Monday, April 16, 2018
A national debate has gripped the nation about the accountability of police in the treatment of African Americans, with the recent arrest of two African American men at a Starbucks in Philadelphia grabbing the news this weekend. But, as President Trump has ramped up immigration enforcement, Deborah Sontag and Dale Russakoff for ProPublica and the Philadelphia Inquirer look at "Who Polices the Immigration Police? Claims of unjust arrests by ICE agents and cops often disappear into an overwhelmed immigration court system." The report is not encouraging:
Luis, 28, lost his job, his apartment, and all his possessions while in immigration jail. Now, he awaits the resolution of his deportation case as he stays in Reading with a relative of someone he met in detention.
By denying certiorari in Tuaua v. United States, the Supreme Court declined to answer the question whether the Constitution confers birthright citizenship in unincorporated territories. Many believe that the question presents a fundamental conflict between individual rights and local self-determination. Denying birthright citizenship discriminates against those born in unincorporated territories, leaves their nationality to the grace of Congress, and extends the racist foundation of the Insular Cases beyond their express holdings. On the other hand, some fear that acknowledging birthright citizenship in unincorporated territories could undermine their self-determination by tightening equal protection constraints on their local governments.
This article argues that there is no fundamental conflict between birthright citizenship and self-government in unincorporated territories. English common law embodied in the original Constitution confers birthright citizenship and permits self-government there. Most of the principal objections to recognizing birthright citizenship were raised in England and rejected in the 1608 decision in Calvin's Case. The remainder are inconsistent with either the common law rule or American legal precedent. The extent to which equal protection doctrine constrains territorial governments is a separate constitutional issue.
Moreover, shortly after the ratification of the Fourteenth Amendment Congress recognized that the common law rule applied in the Oregon Country when it was self-governing, under joint occupation with Britain, and unincorporated under the later-invented standards of the Insular Cases. Congress then believed that Oregon was too distant and likely to separate into its own republic to become or remain a state and discouraged Americans from emigrating there by refusing to provide land grants or to promise statehood. It considered a variety of other destinies for the territory including a military and naval base, an independent republic, and a colony. In 1825 Senator Dickerson firmly resisted colonialism in opposing a proposal to erect military fortifications and extend U.S. revenue laws there:
"As yet, we have extended our laws to no territories, but such as were or are to become states of the Union. We have not adopted a system of colonization, and it is to be hoped we never shall. Oregon can never be one of the United States. If we extend our laws to it, we must consider it as a colony."
Congress rejected the proposal, and Oregon subsequently established its own organic government. Congress did not extend federal law to the Oregon Country until 1848 when it organized the territory and promised statehood by conferring the rights and obligations of the Northwest Ordinance on its residents. Congress abjured colonialism in Oregon only to embrace it later in the insular territories. Congress can correct that error by ceasing to exercise its jurisdiction over the remaining unincorporated territories, which could then constitute (or re-constitute) their own organic governments. The Oregon precedent of organic self-government combined with birthright American citizenship provides a model for self-governing territories that are affiliated with the United States but are neither states nor colonies.
Sunday, April 15, 2018
Migrants on caravan climbed onto train to continue north. I've heard so many horrific stories of the violence they're fleeing in Central America. A mom showed me scars on her 6 yr old daughter's body. She was burned when gang set her home on fire. They want to seek asylum in US. pic.twitter.com/iCQ3wq7jOv— Leyla Santiago (@leylasantiago) April 14, 2018
Leyla Santiago of CNN reports on a "caravan" of migrants from Central America that provoked a twitterstorm by President Trump. The caravan reportedly had "dispersed" in Mexico City. The migrants have fled violence and turmoil.
However, Central American migrants rushed to the tracks yesterday when the first train whistle rang out. After a few days in Mexico City, the group continued the journey north. About 500 migrants traveling climbed on a freight train just outside the Mexican city of Tultitlán. As the train slowed down, migrants scrambled around the train cars to find a way to climb aboard, throwing small bags of belongings onto the train and hastily helping one another.
