Saturday, October 18, 2014
Here is a plot summary. In law school (SMU Dedman School of Law), Cristela, whose family immigrated from Mexico, is on the brink of landing her first big (unpaid) internship at a prestigious law firm. Her pursuit of success is more ambitious than her traditional Mexican-American family thinks is appropriate. She straddles the old culture she's trying to modernize at home with her working-class family and the modern world she's trying to embrace in her professional career. Breakout comedian Cristela Alonzo stars in this comedy about the path to the new American dream.
Friday, October 17, 2014
In December, the Supreme Court will hear two cases concerning filing deadlines and equitable tolling, US v. Wong and US v. June. This is an important issue for the court because year after year, case after case, the court keeps musing on what are claims processing rules and jurisdictional rules.
No doubt soon to arrive in the Supreme Court will be MSPC v. Johnson, a complaint filed by the ACLU in DC District Court on the behalf of suffering detainees at the Artesia Detention Center in New Mexico. The complaint is a very curious document because even though it mentions the dreaded judicial review component of the expedited removal statute - 8 U.S.C. § 1252(e)(3) - it makes no mention of equitable tolling. Judge Sullivan in AILA v. Reno,18 F. Supp. 2d 38 (D.C. 1998) declared the filing limit jurisdictional and it was upheld by the U.S. Court of Appeals for the District of Columbia Circuit.
And equitable tolling is a must because the statute cut off judicial review in May 1997 after only 60 days. That jurisdictional limit is built right into the chassis. With equitable tolling, there is no way to challenge the system that Obama and the DHS have tinkered with this year in order to turbo-charge the exclusion of women and children escaping danger in Central America and Mexico.
But if they succeed on the issue of equitable tolling, the whole system could go down. In Boumediene, Justice Kennedy, responding to Bush's CRST military substitute for full habeas, put forth four crucial tests that any alternative habeas system must meet in order to satisfy the baseline of St. Cyr. In 2005, Bush and Congress tried to finesse St. Cyr by channeling all review of final orders of removal through the appeals court. They took habeas review away from the district courts, save for expedited removals. In short, they diminished habeas relief even further. Boumediene is the guanlet thrown down in the face of the post 9/11 nativist panic that gave us the REAL ID Act and CRSTs.
In my next post, I will look at how the expedited removal system does not satisfy any of the four Boumediene tests.
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54 million The Hispanic population of the United States as of July 1, 2013, making people of Hispanic origin the nation’s largest ethnic or racial minority. Hispanics constituted 17 percent of the nation’s total population. Source: 2013 Population Estimates
1.1 million Number of Hispanics added to the nation’s population between July 1, 2012, and July 1, 2013. This number is close to half of the approximately 2.3 million people added to the nation’s population during this period. Source: 2013 Population Estimates National Characteristics: Population by Sex, Race, and Hispanic origin
2.0% Percentage increase in the Hispanic population between 2012 and 2013. Source: 2013 Population Estimates National Characteristics: Population by Sex, Race, and Hispanic origin
128.8 million The projected Hispanic population of the United States in 2060. According to this projection, the Hispanic population will constitute 31 percent of the nation’s population by that date. Source: Population Projections
2nd Ranking of the size of the U.S. Hispanic population worldwide, as of 2010. Only Mexico (120 million) had a larger Hispanic population than the United States (54 million). Source: International Data Base
64% The percentage of those of Hispanic origin in the United States who were of Mexican background in 2012. Another 9.4 percent were of Puerto Rican background, 3.8 percent Salvadoran, 3.7 percent Cuban, 3.1 percent Dominican and 2.3 percent Guatemalan. The remainder was of some other Central American, South American or other Hispanic/Latino origin. Source: U.S. Census Bureau, 2012 American Community Survey: Table B03001
NBC News has an interesting report about the enforcement-oriented turn on immigration in the current campaigns for the U.S. Senate.
In the current campaigns, if high-profile Senate candidates are talking about immigration at all, it usually involves foreboding music or warnings of criminals, terrorists or even Ebola coming over the nation’s Southern border. That’s far from the tone Republicans took earlier this year, as a comprehensive immigration bill faltered in the United States House and and strategists pronounced that the Republican Party’s spiking of the reform could mean its demise as a political party.
