refoulement was once novel, and now constitutes a powerful principle of international law. A new principle for protecting unconventional refugees may also be possible, but only if we begin the task of imagining it.
Thursday, March 16, 2017
President Trump’s revised executive order limiting the scope of the U.S. refugee resettlement program and temporarily halting travel for certain noncitizens from six designated countries already is running into legal hurdles, even as it was taking effect today.
A new issue brief from the Migration Policy Institute examines the major provisions of the executive order signed March 6, which rescinded and replaced a much-contested executive order the President had signed in January, just days after taking office. The brief, by MPI Associate Policy Analyst Sarah Pierce and Senior Fellow Doris Meissner, compares the new executive order to the earlier one, as well as to prior policy and practice.
It is the latest in a series of briefs and commentaries examining the Trump administration’s recent policy changes with regards to immigration and refugee policy, including a commentary providing statistics and further detail on immigrants from the designated countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen), and examining the historical precedent for nationality-specific exclusions.
All of these resources can be accessed here. In the coming days we’ll publish an issue brief examining the executive order regarding border enforcement, so we invite you to check back.
Pulitzer Prize winning writer Sonia Nazario takes you on a personal, powerful, emotional journey to show why three solutions to stem illegal immigration pushed for decades by U.S. politicians--both on the left and the right--have failed. The author of Enrique's Journey, possibly the most read book about immigrants to the U.S., asks: What if we did something radically new, something that works?
The Chief Justice of California Tani Cantil-Sakauye has expressed concerns with federal immigration tactics at the California courthouses in the following letter:
Dear Attorney General Sessions and Secretary Kelly:
As Chief Justice of California responsible for the safe and fair delivery of justice in our state, I am deeply concerned about reports from some of our trial courts that immigration agents appear to be stalking undocumented immigrants in our courthouses to make arrests.
Our courthouses serve as a vital forum for ensuring access to justice and protecting public safety. Courthouses should not be used as bait in the necessary enforcement of our country’s immigration laws.
Our courts are the main point of contact for millions of the most vulnerable Californians in times of anxiety, stress, and crises in their lives. Crime victims, victims of sexual abuse and domestic violence, witnesses to crimes who are aiding law enforcement, limited-English speakers, unrepresented litigants, and children and families all come to our courts seeking justice and due process of law. As finders of fact, trial courts strive to mitigate fear to ensure fairness and protect legal rights. Our work is critical for ensuring public safety and the efficient administration of justice.
Most Americans have more daily contact with their state and local governments than with the federal government, and I am concerned about the impact on public trust and confidence in our state court system if the public feels that our state institutions are being used to facilitate other goals and objectives, no matter how expedient they may be.
Each layer of government – federal, state, and local – provides a portion of the fabric of our society that preserves law and order and protects the rights and freedoms of the people. The separation of powers and checks and balances at the various levels and branches of government ensure the harmonious existence of the rule of law.
The federal and state governments share power in countless ways, and our roles and responsibilities are balanced for the public good. As officers of the court, we judges uphold the constitutions of both the United States and California, and the executive branch does the same by ensuring that our laws are fairly and safely enforced. But enforcement policies that include stalking courthouses and arresting undocumented immigrants, the vast majority of whom pose no risk to public safety, are neither safe nor fair. They not only compromise our core value of fairness but they undermine the judiciary’s ability to provide equal access to justice. I respectfully request that you refrain from this sort of enforcement in California's courthouses.
—Chief Justice Tani G. Cantil-Sakauye
Immigration Article of the Day: The Nondiscrimination Obligation of Immigration and Nationality Act Section 202(A)(1)(A) by Alan Hyde
The Nondiscrimination Obligation of Immigration and Nationality Act Section 202(A)(1)(A) by Alan Hyde, Rutgers University - School of Law, March 13, 2017
The nondiscrimination obligation of Immigration and Nationality Act Section 202(a)(1)(A) entered the law in 1965 as part of a larger Congressional repudiation of the executive branch's claim to flexibility and discretion in the issuance of immigrant visas. The administration had specifically claimed the discretion to direct immigrant visas to Western European countries potentially disadvantaged by the abolition of national origin quotas. Congress eliminated this discretion and, in the same substitute bill, reserved the power to create categories of immigrant admission to itself. Congress reinforced that power by directing the executive branch to administer visa categories without favoring countries or races. The nondiscrimination obligation thus rules out some of the more extravagant recent claims for executive authority unilaterally to alter immigration law.