Saturday, April 14, 2018
President Trump's immigration stands evidently are influencing the sports world. Earlier this week, American boxer Rod Salka threw in the towel in the sixth round of a fight against Mexican fighter Francisco Vargas. Salka entered the ring wearing trunks with “AMERICA 1ST” on them; the pattern on the trunks -- a brick wall like that which President Trump wants to build along the U.S./Mexico border.
Yesterday's SCOTUSBlog's Petition of the Day was filed in an immigration case. The petition, filed in Estrada v. United States, presents the following question: Whether the deprivation of a lawful permanent resident’s opportunity to pursue statutorily available discretionary relief from removal can render entry of the removal order fundamentally unfair. I did not think much of the issue until I read the petition (Wilmer Cutler is the Counsel of Record) and saw that there is a circuit split with the Second and Ninth Circuits on one side and the Sixth Circuit on the other.
Here are the facts of the case, which involves the removal of a long-term lawful permanent resident with U.S. citizen children, from the Petition:
"As of 2007, Emilio Estrada had been a lawful permanent resident of the United States for seventeen years, and for twelve years he had lived with his wife (also a lawful permanent resident) in McMinnville, Tennessee. There, he and his wife raised their four children (all U.S. citizens); the children were good students, and he actively participated in their lives. He was also the breadwinner for the family, having worked his way up to a management position. In 2007, Mr. Estrada was charged with possession of a firearm by an unlawful user of a controlled substance. Mr. Estrada’s guilty plea turned his life, and his family’s life, upside down. Because of the conviction, the government sought his removal from the country."
By the way, the Court could well hand down next week its decision in Sessions v. Dimaya, a criminal removal case argued at the very beginning of the Term in October.
Friday, April 13, 2018
Immigration continues to pop up in pop culture. On the television show Grey's Anatomy "Beautiful Dreamer" (Season 14 Episode 19), ICE is looking for a DACA recipient at the hospital. Here is the summary:
An agent from ICE shows up at Grey Sloan in search of an employee who may be working in the U.S. under DACA. Alex’s patient Kimmie wants to leave the hospital to enjoy her final days, but Alex feels differently. Meanwhile, Arizona treats Matthew Taylor’s baby and April wants to do whatever she can to help, on “Grey’s Anatomy,” Thursday, April 12th on ABC, streaming and on demand.
For a recap of the episode, click here.
Thanks to Immigration Professor Rose Villazor for the tip!
SALINAS FARM WORKERS MARCH TO OPPOSE IMMIGRATION RAIDS
Story and photos by David Bacon
Capital and Main - 4/13/18. For a complete set of images, click here
In Salinas, California, on Sunday, over a thousand farm workers and allies filled the streets of its working-class barrio to protest the Trump administration's immigration policies, including an increase in immigration raids that, according to United Farm Workers President Arturo Rodriguez, are "striking terror in rural communities across California and the nation." It was one of six marches taking place this month in agricultural communities around California, Texas, and Washington state.
Lawyers for the Legal Aid Society of New York and Queens Law Associates are in the news for protesting the arrests of immigrants in New York City courthouses. Many advocates contend that courthouses should be considered like schools, hospitals, and places of worship – sensitive locations – where Immigration and Customs Enforcement shouldn’t enter.
At a prayer vigil, Esmeralda Baustista holds a photo of her brother Luis Bautista-Martinez, detained in the ICE raid. With her is daughter Yemaya and friend Yaqueline Cruz. Photo courtesy of CNN
Last week in a raid at a Tennessee meatpacking plant, ICE agents arrested nearly 100 individuals, making it one of the largest workplace immigration raids of the last decade. The next day, over 500 students did not go to school. To put it bluntly: 500 children stayed home because they fear our government.
The defeats in the court continue for the Trump administration in its fights with "sanctuary" cities. Yesterday, a federal judge sided with the city of Los Angeles in ruling that the Department of Justice (DOJ) can’t factor sanctuary city policies into decisions over how to award local policing grants.
Bloomberg News reported that U.S. District Judge Manuel Real agreed with the city’s argument that the Justice Department was abusing its power in basing grant awards on whether a municipality’s police force cooperated with federal immigration officers.
