Monday, December 15, 2014
Immigration Article of the Day: Non-Citizen Nationals: Neither Aliens Nor Citizens by Rose Cuison Villazor
Non-Citizen Nationals: Neither Aliens Nor Citizens by Rose Cuison Villazor, University of California, Davis December 5, 2014
Abstract: The modern conception of the law of birthright citizenship operates along the citizen/noncitizen binary. Those born in the United States generally acquire automatic U.S. citizenship at birth. Those who do not are regarded as non-citizens. Unbeknownst to many, there is another form of birthright membership category: the non-citizen national. Judicially constructed in the 1900s and codified by Congress in 1940, non-citizen national was the status given to people who were born in U.S. territories acquired at the end of the Spanish-American War in 1898. Today, it is the status of people who are born in American Samoa, a current U.S. territory. This Article explores the legal construction of non-citizen national status and its implications for our understanding of citizenship. On a narrow level, the Article recovers a forgotten part of U.S. racial history, revealing an interstitial form of birthright citizenship that emerged out of imperialism and racial restrictions to citizenship. On a broader scale, this Article calls into question the plenary authority of Congress over the territories and power to determine their people’s membership status. Specifically, this Article contends that such plenary power over the citizenship status of those born in a U.S. possession conflicts with the common law principle of jus soli and the Fourteenth Amendment’s Citizenship Clause. Accordingly, this Article offers a limiting principle to congressional power over birthright citizenship.
Sunday, December 14, 2014
Here is an out-of-the-ordinary story that should appealks to the gamers in the crowd.
Yesterday, Papers, Please made its debut on iPad, but the game was missing a key aspect: all nudity had been removed after Apple considered it to be pornographic. According to the game's developer, it turns out it was a mistake and not censorship.
Papers, Please puts you in the role of an immigration officer, and the offending bits involved scanning potential immigrants with an x-ray, which allowed you to see them in the nude. That feature was present in the original PC version from last year, but when Pope submitted the game to Apple it was rejected for containing "pornographic content." A revised version, featuring characters in their underwear instead, was released today.
The game is described below:
"A Dystopian Document Thriller.
The communist state of Arstotzka has ended a 6-year war with neighboring Kolechia and reclaimed its rightful half of the border town, Grestin.
Your job as immigration inspector is to control the flow of people entering the Arstotzkan side of Grestin from Kolechia. Among the throngs of immigrants and visitors looking for work are hidden smugglers, spies, and terrorists. Using only the documents provided by travelers and the Ministry of Admission's primitive inspect, search, and fingerprint systems you must decide who can enter Arstotzka and who will be turned away or arrested."
Talking Points Memo reports that members of the Senate is fuming over objections by Senators Ted Cruz (R-TX) and Mike Lee (R-UT) that held up a $1.1 trillion omnibus bill meant to avoid a shutdown of teh federal government. The objection was fueled by the two conservatives' desire to fight President Barack Obama's executive action on immigration. The objections by Cruz and Lee mean that the Senate must slog through procedural votes Saturday on nominees and also vote to end a filibuster on the omnibus bill at 1 a.m. on Sunday.
Senator Cruz defended himself on Facebook:
"While the Senate considers the CRomnibus spending bill, all we've done was simply request to hold a vote on a measure to stop President Obama's amnesty. Instead, Majority Leader Harry Reid is holding a series of votes today for the sheer purpose of blocking that vote on Obama's amnesty.
Harry Reid's last act as Majority Leader is to, once again, act as an enabler for President Obama, by blocking this vote on the President's amnesty. He is going to an embarrassing length to tie up the floor to obstruct debate and a vote on this issue because he knows amnesty is unpopular with the American people, and he doesn't want the Democrats on the record as supporting it.
No one wants a government shutdown. We are only seeking a vote. As soon as the Majority Leader allows a vote on a measure to stop President Obama's amnesty, we can and should move forward on this bill to fund the government. If he does not, then we will continue to insist upon regular order and use every tool at our disposal to ensure there is a vote."
Prosecuting a Refugee for 'Smuggling' Himself by James C. Hathaway University of Michigan Law School; Melbourne Law School; University of Amsterdam December 2014 U of Michigan Public Law Research Paper No. 429
Abstract: During the summer of 2010, a Thai-registered ship operated by human smugglers – the MV Sun Sea – arrived on Canada’s west coast. The nearly 500 persons aboard, most of whom were Sri Lankan Tamils, sought recognition of their refugee status. Those claims that proceeded to adjudication on the merits were overwhelmingly successful.