In this order, federal district court judge Derrick Watson entered a restraining order barring implementation of Sections 2 (travel suspension from six predominantly Muslim nations) and 6 (suspension of refugee admissions) of President Trump's March 6 immigration executive order (also known as Travel Ban 2.0). (The Hogan Lovells law firm represents the state of Hawaii in the case and has posted a variety of court documents online). As the court summarizes,
"Plaintiffs State of Hawai‘i (“State”) and Ismail Elshikh, Ph.D. seek a nationwide temporary restraining order that would prohibit the Federal Defendants from “enforcing or implementing Sections 2 and 6 of the Executive Order” before it takes effect. Pls.’ Mot. for TRO 4, Mar. 8, 2017, ECF No. 65.3 Upon evaluation of the parties’ submissions, and following a hearing on March 15, 2017, the Court concludes that, on the record before it, Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief. Accordingly, Plaintiffs’ Motion for TRO (ECF. No. 65) is granted for the reasons detailed below."
Here is the complaint in Hawaii v. Trump. Judge Watson followed the lead of the Ninth Circuit in Washington v. Trump on the issue of standing, finding that the state of Hawaii had similar economic injuries as the state of Washington had established (i.e., harms to the state's economy and public universities but also harms to tourism to the state). Besides the standing of the state of Hawaii, the court found that a U.S. citizen's rights could be affected by the executive order (by denial of admission of his wife's mother, a Syrian citizen). The court found that the evidence, including President Trump's own statements, evidenced anti-Muslim animus and demonstrated a likelihood of success on the merits of the Establishment Clause claim.
Earlier in the day, the Ninth Circuit denied the motion for rehearing en banc, over a vociferous dissent on the scope of judicial review by Judges Jay Bybee joined by Judges Alex Kozinski, Consuelo Callahan, Carlos Bea, and Sandra Ikuta, in Washington v. Trump, which refused to lift a stay allowing Trump's fi4rst version of the travel suspension to go into effect.
For a compilation of documents related to the many cases challenging President Trump's immigration executive orders, click here.
Wednesday, March 15, 2017
In 2015, 43.3 million immigrants lived in the United States, comprising 13.5 percent of the population. The foreign-born population grew more slowly than Sin prior years, up 2 percent from 2014. Get sought-after data on U.S. immigration trends, including top countries of origin, Mexican migration, refugee admissions, illegal immigration, health-care coverage, and much more in this article.
- Current and Historical Numbers and Shares
- Demographic, Educational, and Linguistic Characteristics
- Immigrant Population Change Over Time: Top States
- Mexican Immigrants
- Health Insurance Coverage
- Workforce Characteristics
- Children with Immigrant Parents
- Permanent Immigration
- Temporary Admission
- Refugees and Asylum Seekers
- Unauthorized Immigrants
- Immigration Enforcement
- Naturalization Trends
- Visa Backlogs
Wait - you don't know who Nick and Vanessa are? They're the latest engaged couple manufactured by ABC's prime time reality show The Bachelor. Look how happy they are:
But that's their happiness before contending with the US immigration system. Because, again, I mean, you already know but just to refresh your recollection, while Nick is a US citizen, Vanessa is a Canadian citizen.
Anna Silman over at The Cut breaks down the immigration options for Vanessa. I'm sure all you immprofs are thinking - obviously, an engaged person is going to pick a K1. Not so fast! Do you know how many Bachelor couples have actually gone through with it to tie the knot? Rise has the deets. Only 2 of 20 Bachelor couples are still together, and only 1 of those is married. Vanessa is likely going to need a different visa route.
From the Bookshelves: City of Inmates: Conquest, Rebellion, and the Rise of Human Caging in Los Angeles, 1771–1965 by Kelly Lytle Hernández
City of Inmates: Conquest, Rebellion, and the Rise of Human Caging in Los Angeles, 1771–1965 by Kelly Lytle Hernández
Los Angeles incarcerates more people than any other city in the United States, which imprisons more people than any other nation on Earth. This book explains how the City of Angels became the capital city of the world’s leading incarcerator. Marshaling more than two centuries of evidence, historian Kelly Lytle Hernández unmasks how histories of native elimination, immigrant exclusion, and black disappearance drove the rise of incarceration in Los Angeles. In this telling, which spans from the Spanish colonial era to the outbreak of the 1965 Watts Rebellion, Hernández documents the persistent historical bond between the racial fantasies of conquest, namely its settler colonial form, and the eliminatory capacities of incarceration.