San Francisco previously defeated the Trump administration in a legal challenge over the president’s executive order withholding federal funding from sanctuary jurisdictions. Federal judges in Chicago and Philadelphia also ruled against Trump over the administration’s attempt to make funding conditional on cooperation with its crackdown on undocumented immigrants.
The case is City of Los Angeles v. Jefferson B. Sessions III, 17-CV-07215, U.S. District Court, Central District of California (Los Angeles).
Sanctuary policies limiting state and local participation in federal immigration enforcement now dominate the popular and scholarly debate in immigration law. Less attention, however, has been paid to the rise of the anti-sanctuary movement targeting these policies, especially those proliferating at the state level. In the past year, the federal government has turned to lawsuits and defunding threats to induce states like California and cities like Chicago and New York to reconsider their resistance to federal immigration enforcement. At the same time, states across the country-and most recently Texas with SB 4-are directly mandating local participation in ways that the federal government cannot, and doing so through state laws that prohibit sanctuary policies entirely and impose severe punishments on the cities and officials that support them. This turn towards anti-sanctuary legislation at the state level, we argue, marks a fundamental shift in the focus of contemporary immigration federalism debates.
This Article is the first to analyze this new wave of anti-sanctuary laws. We examine these laws in the context of broader immigration federalism debates in which states are taking either complementary or oppositional stances towards federal enforcement decisions. We also show how, by relying on states, the anti-sanctuary movement has been able to bypass the legal and constitutional constraints that have traditionally cabined efforts at the federal level. Because of this, we argue, the next chapter in the battle over sanctuary policies and federal immigration enforcement will revolve around doctrines concerning localism and state-local relations that have thus far been overlooked in a field accustomed to federal plenary power and principles of federalism.
Despite the strategic advantages of the new state-based anti-sanctuary efforts, we ultimately contend that local autonomy principles offer a strong defense in favor of local sanctuary policies against state anti-sanctuary laws. Importantly, we argue that such a localist approach over engagement with immigration law is more desirable than state approaches. To be sure, this localist defense of sanctuary would also support local anti-sanctuary policies. Yet, such autonomy, we suggest, would serve to decenter the federal government's role in setting immigration enforcement policy, and would diminish the role that sovereignty plays in immigration legal theory. In the long run, both outcomes are likely to better serve the goals of civic engagement and inclusionary policies for noncitizens.
Part I provides a descriptive account of state anti-sanctuary laws that were enacted in the past year. As this Part explains, by seeking to punish sanctuary cities, these anti-sanctuary efforts amplify the federal hyper-enforcement regime. Part II examines legal challenges that sanctuary cities may bring against state anti-sanctuary laws. This part offers doctrinal analyses of the various legal rationales, grounded in local empowerment and municipal power doctrines, which might support discretion for local sanctuary policies in the face of state level crackdowns. Part III makes the normative and legal case for local autonomy over sanctuary policies. In doing so, however, we note that challenging state anti-sanctuary laws will present thorny questions of legal strategy for immigrant advocates. Nevertheless, the Article concludes with a guarded defense of local autonomy, arguing that local control is more desirable than a state or federal orthodoxy with regards to participation in immigration enforcement.
Thursday, April 12, 2018
Examining federalism debates in the context of climate change and sanctuary jurisdictions, this article offers a new theory in arguing that the federal government’s approaches to these inherently transnational concerns represent classic political market failures. Adapting John Hart Ely’s notion of addressing such failures – from Democracy and Distrust – the paper examines a dynamic overlooked by both constitutional law and international law scholars. I explore two political market failures: (1) how minorities (here, immigrants) can be systematically locked out of the political process and, by contrast, (2) how influential minorities (here, the fossil fuel industry) can externalize the costs of their negative conduct through regulatory capture. In such cases, policy making above and below the nation-state is helpful for addressing such failures, as we currently see with state and local policy innovation in the climate and immigration contexts.
Wednesday, April 11, 2018
Supreme Court Justice Ruth Bader Ginsburg presided over a naturalization ceremony at the New York Historical Society. Yusif Abubakari, a newly naturalized citizen from Ghana, told the New York Times, “[Justice Ginsburg] came because of me, because of us, and that made me feel so special today.”
