Sunday, November 22, 2015
Mr. Trump, I’m used to standing out in the crowd. That’s why I’m ready for my special Muslim ID card
NPR offers important facts about the security measures in the U.S. refugee admissions process. Last week, to try to calm state governors' concerns with the admission of Syrian refugees, White House officials hosted a call with 34 governors to better explain current security screening measures. Some members of Congress have called on the Obama administration to stop or at least pause the resettlement program until refugees can be properly vetted.
Here are four things to keep in mind about the current refugee vetting process and concerns over security:
1. Refugees are screened by several different agencies. Their first point of a refugee's contact is with the U.N. High Commission for Refugees. The UNHCR refers people to countries based on whether they have any family members there and where resettlement makes the most sense, say U.S. officials. If that's the U.S., then refugees are vetted by the National Counterterrorism Center, the FBI's Terrorist Screening Center, and the Departments of State, Defense and Homeland Security. Fingerprints are taken, biographical information is collected. They are then each individually interviewed by U.S. officials trained to verify that they're bona fide refugees.
Refugees from Syria are then subject to additional screening that looks at where they came from and what caused them to flee their home, stories that are checked out. All of this occurs before a refugee is allowed to set foot in the country.
2. It's a lengthy process. On average, officials say it's 18 to 24 months before a refugee is approved for admission to the U.S.The U.S. has admitted some 1,800 Syrian refugees in the past two years, and President Obama wants to allow 10,000 more. The administration says half of those who have been admitted are children and about a quarter of them are adults over 60. Officials say 2 percent are single males of combat age.
3. Physical resettlement.There are nine different nonprofit groups, six of them faith-based, that help refugees settle in the U.S. Volunteers with the groups help refugees find homes, furniture, school supplies and jobs.
3. Objections of governors and members of Congress. Some officials worry there are "gaps" in the vetting process. Experts say U.S. intelligence in Syria isn't very good, because the U.S. lacks much of a presence on the ground. So there's no way to compile a thorough watch list of possible terrorists from Syria against which refugees can be checked. Administration officials are briefing governors and members of Congress about the process, but lawmakers may try to pass legislation calling on the administration to suspend its refugee resettlement efforts.
Saturday, November 21, 2015
Maryland Governor Larry Hogan’s request that the federal government not send any Syrian refugees to Maryland until it can provide assurances about security concerns taps needlessly into people’s worst fears about refugees, and defies understanding of the reality of our refugee program.
The federal government, which has exclusive responsibility for deciding who enters the country, shares Governor Hogan’s concern for security. Any immigrant to this country is scrutinized for potential security risks, but refugees are subject to heightened scrutiny that lasts months and, sometimes, years as U.S. officials overseas in refugee camps painstakingly establish the identity of the prospective refugees, and run those verified identities through extensive background checks. Any connection of the refugee or family members to any individual or group deemed even peripherally to be a security risk will not be admitted to the United States.
Governor Hogan is smart enough to know that the U.S. refugee processing program focuses intensively on security. So this is a political move, not one grounded in good policy, and the politics put Maryland squarely on the wrong side of history, the side that shunned Irish fleeing the famine, the side that turned away boats of Jewish refugees in World War II. That is not the side we want to be on.
First, consider who these refugees are. We are talking about Syrians who fled the very people responsible for the atrocious attacks in Paris. We are talking about men, women and children seeking safety for their own families. We are talking about people like that poor young child the image of whose body washed up on the shores of Greece shocked our consciences earlier this fall. We are talking about people who will have spent months, if not years, in refugee camps waiting for approval to come to the United States. These are not terrorists seeking an easy way into the country.
Second, consider the numbers. We have about 35 Syrian refugees now in Maryland. That number may grow to about 200 once the program is fully up and running, since Maryland typically takes about 2% of the refugees in the United States, and President Obama has made space for 10,000 Syrian refugees total. 200 out of the several million refugees from this crisis. And the Governor does not want to welcome even that paltry number.