A new report from the Pew Research Center’s Hispanic Trends Project sheds some light on why most GOP candidates have taken such a hard right turn on immigration, despite widespread disapproval of the party from Latinos. According to the report, only an average of 4.7 percent of eligible voters are Latino in the eight states with the most competitive Senate races. That’s compared to a national average of 10.7 percent.
In fact, the only competitive Senate race state where the Latino population of eligible voters exceeds the national average is in Colorado, where Republican candidate Cory Gardner has been pushed to moderate some of his hardline stances on immigration.
But in a state like Kentucky, Arkansas or Louisiana, where the Latinos don’t even make up three percent of the eligible voting population, it’s no surprise that support for the most stringent immigration laws is the political norm -- sometimes from both candidates.
Case in point: Democrat Alison Lundergan Grimes, who sounded a note from the GOP playbook when she accused Senate Minority Leader Mitch McConnell of supporting “amnesty” in an ad. That spot won the derision of liberal groups, who called it “offensive” and pushed her to pull it off the air.
The percentage of Kentucky’s eligible voting population that’s Latino? Just 1.6 percent.
In New Hampshire, Republican candidate Scott Brown has even suggested that Ebola could enter the country through the "porous" border. (The percentage of eligible voters who are Latino isn't available in the Pew data, but Census data shows that Latinos make up only about three percent of the state's total population.)
In Iowa, where the Latino population of eligible voters is about 2.7 percent, GOP candidate Joni Ernst frequently voices opposition to "amnesty" and advocates for stricter border security. But she also surprised observers this week, when she said she would not vote to repeal the Deferred Action for Childhood Arrivals program that help young undocumented immigrants.
In a related report, U.S. News ran a story showing that pro-immigration enforcement themes were motivating voters in the Senate races more than reform messages.
Immigration Article of the Day: Zealous Advocacy: Pushing Against the Borders in Immigration Litigation by Elizabeth Keyes
Zealous Advocacy: Pushing Against the Borders in Immigration Litigation by Elizabeth Keyes, University of Baltimore - School of Law September 21, 2014 Seton Hall Law Review, Forthcoming
Abstract: This article examines the forces that undermine zealous advocacy in the context of immigration court, and connects the context-specific issue of immigration defense to debates in the ethics literature about the possible justifications for zealous advocacy. As state bar rules and legal cultures and sub-cultures de-emphasize or remove the duty of zealousness, zealousness becomes increasingly counter-cultural. The article explores those trends, and shows (drawing on existing criminal defense ethical literature) why zealousness is justified in the adversarial and consequential immigration context. The article examines why a broadly understood and well-elaborated standard of zealous advocacy for immigration lawyers would be useful, and shows how it would affect important decisions that are made by immigration lawyers throughout the course of litigation. The article also exposes the untenable dilemmas pitting duties of confidentiality against duties to the court, and frames the ways in which zealousness needs to guide decision-making when those dilemmas arise.
Born in the Dominican Republic,Santiago Casilla is a right-handed relief pitcher with Major League Baseball's San Francisco Giants of Major League Baseball. He pitched 2/3 inning of scoreless relief in the Giants' dramatic 6-3 victory last night over the St. Louis Cardinals. With the win, the Giants made it to the World Series to play the Kansas City Royals.
Thursday, October 16, 2014
Nikki Haley: It’s OK to have the Confederate flag at the statehouse because not “a single CEO” has complained
South Carolina Republican Gov. Nikki Haley defended the Confederate flag’s presence on South Carolina’s statehouse grounds, declaring in a debate Tuesday that the flag isn’t an issue because “not a single CEO” has complained about it. Watch for yourself.
Human Rights Watch Report: You Don’t Have Rights Here’: US Border Screening and Returns of Central Americans to Risk of Serious Harm
The U.S, government’s rapid-fire screening of unauthorized migrants at the border is sending Central Americans back to the risk of serious harm, Human Rights Watch said in a report released today. The 44-page report, “‘You Don’t Have Rights Here’: US Border Screening and Returns of Central Americans to Risk of Serious Harm,” details the US border policies and practices that place migrants at risk of serious harm back home, based on the accounts of people sent back to Honduras, people in detention, and an analysis of deportation data obtained through the Freedom of Information Act. Hondurans who fled extortion and threats from brutal gangs faced fast-track screening procedures in the US that resulted in their deportation without a genuine opportunity to claim asylum. Several of those returned told Human Rights Watch that after their return, they were afraid to leave their houses, fearing for their lives.