Some of the refugee claimants, however, had sought to maximize their chances of surviving the perilous voyage on a grossly overcrowded and barely seaworthy vessel by accepting an offer of better food or living quarters in exchange for the provision of services onboard – for example, by assisting with food preparation or operation of the ship. One such refugee claimant testified that he found the food he was being given was inadequate, especially as he was recovering from being sick. He learned that he would only be given extra food if he performed tasks assigned to him by the captain of the ship. In testimony found by Canadian authorities to be credible and trustworthy, he stated that he performed the tasks assigned to him because he feared offending the captain and having his food rations reduced.
In this and a number of similar cases, the Canadian government invoked s.37(1)(b) of that country’s Immigration and Refugee Protection Act, which denies access to protection to persons who have “engag[ed], in the context of transnational crime, in activities such as people smuggling...,” the latter notion defined at the relevant time in Canadian law as “... knowingly organiz[ing], induc[ing], aid[ing] or abet[ting] the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by [Canadian law].” A person found to be inadmissible under s.37(1)(b) is not allowed to make a refugee claim, meaning that his deportation becomes enforceable. While still eligible to apply for a “pre-removal risk assessment,” no reliance may be placed in that assessment on the risk of being persecuted, and the rights afforded fall short of those required by international refugee law.
The question I address here is the international legality of the prosecution of and de facto exclusion from Convention refugee status of a refugee claimant deemed to have engaged in “people smuggling” by virtue of collaborating with smugglers as a survival strategy.
Three Decades of Engendering History collects ten of Antonia I. Castañeda's best articles, including the widely circulated article "Engendering the History of Alta California, 1769-1848," in which Castañeda took a direct and honest look at sex and gender relations in colonial California, exposing stories of violence against women as well as stories of survival and resistance. Other articles included are the prize-winning "Women of Color and the Rewriting of Western History," and two recent articles, "Lullabies y Canciones de Cuna" and "La Despedida." The latter two represent Castañeda’s most recent work excavating, mapping, and bringing forth the long and strong post-WWII history of Tejanas. Finally, the volume includes three interviews with Antonia Castañeda that contribute the important narrative of her lived experience—the "theory in the flesh" and politics of necessity that fueled her commitment to transformative scholarship that highlights gender and Chicanas as a legitimate line of inquiry.
Saturday, December 13, 2014
Immigration Article of the Day: Making Civil Immigration Detention 'Civil,' and Examining the Emerging U.S. Civil Detention Paradigm by Mark L. Noferi
Making Civil Immigration Detention 'Civil,' and Examining the Emerging U.S. Civil Detention Paradigm by Mark L. Noferi, American Immigration Council November 27, 2014 27 J. Civ. Rts. & Econ. Dev. 101 (2014)
Abstract: In 2009, the Obama Administration began to reform its sprawling immigration detention system by asking the question, “How do we make civil detention civil?” Five years later, after opening an explicitly-named “civil detention center” in Texas to public criticism from both sides, the Administration’s efforts have stalled. But its reforms, even if fully implemented, would still resemble lower-security criminal jails. This symposium article is the first to comprehensively examine the Administration’s efforts to implement “truly civil” immigration detention, through new standards, improved conditions, and greater oversight. It does so by undertaking the first descriptive comparison of the U.S.’s two largest civil detention systems — immigration detention and sex offender civil commitment — to ascertain the value of the “civil” label of detention reform. It finds the emerging civil detention paradigm to be an incarcerative model presuming round-the-clock confinement but with lower security, as well as increasing, near-criminal procedural protections. Thus, the “civil” label of reform has little meaning, either to the individual’s deprivation of liberty or the expressive message communicated. More meaningful and more “civil” reform would be to implement a system that detains less, not just better. Looking forward, I offer a prescriptive framework for a civil detention system — one that detains far less frequently, for shorter periods, and in non-secure facilities not constituting “detention” as traditionally conceived.
After many years in the immigration trenches, Professor Barbara Hines, co-director of the renowned University of Texas School of Law Immigration Clinic, is retiring. Here is a nice profile of Barbara in the Austin Chronicle.
Professor Hines has practiced in the field since 1975 and is Board Certified in Immigration and Nationality Law by the Texas Board of Legal Specialization. She has received numerous awards for her work including the 1992 American Immigration Lawyers Association (AILA) Jack Wasserman Award for Excellence in Litigation; the 1993 AILA Texas Chapter Litigation Award; the 2002 Texas Law Fellowships Excellence in Public Interest Award; the 2007 AILA Elmer Fried Excellence in Teaching Award; the 2009 MALDEF Excellence in Legal Services Award; and the 2010 National Lawyers Guild Carol King Award. In 2000, she was named one of the 100 best lawyers in the state by the Texas Lawyer publication. Professor Hines was a Fulbright scholar in Argentina in 1996 and 2004. She focused her research on Argentine immigration law.