Third, consider our history. Maryland, founded on principles of religious liberty, provided safety for Christians fleeing persecution for their beliefs. We welcomed freed slaves and Baltimore thrived with the largest population of free African-Americans in the country before the Civil War. And we have been a home to waves of refugees ever since, from the Irish in the 19th century to the Bhutanese in the 21st. History shows us that refugees integrate and strengthen us across the generations.
Finally, consider good policy. Many French people have commented in the wake of the attacks, that the isolation and alienation of minorities in France and Belgium is a root cause of the problem, and racial justice must be part of the response. America’s history is different from Europe’s when it comes to the welcome of immigrants, and good policy demands that we continue to focus on refugee integration, and continue to support the excellent work of the organizations who undertake this work in Maryland, like the International Rescue Committee and the Lutheran Immigrant and Refugee Service. Refugees who feel welcome and who find opportunity are refugees who live peacefully and productively in our midst. We need more welcome, not less.
The Governor’s concern for security and guarantees resonates with us, understandably. But shutting down our welcome of refugees fleeing terrorism is the wrong answer on every level. It makes us no safer, and it undermines a history that Maryland can be proud of. Let us stand on the right side of history.
The Present and Future of Civil Rights Movements: Race and Reform in 21st Century America, Duke Law School
Duke Law School is hosting an incredible conference on the “The Present and Future of Civil Rights Movements: Race and Reform in 21st Century America.” I had the pleasure of participating on the opening plenary panel along with Professors Angela Onwuachi-Willig (organizer and moderator, Iowa), Walter Dellinger III (Duke), Karla F.C. Holloway (Duke), Ted Shaw (North Carolina), Rachel Moran (UCLA), and Madhavi Sunder (UC Davis). (Madhavi's remarks are encapsulated here). Our panel offered reflections on the present and future of the civil rights movement, with a wide variety of contrasting and interesting perspectives. As one might expect, my remarks touched on immigration reform as well as the need to take care to build coalitions, be wary of bargaining away too much, and take care not to sacrifice the interests of the most vulnerable in the community.
The second plenary panel discussed trends in immigration law and policy. Professor Cristina Rodriguez (Yale) led a wonderful discussion with Professors Leisy Abrego (UCLA), Jennifer M. Chacón (UC Irvine), Robin Lenhardt (Fordham), and Hiroshi Motomura and activists Alejandra Gomez (Living United for Change in Arizona (LUCHA)) and Mariaelena Hincapie (National Immigration Law Center). The discussion was an energizing blend of the thoughts if scholars and grass roots activists.
This afternoon, there is a first rate concurrent panel on racism and immigration law and policy. Professor Margareth Etienne (Illinois) will moderate an exchange of ideas among Professors Daniel Morales (DePaul), Richard Delgado and Jean Stefancic (Alabama), and Laura Lopez-Sanchez (North Carolina) and a senior Federal Public Defender Natasha Silas.
There is an incredible amount of energy and enthusiasm at the conference, especially given the national dialogue currently underway about racism on our college campuses and in the nation’s criminal justice system. A full house of students, faculty, and community members are attending the conference. All are indebted to the organizers, Professors Trina Jones (Duke), Angela Onwuachi-Willig (Iowa), and Guy Uriel-Charles (Duke).
Friday, November 20, 2015
The World Migration Report 2015: Migrants and Cities, New Partnerships to Manage Mobility ─ the eighth report in IOM’s World Migration Report (WMR) series ─ focuses on how migration and migrants are shaping cities and how the life of migrants is shaped by cities, their people, organizations and rules.
Over 54 per cent of people across the globe were living in urban areas in 2014. The number of people living in cities will almost double to some 6.4 billion by 2050, turning much of the world into a global city. Human mobility and migration play an important part in this but are largely missing from the global debate on urbanization. Many city and local governments also still do not include migration or migrants in their urban development planning and implementation. The report aims to address this gap by considering migration as a defining factor alongside climate change, population growth, demographic change and economic crisis in shaping sustainable cities of the future.