Human Rights Watch interviewed 35 migrants, including 25 recent deportees in Honduras and 10 Central Americans in migrant detention centers in Artesia, New Mexico and in Karnes, Texas.
Large-scale Mexican migration to the United States began in the early 20th century, motivated by labor demands in the United States and political unrest in Mexico. Throughout the 20th century, major reforms to the U.S. immigration system played a role in shaping the size and character of Mexican immigration flows. Since 1980, Mexicans have been the largest immigrant group in the United States. As of 2013, approximately 11.6 million Mexican immigrants resided in the United States—up from 2.2 million in 1980—and Mexicans accounted for 28 percent of the country’s 41.3 million foreign born.
For much, much more on Mexican migratyion to the United States, check out this Migration Policy Institute paper.
Men Account for 91% of All Deportees in 2003-2013; Deportations Disproportionately Target Mexicans and Central Americans
Even as deportation of criminals has risen steadily over the past decade, non-criminals represent a majority of the 3.7 million formal removals that occurred between fiscal 2003-2013, and the largest category of criminal removals consists of people whose only convictions were for immigration-related crimes. This pattern is mainly driven by border removals, which surged beginning in 2011 and accounted for 70 percent of all deportations in fiscal 2013. Interior enforcement, in contrast, focuses primarily on people convicted of non-immigration crimes.
While men comprise 53 percent of the overall unauthorized population in the United States, they accounted for 91 percent of all 3.7 million removals that the Department of Homeland Security (DHS) carried out during that 11-year period. And Mexicans and Central Americans from El Salvador, Guatemala and Honduras, who represent 73 percent of the unauthorized population, comprised 91 percent of all formal removals. These findings are part of the most detailed analysis yet of the U.S. deportation system as it has existed since creation of DHS in 2003.
A new Migration Policy Institute (MPI) report, Deportation and Discretion: Reviewing the Record and Options for Change, provides analysis of the U.S. Immigration and Customs Enforcement (ICE) database of all formal removals for fiscal 2003-2013 in which the agency played a role, as well as those carried out solely by U.S. Customs and Border Protection (CBP). The report offers a profile of deportees and examines how removal trends both coincided and changed during and between the Bush and Obama administrations, as well as how closely the deportations adhere to current DHS enforcement priorities. It also outlines some of the scenarios for executive action said to be under consideration by the Obama administration, examining how potential changes to enforcement policy could affect the number of deportations.
After immigration crimes, which comprised 18 percent of the 1.5 million criminal removals that occurred between fiscal 2003-2013, the three next largest crime categories were FBI Part 1 crimes (a definition that includes homicide, aggravated assault and burglary, 15 percent of criminal removals during the period), FBI Part 2 crimes identified by MPI as violent offenses (14 percent) and FBI Part 2 crimes identified by MPI as nonviolent offenses (14 percent).
Fifty-nine percent of the 3.7 million formal removals during the period were of non-criminals, with non-criminal removals comprising the majority of removals at the border. Overall, the pictures of removals by criminality were very different at the border and in the interior.
Figure 1. Border and Interior Removals by Most Serious Previous Criminal Conviction, FY 2013
Among the report’s other top findings:
- Following the defeat of comprehensive immigration legislation in the Senate in 2006 and 2007, the Bush administration generated a substantial enforcement surge, resulting particularly in increased interior removals.
- Beginning in 2009, and increasingly since 2011, the Obama administration has de-emphasized removals for people outside of DHS’s three priority categories (criminal aliens, immigration obstructionists and recent illegal entrants). One result of this has been a steep rise in border removals. A second result has been a growing focus, within the United States, on non-citizens who have previously been convicted of a crime; criminal removals accounted for 80 percent of interior removals in fiscal 2011-2013.
- The median time span between entry and apprehension was four days. Not surprisingly, apprehensions leading to removal occur much more quickly at the border than in the interior. At the border, 76 percent of all apprehensions occurred within three days of entry. Within the United States, just 11 percent of apprehensions occurred within 14 days of entry, almost half (48 percent) involved people who entered at least three years before apprehension and one in six (17 percent) involved people resident ten years or more.