Professor Hines served as the first Co-Director of the Lawyers Committee for Civil Rights under Law of Texas, Immigrant and Refugee Rights Project. She serves on the Board of Directors of the National Immigration Project of the National Lawyers Guild. She has litigated many issues relating to the constitutional and statutory rights of immigrants in federal and immigration courts including the lawsuit leading to the closure of the Hutto immigrant family detention center. She frequently lectures and publishes on topics related immigration law and immigrants’ rights.
Friday, December 12, 2014
Immigration has a deep impact on the economy, society and culture in the US and in the World. This conference brings together top world scholars who have analyzed the economic, demographic, political and social consequences of migrations. Their research will provide the facts and in-depth understanding that is much needed to inform immigration policies. A group of policy advisors and experts will then provide their perspective on the present and future of immigration reforms in the US.
Thursday, January 22 – Friday, January 23, 2015
8am – 4:30pm
ARC Ballroom, UC Davis
Confirmed sessions and speakers include:
Round Table: Asian and Latin American Immigration and Migration Policies Erike Lee, University of Minnesota Natalia Molina, UC San Diego Rose Cuison Villazor, UC Davis Gabriel “Jack” Chin, UC Davis Leticia Saucedo, UC Davis
Migration and Economic Development in Sending Countries Michael Clemens, Center for Global Development Hein de Haas, International Migration Institute, University of Oxford David McKenzie, World Bank J. Ed Taylor, UC Davis
The Origins and Consequences of Migration Policies Roberto Gonzales, Harvard University Cecilia Menjivar, Arizona State University David FitzGerald, UC San Diego Marc Rosenblum, Migration Policy Institute
Concluding Remarks by UC Davis Chancellor Linda Katehi
NBC News reports that that White House officials have detailed how noncitizens should be able to start applying for deferred action and work permits early next year. First up will be those applying for expanded Deferred Action for Childhood Arrivals, or DACA. Then, parents of U.S. citizens and legal resident children should be able to begin applying in May.
Policing Wage Theft in the Day Labor Market by Stephen Lee, University of California, Irvine School of Law November 25, 2014 UC Irvine Law Review, Vol. 4, No. 2, 2014, Forthcoming UC Irvine School of Law Research Paper No. 2014-70
Abstract: In recent years, workers’ rights advocates have turned to a novel tactic in the fight against employer exploitation: pushing for the criminalization of wage theft. In a growing number of jurisdictions, advocates have persuaded lawmakers to pass laws imposing criminal sanctions — hefty fines and the possibility of imprisonment — onto employers for engaging in these bad acts. In this Essay, I focus on the challenges of enforcing wage theft laws within those industries dependent on unauthorized immigrant labor. I argue that federal immigration enforcement programs — ranging from funding inducements to information-sharing schemes to collateral penalties — dampen the promise of turning to the police as allies in the effort to eradicate wage theft. Specifically, local law enforcement agencies (LEAs) that consider protecting unauthorized immigrants (through the enforcement of wage theft laws) must do so amid competing pressures to identify and detain unauthorized immigrants (through the enforcement of federal immigration laws). The structure and design of these federal immigration enforcement programs make it difficult for LEAs to fully withdraw from the larger enterprise of identifying and removing immigrants, which is necessary to effectively enforce wage theft laws in immigrant-dominated communities. My point here is not to dissuade labor rights advocates from ever turning to the criminal justice system for help in the fight against workplace exploitation. But assessing whether the police can solve the problem of wage theft in the day labor market requires further study. Thus, I conclude the Essay with a research agenda of sorts in which I lay out further research trajectories to help answer the question of when policing wage theft can be both effective and desirable.
Thursday, December 11, 2014
Fox News' Sean Hannity invited Jorge Ramos onto his show Wednesday night, beginning by congratulating the Fusion anchor for asking President Barack Obama some tough questions on his recent choice to use executive powers on immigration policy.
A documentary film "14: Dred Scott, Wong Kim Ark & Vanessa Lopez" is finished and available for Educational Use and Public Performance Licensing. The 67-minute documentary is an excellent resource for Constitutional Law courses.
The film explores the recurring question about who has the right to be a U.S. citizen. It examines the citizenship clause of the 14th Amendment through compelling personal stories and expertly-told history. The 14th Amendment provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The film tells the history of the 14th Amendment through the lives of three ordinary and extraordinary American families who changed history by their courageous challenges to the powerful status quo. Descendants of Dred and Harriet Scott and those of Wong Kim Ark tell the stories of how their ancestors fought all the way to the Supreme Court and changed American history. Rosario Lopez and her daughter Vanessa are both activists in the immigrant rights youth movement. Born in the United States and a citizen under the 14th Amendment, Vanessa wants to be “either an artist, a photographer, a lawyer, or a marine biologist” and President of the United States. It is the citizenship of millions of children like Vanessa Lopez, born in the United States to undocumented parents, that is at stake now.