One year ago, President Obama announced a series of actions in an attempt to make the current U.S. immigration system more workable. Since then, the Administration implemented many of these actions, such as dismantling Secure Communities and adopting the new Priority Enforcement Program. Through these actions, the Department of Homeland Security is concentrating its limited enforcement resources on removing convicted criminals and recent border crossers – rather than breaking up families who have been living and working in our communities for years.
The U.S. Court of Appeals for the Fifth Circuit has delayed the implementation of the expanded deferred action program (DAPA), which the Obama administration is seeking to have the Supreme Court review. The Court could decide the lawfulness of the administration’s expanded deferred action program in the spring of 2016, just months away from the 2016 Presidential election. It thus seems unlikely that, even if vindicated by the Court, the program will be in effect for long during the Obama administration. The end result is most unsatisfying -- a delay of many years of immigration reform combined with the stymying of the Obama administration’s modest attempt to cobble together some temporary relief in the face of an immigration stalemate in Congress. At the same time, millions of noncitizens have been removed from the United States in the Obama years. All in all, it is not the immigration legacy that President Obama could have wanted or the nation deserved.
Somehow, I feel like the debates over immigration regularly feel as if, to quote the late Yogi Berra, déjà vu all over again all over again. Donald Trump has returned to the headlines with the proposal that, in the name of protecting national security, the government create a national database that includes all Muslims, citizens and noncitizens alike, in the United States. (After attacked for the proposal, he later retreated a bit from it.). I am not sure how such a database would come in handy. Would we question all Muslims in the event of a terrorist act? As the famous movie Casablanca ended, we could “round up the usual suspects.” Besides its patent unconstitutionality, such a dragnet does not sound like it would be particularly effective from a law enforcement and national security standpoint.
Unfortunately, this kind of extreme measure directed at a discrete and insular minority would not be unprecedented in American history. Most recently, as part of the “war on terror,” the U.S government in the wake of September 11, 2001 invoked its plenary power over immigration and created the “special registration” program, requiring noncitizens from certain countries, mostly the Middle East and other predominantly Muslim nations. Well before that program, the U.S. government had subjected Muslim noncitizens to surveillance and related activities.
The truth of the matter is that racial discrimination historically has not had boundaries based on the technicalities of immigration status. During World War II, the Supreme Court in Korematsu v. United States upheld the internment of persons of Japanese ancestry, including U.S. citizens as well as immigrants. During an earlier national economic calamity known as the Great Depression, state and local governments, with federal assistance and encouragement, sought to reduce the welfare rolls by “repatriating,” voluntarily and otherwise, persons of Mexican ancestry, including U.S. citizens and immigrants. During the Cold War, President Eisenhower directed “Operation Wetback,” the equivalent of a military operation to remove persons of Mexican ancestry, including U.S. citizens as well as immigrants. Although thoroughly discredited as an infamous widespread civil rights violation, Donald Trump has called for an encore.
Obviously, the unconstitutionality of a national Muslim database is crystal clear. Nor is there any need to, as a bill passed by the U.S. House of Representatives would do, adopt special refugee admissions procedures in an effort to effectively eliminate the admission of refugees from Syria and Iraq. The current security checks for refugee admissions are rigorous and thorough. The State Department can be expected to thoroughly vet any potential terrorists in these times.
It is time for the nation to take a collective deep breath. The tragic events in Paris were just that – tragic. We should take necessary measures but not overreact. Many observers look back on the excesses of the measures taken after September 11, including mass arrests and detentions, racial and religious profiling, and much more. We should learn from our history and not repeat its worst moments.
Today, the United States filed a petition for a writ of certiorari with the Supreme Court of the United States, seeking to appeal the 5th Circuit's November 9 decision affirming the injunction against DAPA.
What's your next move as an immprof? Brush up on how to pronounce certiorari for when the press comes a-calling.
James Duane has a helpful Green Bag article on point. He's collected the following data points:
- Justice Stevens uses "ser-shee-or-RAHR-ee" (rhyming with Ferrari).
- Justice Roberts prefers "ser-shee-or-RARE-eye" (rhyming with "fair guy").