The report also finds that there would have been about 191,000 fewer removals during the period surveyed if DHS had strictly adhered to the guidelines it issued in 2010 and 2011 for exercising discretion not to deport certain people who fall outside established enforcement priority categories.
“Overall, our analysis shows the potential—and the limitations—of prosecutorial discretion under existing immigration laws and priorities,” said Doris Meissner, director of MPI’s U.S. immigration policy program. “The Obama administration has been successful at focusing enforcement on the three priority categories identified beginning in 2010. Yet highly focused enforcement and the characteristics of people removed leave the administration with little additional room to maneuver by simply refining its existing priorities.”
The report finds that many proposed changes to existing enforcement priorities would produce only modest reductions in removals if enacted individually because the majority of those removed met more than one of the current DHS enforcement priorities. “Modifying DHS’s enforcement priorities along multiple dimensions at once would have a more far-reaching effect on removal outcomes,” said Marc Rosenblum, the report’s lead author and deputy director of MPI’s U.S. immigration policy program.
Yesterday, in Lopez-Valenzuela v. Arpaio, the U.S. Court of Appeals for the Ninth Circuit sitting en banc reversed the district court’s summary judgment in a class action challenging Proposition 100, a ballot measure passed by Arizona voters that amended the state constitution to preclude bail for certain felony offenses if the person charged has entered or remained in the United States unlawfully and if the proof is evident or the presumption great as to the charge.
Judge Fisher wrote the opinion for the court, joined by Chief Judge Kozinski, and Judges Thomas, McKeown, Berzpon, Bybee, M. Smith and Nguyen joined in full, with Judge Watford joining all but one part of the opinion. The court held that Proposition 1 00, a nd its implementing laws and rules, violated substantive due process. Apply ing the heightened substantive due process scrutiny set forth in U , 481 U.S. 739, 746-48 (1987), the en banc court held that the Proposition 100 laws do not a ddress an established “particularly acute problem ,” are not limited to “a specific category of extremely serious offenses,” and do not afford the individualized determination of flight risk or dangerousness that Salerno deemed essential. Rather, the laws represent a scattershot attempt at addressing flight risk and are not narrowly tailored to serve a compelling interest. In addition, the en banc court held that the challenged laws are excessive in relation to the state’s legitimate interest in assuring arrestees’ presence for trial.
Concurring , Judge Nguyen agreed with the majority that Proposition 100 violates substantive due process. She wrote separately to address the record of legislative intent, which she believed demonstrates that Proposition 100 was intentionally drafted to punish undocumented immigrants for their “illegal” status, e ven if they pose no flight risk or danger to the community.
Dissenting, Judge Tallman, joined by Judg e O’Scannlain, stated that Proposition 100 is not ex cessive in relation to Arizona’s compelling regulatory interest in ensuring that undocumented immigrants who commit serious felony offenses stand trial.
Dissenting, Judg e O’Scannlain stated that the question of whether deny ing bail to undocumented immigrants based on flight risk is unconstitutionally excessive should have been analyzed under the Eighth Amendment’s Excessive Bail Clause. J u dg e O’Scannlain tentatively concluded that the Eighth Amendment does not restrict legislative discretion to declare certain crimes nonbailable.
Attorneys for the American Civil Liberties Union Foundation, Immigrants’ Rights Project and the ACLU Foundation of Arizona, hand;led the case for the plaintiffs-appellants.
Nina Bernstein of the New York Times tells the compelling immigration story of of Mohammad Sarfaraz Hussain, a Pakistani who successfully fought removal for many years and will be sworn in as a U.S. citizen today. Hussain now works as an emergency medical technician for the Fire Department of New York (F.D.N.Y.).
After decades of mediocrity, the Kansas City Royals are headed to their first World Series since 1985, finishing a four-game sweep in the AL Championship Series with a 2-1 victory Wednesday over the Baltimore Orioles.
Our Immigrant of the Day,Kelvin Herrera pitched 1 2/3 innings of scoreless relief for the Royals. Born in the Dominican Republic, Herrera was first called up to the majors in September 2011. On August 30, 2012, Herrera got his first career save.