But City of Inmates is also a chronicle of resilience and rebellion, documenting how targeted peoples and communities have always fought back. They busted out of jail, forced Supreme Court rulings, advanced revolution across bars and borders, and, as in the summer of 1965, set fire to the belly of the city. With these acts those who fought the rise of incarceration in Los Angeles altered the course of history in the city, the borderlands, and beyond. This book recounts how the dynamics of conquest met deep reservoirs of rebellion as Los Angeles became the City of Inmates, the nation’s carceral core. It is a story that is far from over.
Immigration Article of the Day: Refugees, Rights, and Responsibilities: Bridging the Integration Gap by Megan J. Ballard
Refugees, Rights, and Responsibilities: Bridging the Integration Gap by Megan J. Ballard, Gonzaga University - School of Law
The forced displacement of over 65 million people across the globe because of persecution or violence is one of the most intractable human tragedies confronting policy makers. Some of this number are refugees offered protection through resettlement in a host country. In recent years, the United States has accepted over half of the refugees provided with this relocation opportunity. The United Nations (U.N.) requires host countries to facilitate the integration of resettled refugees. Contrary to the U.N. mandate, the federal government does not strive to integrate the refugees it agrees to resettle within its borders. When compared to a theoretical integration model, this article concludes that the U.S. resettlement emphasis on rapid economic self-sufficiency falls short of the multifaceted integration process that entails adaptation on the part of refugees and host communities. Instead, the U.S. strategy of prioritizing immediate participation in the work force may undermine the successful incorporation of refugees into American society.
Community efforts can help fill the gap caused by shortcomings in the U.S. resettlement program. The author has presented workshops on U.S. law to educate local refugees about their rights and responsibilities. These workshops – described in this article – reflect one way in which host communities can foster integration, even in the absence of a national integration policy. Such a local effort can also help counterbalance national messages of exclusion.
Tuesday, March 14, 2017
Check out this report from the Prison Policy Initiative. It offers a comprehensive image of mass incarceration in the United States.
You'll see that immigration pops up twice. It's most obvious in the bar to the right - that grey block represents the 41,000 individuals in immigration detention. It's a little trickier to find immigration in the pie on the left. Look at the yellow slice regarding federal prisons. At the top, you'll see 16,000 slots for folks incarcerated for immigration crimes.
Project Features Immigrant Stories from Lyft, Uber, Taxi Drivers and Passengers in America and Beyond
Riding Up Front (RUF), Inc. a California-based non-profit 501c(3) supporting immigrant rights has launched the RUF Art Blog Project, an ongoing collection of stories from Uber, Lyft and Taxi passengers and drivers illustrated in collaboration with artists from around the world.
RUF seeks to expand awareness of immigrant rights in light of recent political developments. The project's goal is to create an active community of drivers, passengers and artists to highlight and humanize the stories and lives of legal immigrants in America and elsewhere. Donations will support contributing artists as well as the ACLU, the International Rescue Committee, and the American Immigration Council.
"Riding Up Front was originally a personal blog of its founder that evolved into a community-driven creative project as a response to world events and the subsequent dehumanization of immigrants and refugees," said Dr. Anais Rameau, RUF Board Chair and a Laryngologist fellow at UC Davis who completed her residency at Stanford Medical School. "I myself was born in France and am of Iranian and French origin; I support whole-heartedly the promotion and awareness of immigrant rights in this country and elsewhere."
Currently, illustrations of nine artists from six countries are represented on the blog. Each artist chose the style they work best with, and initially were assigned stories based on their own preferences. Each story is about a connection made between the driver and passenger, regardless of race, religion, or gender.
"We have been watching the current situation unfold in the United States with dismay, and I'm just trying to do my part as an immigrant myself," said Nina Rupena, an artist based in Australia who was one of the original contributors to the RUF project. Rupena left her native Sarajevo as a teenager and moved to Australia during the Balkan wars.
Riding Up Front is currently seeking more artwork and stories, and welcomes active participation in the community. To join our community and find out more, please visit: http://ridingupfront.org and visit us on Facebook facebook.com/ridingupfront and twitter @ridingupfront
About Riding Up Front Riding Up Front (RUF) is a non profit 501c(3) organization incorporated in California with the goal of supporting new artists and awareness of immigrant rights. The RUF Art Blog project was created in response to recent policy developments and hopes to create community through story-telling and art that humanize immigrants and refugees.