- Justice Rehnquist preferred "ser-shee-or-RARE-ee" (rhyming with diary).
- Justice Kennedy, "ever the maverick," prefers "ser-shee-or-ARR-eye" (rhyming with "far cry").
- Justice Sotomayor uses "ser-shee-ARR-ee."
Too much to digest? Here's a helpful and brief YouTube clip:
I don't know about you, but I'm inclined to say "cert."
The Obama administration's tough treatment -- including deportation and removal -- of Central Americans has been criticized. David Rogers in Politico reports that newly released government records show the heavy cost imposed on the very youngest of the child migrants from Central America after President Barack Obama chose to accelerate their deportation hearings in the summer of 2014.In the first 13 months, nearly 2,800 removal orders were issued by immigration judges for children who were afforded no defense lawyer and only a single hearing. In at least 40 percent of these cases, the defendant was 16 or younger.
Immigration Article of the Day: Re-Thinking Immigrant Investment Funds by Alan Gamlen, Christopher Kutarna, and Ashby B. Monk
Re-Thinking Immigrant Investment Funds by Alan Gamlen, Christopher Kutarna, and Ashby B. Monk
Abstract: The idea of selling membership into society is not new, but it has taken on new life with the recent proliferation globally of Immigrant Investor Programs (IIPs). These programs involve the sale of national membership privileges to wealthy foreigners. They are justified by attractive policy objectives: to stimulate economic development and attract engaged investor-migrants. But they are often plagued by failures to achieve either of these two goals. This paper surveys the universe of IIPs, reviews their objectives, activities and performance, and explores how they might be improved. We develop a two-dimensional typology for distinguishing IIPs according to types of criteria they impose on program applicants: (i) wealth criteria and (ii) engagement criteria. We map out four distinct immigrant investor strategies that emerge out of these different IIP criteria: Aspiring Astronauts, Absent Oligarchs, Migrant Mayors and Pioneer Patrons. By analyzing which IIP criteria encourage which strategies, we highlight common mismatches between stated objectives and embedded incentives, helping to explain why many IIPs report poor economic and immigration policy outcomes. We also contemplate solutions. In particular, we observe that the success of an IIP depends upon the coming-together of expertise from two domains — migration policy and investment management — and we draw upon insights from successful Sovereign Development Funds (SDFs), which likewise must simultaneously achieve public policy and financial goals. We propose a set of principles to guide the emergence of a new type of SDF: Immigrant Investment Funds (IIFs). We also indicate how IIFs might help solve, among other things, urgent problems that currently surround migration, refugees and related public attitudes.
On-Line Symposium on Texas v. United States -- Maritza Reyes: The Fifth Circuit in Texas v. United States Chose and Advocated the Term “Illegal Alien”
This installment by Professor Maritza Reyes continues the on-line symposium on the Fifth Circuit's decision in Texas v. United States.
My contribution to this symposium locates Texas v. United States in the current political discourse about immigration and immigrants. The decision speaks to the mood of the country as we continue to wrestle with the legacy of racism. In Texas, a two-judge majority panel of the Fifth Circuit Court of Appeals chose to use the term “illegal alien” in its decision. But it went beyond using the term. In footnote fourteen of its opinion, the majority essentially advocated the correctness of using the term. Therefore, beyond deciding the case and controversy, the Fifth Circuit majority put judicial imprimatur on the use of “illegal alien” at a crucial time in our nation’s history when anti-immigrant sentiment is raging.
Currently, the term “illegal alien” is associated with Latinas/os, the group that has become the face of “illegal alien” in the minds of a segment of the American polity. This decision is one more instance in our nation’s history when racialized politics guide the discussion on immigration law and policy albeit in camouflaged ways, such as by the use of a seemingly non-racial term—“illegal alien”—that nonetheless carries a racial meaning. Politicians and the media also use the term to signal their ideology.