In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the U.S. Supreme Court held, generally speaking, that a person -- even the child of undocumented immigrants -- born in the United States is a U.S. citizen under the 14th Amendment. This decision established an important precedent in its interpretation of the Citizenship Clause of the 14th Amendment.
In A Child, an Immigration Hearing, and a Doctor's Testimony The Atlantic reports on ways in which medical-legal partnerships have been helping unaccompanied minors in their fight to obtain asylum.
New York lawyer Brett Start put it this way:
“I could say to the judge, ‘Your honor, this child is fleeing gangs in his home country and because of that, he’s eligible for asylum,’” Stark explains. “But what’s more powerful and has more impact is to say, ‘Here’s a letter from Dr. Alan Shapiro, where he reports this child has a bullet lodged in his spine in the L6 region.’ And the judge can look at this and say, ‘This corroborates what you’re saying, and we can put this in a legal context.’”
Medical testimony - whether about the child's physical or mental health - can "greatly bolster" asylum claims.
Originally, 17 states challenged the Obama administration's new deferred action program. As the Los Angeles Times reports, the number has grown to 24.
The original states:
The governors of
The new states:
The Migration Policy Institute's online journal, the Migration Information Source, has kicked off its annual countdown of the Top 10 Migration Issues of 2014. It is working backwards from Issue No. 10 through No. 6 this week, and will reveal the Top 5 migration issues of the year next week.
The countdown begins:
Be sure to check back next week for the Top 10 Migration Issues of 2014 to see what made the top of the list!
From the Bookshelves: The Law and Practice of Expulsion and Exclusion from the United Kingdom Deportation, Removal, Exclusion and Deprivation of Citizenship Edited by: Eric Fripp Associate Editor: Rowena Moffatt, Ellis Wilford
The Law and Practice of Expulsion and Exclusion from the United Kingdom Deportation, Removal, Exclusion and Deprivation of Citizenship Edited by: Eric Fripp Associate Editor: Rowena Moffatt, Ellis Wilford
Resort by the state to measures of exclusion and expulsion from the territory of the United Kingdom and/or from British citizenship have multiplied over the past decade, following the so-called ''war on terror'', increased globalisation, and the growing politiciszation of national policies concerning immigration and citizenship. This book, which focuses on the law and practice governing deportation, removal and exclusion from the United Kingdom, the refusal of naturalisation, and deprivation of British citizenship, represents the first attempt by practitioners to assess the law and practice in these areas as a cohesive area of state activity. The undertaking is a vital one because, whilst these areas of law and practice have long existed as the hard edge of immigration and nationality laws, in recent years they have expanded beyond secondary existence as mere mechanisms of enforcement. The body of law, practice and policy created by this process is one which justifies treatment as a primary concern for public lawyers. The book provides a comprehensive analysis of the law in these areas. This involves a consideration of interlocking international and regional rights instruments, European Union law and the domestic regime. It is a clear and comprehensive everyday guide for practitioners, and offers an invaluable insight into likely developments in this dynamic area of public law.
Wednesday, December 10, 2014
The UN General Assembly proclaimed 10 December as Human Rights Day in 1950, to bring to the attention "of the peoples of the world" the Universal Declaration of Human Rights as the common standard of achievement for all peoples and all nations.
This year’s slogan, Human Rights 365, encompasses the idea that every day is Human Rights Day. It celebrates the fundamental proposition in the Universal Declaration that each one of us, everywhere, at all times is entitled to the full range of human rights, that human rights belong equally to each of us and bind us together as a global community with the same ideals and values.
The techniques employed by the Central Intelligence Agency to interrogate detainees documented in the Senate Intelligence Committee report released yesterday have made international news. CNN identifies the "most shocking passages" of the disturbing report. The New York Times identifies its own "key points." The Daily Beast lists the report's "most gruesome moments."
It should not be forgotten that the victims of what President Obama and others have chacarterized as "torture" were members of certain distinct racial, ethnic, or religious groups associated with terrorism in the eyes of many Americans. They were dehumanized in the media and by their interrogators. Similarly, as is well-documented, Arabs and Muslims in the United States were subjected to interrogation, detention, and new immigration requirements (such as spoecial registration) after the events of September 11, 2001. Note also that the new Obama administration guidelines on racial and other profiling exempt federal law enforcement officers from relying on profiles based on race, national origin, religion, etc., in national security (as well as immigration enforcement) matters.
Tuesday, December 9, 2014