Fascinating piece from Bloomberg about Russia's use of migrant labor: "The reality in Russia is that the immigrant economy is very much part of its recovery from a prolonged recession. And the government knows it."
Some 15% of Russia's workforce is made up of migrant laborers. Their work is varied.
Immigrants clean city streets and maintain huge residential buildings that dot the skyline. They play a key role in manufacturing, retail, and service sectors as well. In the restaurant industry, kitchen staff from countries like Kyrgyzstan, Tajikistan, and Georgia stay for years, sending most of their money home.
Those remittances have a big impact on the economies of sending countries.
The article even has some details on Russia's immigration law. (I love it when journalists include the law!)
In 2010, work permits were introduced in response to a surge in migration. These days, a monthly permit requires a language test and costs $70—more than 4,000 rubles—a significant amount for immigrant workers who make, on average, $400 a month. Around 1.73 million permits were issued in 2015, according to the government.
Not everyone needs a permit, though. Workers from Kyrgyzstan, Kazakhstan, and Armenia have been exempt since those countries joined a customs union that Russia formed in 2010.
Congress Generates Firestorm of Controversy with Tweet: "We can't restore our civilization with somebody else's babies."
CNN reports that Rep. Steve King (R-Iowa), a strong advocate of immigration enforcement and self-professed advocate for Western civilization, doubled down yesterday on comments he made over the weekend in which he appeared to criticize foreigners and immigrants, drawing complaints of insensitivity on social media and from some of his Capitol Hill colleagues including from within his own party.
Monday, March 13, 2017
The Stanford Law Review has a series of student essays analyzing Supreme Court nominee Judge Neil Gorsuch's decisions on the U.S. Court of Appeals for the Tenth Circuit. In Judge Gorsuch and the Future of Immigration Deference, Matthew Sellers begins:
"If the first couple of months of the Trump Administration are any guide, immigration will be front and center before the Supreme Court in coming terms. How a future Justice Gorsuch might rule on the thorny questions of administrative law, due process, and executive power that these cases raise will turn on how much deference he believes the judiciary owes to the political branches’ immigration decisions. The courts traditionally review the constitutionality of immigration action under a hyperdeferential standard—meaning that legislative classifications and exercises of discretion that would be patently unconstitutional in other contexts are perfectly permissible when it comes to noncitizens. And Congress limited the courts’ jurisdiction to questions of law, almost totally insulating factfinding and exercises of discretion. With a significant exception where he invalidated a retroactive Board of Immigration Appeals (BIA) rulemaking, Judge Gorsuch has embraced this arrangement and would likely continue to do so on the Court. This Essay considers two illustrative sets of his opinions: one on judicial review of immigration agency action and another on the interaction of immigration and criminal law."
"Judge Gorsuch’s approach to immigration cases, with the exception of [two] administrative law decisions . . . , closely tracks the judiciary’s traditional deference to the political branches on immigration. Precedent and statute both endorse this approach. But there are open questions about constitutional limits on Congress’s and the President’s powers—limits that President Trump seems determined to test. It remains to be seen whether Judge Gorsuch, if confirmed, would adhere to the position he laid out on the Tenth Circuit when he is inevitably called upon to decide those cases."
The entire set of essays touch on Judge Gorsuch's decisions in these areas:
For $1,225, the USCIS offers premium processing of certain employment-based visa petitions and applications. That fee guarantees 15 calendar day processing (or your money back).
But premium processing is about to be suspended for H1B applications. The suspension (described by USCIS as temporary) will come into effect on April 3, just days after the April 1 start date for the H1B season.
The USCIS says that the suspension is necessary to:
- Process long-pending petitions, which we have currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; and
- Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark.
U.S. Senators Amy Klobuchar (D-MN), Susan Collins (R-ME), and Heidi Heitkamp (D-ND) have urged USCIS to allow premium processing to continue for doctors participating in the Conrad 30 program. (You'll recall that I wrote about this just a short while ago - it's the program that helps to bring doctors to rural and rural-adjacent America). They write:
Health care facilities rely on premium processing to avoid delays in placing doctors in health care facilities where their services are desperately needed. The suspension of premium processing will delay when these doctors can begin to serve patients in underserved areas across the country. That delay could harm patients and communities who rely on local health care facilities utilizing Conrad 30 doctors to fill critical needs.
Thank you, Senators, for this letter. I hope USCIS listens.