Donald Trump has been notorious for his repeated use of the phrase “illegal alien” as he campaigns to become president of the United States. During the last Republican Debate, Trump said that he was very “happy” with the Fifth Circuit’s decision. Immediately after he referred to the decision, he stated that “we have to stop illegal immigration.” A la Trump, the Fifth Circuit has now added fuel to the “illegal alien” fire. The majority sanctioned the use of the term. In this way, the Fifth Circuit fed the current national rhetoric surrounding the national debate on immigration and border enforcement.
The Fifth Circuit cited three reasons for its support of the terminology. First, the majority cited Garner’s Dictionary of Legal Usage for the contention that “[i]llegal alien is not an opprobrious epithet.” Second, it referred to the Supreme Court’s use of the term in Arizona v. United States, 132 S. Ct. 2492, 2497 (2012). Third, it cited to an article in the Scribes Journal of Legal Writing for the proposition that the use of the term “illegal alien” is both historically and generally accepted. I make some observations about each of these reasons below. Ultimately, it becomes evident that the majority made a choice and knew it was making a choice when it used the term “illegal alien” rather than “undocumented immigrant,” “unauthorized immigrant,” “undocumented alien,” unauthorized alien,” “alien,” or “noncitizen.”
As to the first reason, the majority chose to use Garner’s Dictionary of Legal Usage (Oxford 3d ed. 2011) as opposed to the more traditional Black’s Law Dictionary. According to Garner’s Dictionary, the term “illegal alien” is not a shameful description. However, Black’s Law Dictionary (10th ed. 2014) states: “Although the term was originally a clinical legalism, today it is often viewed as a snarl-phrase. Many writers therefore prefer undocumented immigrant, which others object to as a euphemism. The nomenclature has become a political battleground.” If the Fifth Circuit had cited the definition in Black’s Law Dictionary, it would have provided a more balanced description of the term’s current use in the United States, including as a “snarl-phrase.” The majority admitted that presence without authorization is not a criminal offense. Therefore, technically, if illegality is equated with criminality, the term “illegal alien” is inappropriate. However, the two judges refuted this argument by quoting the explanation in Garner’s Dictionary, which states that “illegal” should not be equated with criminality, “since many illegal acts are not criminal.” Under this rationale, we should call anyone who violates a traffic law an illegal driver. If someone does not pay child support, we should call him or her an illegal parent. Police officers who violate civil rights laws would become illegal cops. Employers who violate employment laws would become illegal employers. Under the Fifth Circuit’s reasoning, violators of any civil law would become illegal. Is the American polity ready to apply the term in this way? Are the same courts that use the term “illegal alien” ready to extend the “illegal” adjective to persons other than undocumented immigrants?
As to the second reason, the majority once again made a choice as to which source to cite. It cited the Supreme Court decision in Arizona to explain that “as the district court pointed out, ‘[illegal alien] is the term used by the Supreme Court in its latest pronouncement pertaining to this area of law.’” Texas, at 5 (citing Arizona, 132 S. Ct. at 2497). I did not find the term “illegal alien” on the page cited (2497) by the Fifth Circuit in its opinion. Justice Kennedy delivered the opinion of the Court in Arizona. He quoted the term “illegal alien” in a quote from a Department of Homeland Security document and in a quote from Hoffman Plastic Compounds, Inc. v. N.L.R.B., 535 U.S. 137, 147 (2002). Arizona, 132 S. Ct. at 2500, 2504. Moreover, Justice Rehnquist delivered the opinion of the Court in Hoffman and primarily used the term “undocumented alien.” 535 U.S. at 140-51. As for Justice Kennedy’s own choice of terminology in Arizona, in the first line of his opinion and throughout his opinion, Justice Kennedy used the term “alien,” not “illegal alien.” He also used the term “unauthorized aliens.” Id. at 2503-04. The justice who used “illegal alien” outright in Arizona was Justice Scalia in his concurring in part and dissenting in part opinion. Id. at 2516-18. It is important to note that Hoffman (the case that Justice Kennedy quoted in Arizona) was decided before Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009), a case in which Justice Sotomayor delivered the opinion of the Court and used the term “undocumented immigrant.” Therefore, if the Fifth Circuit majority wanted to cite the latest term used by the Court, it could have chosen “undocumented immigrant.”