Justice Ginsburg "treat[ed] her rapt audience to a history lesson, one crackling with life and liberty. She told them that her own father arrived in this country at 13 with no fortune and no ability to speak English, and yet, she would soon be administering the oath of citizenship to them as a member of the highest court in the land.
In her remarks Justice Ginsburg detailed the evolving history of representation and inclusion, from the preamble to the Constitution to the abolition of slavery to the amendments that allowed women and blacks to vote.
Justice Ginsburg acknowledged that the United States was at its outset an imperfect union, and is still beset by poverty, low voting numbers and by the “struggle to achieve greater understanding of each other across racial, religious and socio-economic lines.”
She urged its newest citizens to vote and to foster unity. “We have made huge progress, but the work of perfection is scarcely done,” she said.
This article examines the history of US citizenship and deportation policies that have always been based on race, class status, and gender, as well as the effects of such policies on the making of Mexican illegality. Mexicans have been constructed as unassimilable and a threat to the US national polity. They are also viewed as working class likely to become a public charge. Mexican women have been imagined as extremely fertile and while their production has been desired, their reproduction has been feared. These social, political, and legal constructions resulted in the creation of Mexican illegality despite time of residence in the United States, ties to US citizens, or birthright citizenship. While scholars have documented immigration laws that have expatriated US citizen women (mainly of European racial backgrounds), policies that allowed for the deportation of “public charge” cases, and the racialization of Mexicans, who were once considered legally white for naturalization processes; the three identity-based exclusions have not been examined together to understand Mexican experiences in the United States. This article utilizes a racial, class, and gendered analysis to understand the making of Mexican illegality that began with the 1790 citizenship statue in which the United States Congress limited US citizenship rights to “free ‘white people’ and women’s citizenship was determined by their fathers or husbands.” The making of Mexican illegality continues with today’s immigration restrictions that perceive Mexicans as a threat to: national security, the white racial makeup of the country, and the stability of the economy.
Tuesday, April 10, 2018
The 2018 Immigration Law Scholars and Teachers Workshop will take place at Drexel Law School from May 24-26, 2018. This year's theme is: Immigration Law In, Through, and Beyond Moments of Distress.
Registration is now open at this link. Register by April 15 to secure the early-bird rate!
The conference has a slew of fabulous opportunities:
The City of Grand Forks, North Dakota, where I live, has an Immigrant Integration Initiative (III) "to promote naturalization and civic engagement among immigrant populations in our communities, to assess and align community resources to best serve both the New American population and general community, and to assist New Americans with becoming engaged citizens."
With the help of a technical assistance grant from Welcoming America and Partnership for a New American Economy, the III is working to develop a strategic plan regarding the welcoming and integration of New Americans in our region.
The first thing III did was to gather data on immigration and resettlement. The result was this report:
It provides a range of statistical information regarding immigrant populations in Grand Forks, including resettled refugees.
The data set will be the jumping off point for "listening sessions, surveys and focus groups to identify key tactics in enhancing the capabilities and reputation of Grand Forks as a Welcoming Community."
I'm so excited that my community is engaged in this work. You can check out what other communities around the country are doing via this interactive map.
A new study, released by the National Bureau of Economic Research conducted between 2007 and 2012, found that first-generation immigrants create about 25 percent of new firms in the U.S. and, in some states, that number exceeds 40 percent.
Here is an abstract:
We study immigrant entrepreneurship and firm ownership in 2007 and 2012 using the Survey of Business Owners (SBO). The survival and growth of immigrant-owned businesses over time relative to native-founded companies is evaluated by linking the 2007 SBO to the Longitudinal Business Database (LBD). We quantify the dependency of the United States as a whole, as well as individual states, on the contributions of immigrant entrepreneurs in terms of firm formation and job creation. We describe differences in the types of businesses started by immigrants and the quality of jobs created by their firms. First-generation immigrants create about 25% of new firms in the United States, but this share exceeds 40% in some states. In addition, Asian and Hispanic second-generation immigrants start about 6% of new firms. Immigrant-owned firms, on average, create fewer jobs than native-owned firms, but much of this is explained by the industry and geographic location of the firms. Immigrant-owned firms pay comparable wages, conditional on firm traits, to native-owned firms, but are less likely to offer benefits.