As to the third reason, the majority cited to an article in the Scribes Journal of Legal Writing that posits that the term “illegal alien” is historically and generally accepted. I would like to know by whom it is historically and generally accepted. In 2013, the American Bar Association Journal reported on the 30-day suspension of an Indiana lawyer who referred to his divorce client’s spouse as an “illegal alien” in a letter to her lawyer. The Indiana Supreme Court apparently did not generally accept the use of the term. It found, inter alia, that the attorney’s use of the term showed bias or prejudice. Moreover, did the two judges in Texas consider that there are many terms throughout our nation’s history that were historically and generally accepted when they were used, but were nonetheless used pejoratively against groups of people? I can think of many denigrating terms, which I will not state here, that could take the place of “illegal alien” in the quote from the article that the Fifth Circuit majority used: “’[I]llegal alien has going for it both history and well-documented, generally accepted use.’” But there are many law review articles that explain why undocumented immigrant is a better term. See e.g., Note, The Meaning(s) of “The People” in the Constitution, 126 Harv. L. Rev. 1078, 1079 n.16 (2013) (citations omitted).
There is a plethora of sources the majority could have cited to support its use of more benign terminology, such as “undocumented immigrant.” I wonder if the majority in Texas discussed the message that it would send with its analysis in that footnote. Did anyone in the judges’ chambers question its necessity? Who were the law clerks who assisted the judges? As a former federal law clerk, I would have respectfully counseled against such a one-sided discussion in that footnote. If the judges insisted on including a footnote to support their use of the term, I would have advised them to just cite to prior decisions and use a brief parenthetical explanation, such as (using terminology used in prior opinions).
However, the Fifth Circuit went above and beyond using the term “illegal alien.” It legitimized and promoted its use. And it did so at a time in our country when we are still dealing with the legacy of racism, including the use of certain terms meant to marginalize groups of people who are deemed inferior. The majority chose to use terminology that demeans human beings who live among us and contribute in many positive ways in our society. Some of them grew up in this country or are parents of U.S. citizens. The majority did not discuss the human aspect in its opinion. In fact, the terminology that it used together with the absence of the human perspective dehumanized the people covered by the “Deferred Action for Childhood Arrivals” (DACA) and “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA) programs. Yet, in footnote twenty-five (25), the majority chastised the dissenting judge for referring to the states as “plaintiffs” rather than as “sovereign states.” This proves that the majority knew that judges choose among terminology and that the chosen terminology matters in the particular case and as precedent that can be used in law as in society.
Thursday, November 19, 2015
The New York Times invited students 13-19 to submit editorial cartoons to a panel of judges. Two of the five winners concern immigration and many of the honorable mentions tackle the issue. You can click here to see all of the winners and runners up.
This cartoon, by 17 year old Wiktoria Jaworska, is incredibly poignant in light of Congress' action today:
Here is the accompanying explanation:
The Obama Administration decided to allow 10,000 refugees in for the upcoming year. This gets a lot of media attention, however there are millions of refugees and 10,000 is such a small number in that context. Also, it could take two years to even allow a refugee in because of the intense anti-terrorist protocols. With the media focusing of this new development it prevents the actual refugees from being covered, leaving them in the dark. As people drown, a hand clutches the same article Obama is proudly displaying.
The proposal, which will now make its way to the Senate, would require that no refugee (from Iraq or Syria) be admitted to the United States until:
the Director of the Federal Bureau of Investigation certifies to the Secretary of Homeland Security and the Director of National Intelligence that each covered alien has received a background investigation that is sufficient to determine whether the covered alien is a threat to the security of the United States...
...the Secretary of Homeland Security, with the unanimous concurrence of the Director of the Federal Bureau of Investigation and the Director of National Intelligence, certifies to the appropriate Congressional Committees that the covered alien is not a threat to the security of the United States.
President Obama has vowed to veto the bill should it find its way to his desk.
Immprofs around the country are speaking out against those states that are "refusing" to accept Syrian refugees.
Writing for WaPo, immprofs Pratheepan Gulasekaram and Karthick Ramakrishnan note: "No matter what these governors say as part of their political grandstanding, states cannot actually stop Syrian refugees from settling within their borders." But, they note, "while these governors have little legal ground to stand on, their statements nevertheless showcase the practical and symbolic importance of states even in matters traditionally understood to be beyond their purview."
Immprof Anita Maddali has a long and very thoughtful post on the Youth Circulations blog. She presents a careful history of refugee law as well as a detailed look at the current refugee selection process. She calls upon "all U.S. governors and their constituents to learn from history, to resist fear, and to transform the suffering of Syrian refugees into a life of hope in America."
Writing for Fortune, immprof Susan Martin places the governors' conduct in a historical context, noting that security fears kept the U.S. from helping Jewish refugees during WW2. She concludes: "It would be unfortunate if we as a country returned to the fears and prejudices of the past, which are as unfounded today as they were then."
Meanwhile immprof Steve Legomsky has been talking to a number of outlets about the legality of the states' conduct and the strength of the current screening process. HuffPo put together a great graphic:
Medium is running fascinating series of stories of immigrants who have waited in the proverbial "line" to obtain legal immigration status in the United States. The stories are illuminating about the what it means to "wait in line" for proper immigration status.
- Dan-el Padilla Peralta, an Ivy League professor born in the Dominican Republic, recounts his odyssey of fighting for legal status.
- Prerna P. Lal, an immigration lawyer born in Fiji, tells the story of how it took two Supreme Court decisions for her to get legal residency.
- Vikram Babu, a writer/designer born in India and raised in Canada, details his journey from being undocumented to getting a green card.
- Angy Rivera, an activist born in Colombia, writes about how surviving a traumatic crime put her on a path to citizenship.
- William Han, a lawyer born in Taiwan and raised in New Zealand, explains he couldn’t find legal means to stay — and gave up the line.
- Polyana F. de Oliveira, a tourism professional born in Brazil, recounts why she gave up waiting in the U.S. to change her status.
- Gareth Kelly, an entrepreneur born in England, explains how it’s possible to do everything by the book and still end up undocumented.
Abstract: The liberal notion of citizenship provides equality to all citizens, without regard to ascriptive or other differentiating characteristics. In this sense, citizenship promises to be dispositive of the treatment of all individuals who enjoy it; citizenship is uniform, unalloyed, and indivisible. These are the attributes of citizenship within a liberal national system, governing the relationships between citizens and the state, and among citizens within the state. But must these characteristics extend into the international realm, or may states choose to look beyond the mantle of citizenship when evaluating the citizens of others? And if states do choose to differentiate, and thereby discriminate, among the citizens of others, what obligations do those citizens’ states bear?
This Article considers two instances in which the formal equality of citizenship is jeopardized by discrimination on the basis of national origin (the place of one’s birth) and ancestry (the place of one’s ancestors’ birth). The first concerns the recent policy of India to subject U.S. citizens of Pakistani descent to differential treatment when applying for visas to visit India. The second concerns an ongoing political controversy in the United States around whether to grant Israel admission to the visa waiver program — which would waive the need for Israeli and U.S. citizens to apply for visas to the other country — while permitting Israel to continue to subject U.S. citizens of Palestinian or Arab descent to differential treatment. By deploying national origin and ancestry as proxies for national security threat, both cases violate American notions of equal citizenship, thereby implicating questions of U.S. responsibility to ensure the equal treatment of its citizens by foreign governments.
Wednesday, November 18, 2015
Kevin has already discussed the problem of states' refusal to take Syrian refugees. And the New York Times has coverage of the first casualties of those ill-considered stances.
Let's hope rational arguments prevail. And soon.
Political leaders continue to discuss the resettlement in the United States of refugees from the violence in Syria. The governors of many states have objected to the resettlement of Syrian refugees in their respective states. Senator Ted Cruz reportedly will propose a bill that would bar the admission of Syrian refugees. House Speaker Paul Ryan called for a "pause" in Syrian refugee resettlement efforts. Always one for a colorful phrase, Donald Trump called Syrian refugees a "Trojan horse." Attempting to calm concerns, Attorney General Loretta Lynch has assure the nation that all refugees from Syria are subject to "robust" security checks.
The growing consensus among informed observers is that the federal government has the exclusive power to admit and resettle refugees but that the states could make the resettlement efforts more difficult, politically and otherwise.
Yesterday, the White House hosted a call with a bipartisan group of 34 governors from across the country to provide information about existing refugee admissions policies and security screening measures. According to the White House report,
"White House Chief of Staff Denis McDonough led the call and was joined by Alejandro Mayorkas, Deputy Secretary of the Department of Homeland Security; Simon Henshaw, Principal Deputy Assistant Secretary for the Department of State’s Bureau of Population, Refugees and Migration; Mark Giuliano, Deputy Director of the FBI; and representatives from the National Counterterrorism Center and the Department of Health and Human Services.
The call lasted almost 90 minutes, including an extensive question and answer session among the governors and Administration officials. The officials briefed the governors on the rigorous screening and security vetting process that is required before a refugee is able to travel to the United States. Thirteen governors asked questions.
The Administration officials reiterated what the President has made abundantly clear: that his top priority is the safety of the American people. That’s why, even as the United States accepts more refugees—including Syrians—we do so only after they undergo the most rigorous screening and security vetting of any category of traveler to the United States.
Several Governors expressed their appreciation for the opportunity to better understand the process and have their issues addressed directly by representatives of the agencies responsible for the refugee and screening programs. Others encouraged further communication to ensure that governors are able to better respond to questions from the public about the refugee screening and resettlement process.
Denis McDonough also committed to working with the National Governors Association to improve information sharing and maintain an ongoing dialogue."
Tuesday, November 17, 2015
Immigration Article of the Day: The President's Dilemma: Executive Authority, Enforcement, and the Rule of Law in Immigration Law by Hiroshi Motomura
The President's Dilemma: Executive Authority, Enforcement, and the Rule of Law in Immigration Law by Hiroshi Motomura, University of California, Los Angeles - School of Law November 4, 2015 55 Washburn Law Journal (Forthcoming)
Abstract: In 2012, President Obama announced the Deferred Action for Childhood Arrivals (DACA) program, and in 2014, he announced an expansion of DACA as well as a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Both programs would allow some noncitizens who may be subject to deportation (technically, “removal”) from the United States to apply for multi-year temporary reprieves. These programs have faced a combination of policy and legal challenges. This article, based on my 2015 Foulston Siefkin Lecture, does not address all of the issues posed by DACA and DAPA, but it elaborates on two points that appear very briefly in my book, Immigration Outside the Law (Oxford 2014). First, whether DACA and DAPA are consistent with federal immigration legislation is a question that can be persuasively answered only with reference to the operation of the entire federal immigration scheme, which is one of selective admissions, selective enforcement, and vast discretion in enforcement. In this scheme, the key question is not whether enforcement discretion is exercised, but rather who exercises it. Second and relatedly, the discretion in federal immigration enforcement is so vast and so central to the scheme’s operation that the President faces a dilemma: how to control discretionary enforcement in the field. Adherence to the rule of law requires that the President assert meaningful control over the exercise of prosecutorial discretion by ensuring that discretion is exercised in a uniform, predictable, and non-discriminatory manner. DACA and DAPA respond to this dilemma in two principal ways. First, they regularize grants of deferred action through an application process, followed by a formal process of discretionary adjudication that relies initially on categories and guidelines. Second, DACA and DAPA transfer discretionary authority away from the units within the Department of Homeland Security where rank-and-file employees have actively resisted and challenged prosecutorial discretion guidelines as well as these deferred action programs. In short, DACA and DAPA respond to the President’s dilemma in ways that are grounded not only in the federal legislative scheme but more fundamentally in the rule of law.
Monday, November 16, 2015