Herrera throws extremely hard; his fastball averages about 97 mph and tops out at 103. He pairs his fastball with a deceptive changeup.
Immigration Article of the Day: "Due Process and the Non-Citizen: A Revolution Reconsidered" by Joseph Landau
Abstract: Mathews v. Eldridge is typically understood to be a ruling limiting due process protections in benefits determinations, but this case of judicial restraint in ordinary domestic law has activist features where non-citizens are concerned. The transplantation of Mathews into the critical areas of immigration and national security has produced a body of law that is slowly ushering in rights-affirming outcomes and weakening conventional doctrines of exceptionalism in immigration and national security. There are two chief reasons for this. First, ever since Mathews required an explicit judicial determination of private interests, courts have used an increasingly particularistic, case-by-case analysis in immigration and national security that supplants traditional, group-based inquiries into sovereignty, citizenship, and territoriality. Second, because Mathews requires a judicial assessment of the merits of various policies, courts have become much more actively involved in considering — and, at times, constraining — administrative and quasi-administrative action. Although courts still frequently yield to government interests in immigration and national security cases — Mathews has not caused a sea change in due process protections — the “Mathewsization” of both fields has changed the judicial role, with payoff for individual rights. Moreover, this payoff extends beyond the courts, for the coordinate branches, too, are experiencing a Mathewsization of sorts. In a world defined by fractious institutional power grabs, the new due process has prevented executive and congressional overreach, stimulating a new legal-process-oriented methodology of inter-branch coordination in areas of law once defined by extreme deference to the judiciary.
Wednesday, October 15, 2014
Guerrero, photo AP
If you blinked, you might have missed the story about Harvard University junior Dario Guerrero Meneses.
Yesterday, the AP reported on how Guerrero, a DACA recipient, left the country without federal authorization. He traveled to Mexico in a vain attempt to find alternative medical treatment for his dying mom. His mom passed away, and Guerrero found himself unable to return to the United States.
Hours after the publication of that piece, Guerrero received a "humanitarian visa" enabling him to return to the U.S. and Harvard.
These are stories worth reading. They might make for great teaching moments on using the press to achieve change, humanitarian visas, DACA, or any number of issues.
The application period for joining the second class of the Immigrant Justice Corps is now open!
The Immigrant Justice Corps seeks recent law graduates with a history of commitment to and an interest in building a career in immigration law. Applicants from around the country are welcome, though Fellows will work in New York City to expand "the quality and quantity of immigration legal representation for under-served immigrants."
Remember applications are due by 11:59 p.m. on November 15 and must be submitted via the IJC website: www.justicecorps.org.
In the article, Rhett talks about how the "tide of war and peace often turns on water." For, nations at war often lack "water security, which is a condition where individuals and nations have access to an adequate quantity and quality of water with acceptable costs and risks." He recommends that U.S. foreign policy should focus on advancing water security.
So what does water have to do with immigration? Everything, it turns out. He writes:
The current immigration crisis in the U.S. is in part an example of what mankind has done for thousands of years - pursue water security. Immigrants may say that they are pursuing peace or economic opportunities, but peace and economic opportunities are outgrowths of water security. If the U.S. desires peace abroad, it would do better to invest in water security than in weapons. And if the U.S. desires to resolve its immigration crisis, it would do better to invest in the water security of its neighbors than in walls on its borders.
Immigration Article of the Day: African Migration to the United States: Assigned to the Back of the Bus by Bill Ong Hing
African Migration to the United States: Assigned to the Back of the Bus by Bill Ong Hing University of San Francisco - School of Law 2014 Book Chapter in "Perspectives On The Immigration And Nationality Act Amendments Of 1965" (Editors: Gabriel Chin and Rose Cuison Villazor), Forthcoming Univ. of San Francisco Law Research Paper No. 2014-21
Abstract: This book project, timed on the fiftieth anniversary of the 1965 immigration amendments, recognizes many significant effects that the amendments have had on the United States. In many ways — particularly with respect to dramatic demographic changes in Latino and Asian Pacific American communities — the amendments might be regarded as integral to the perpetuation of the United States as a land of immigrants. Yet, when it comes to residents of African descent after the end of slavery, the 1965 changes have had relatively little to do with facilitating the entry of African migrants to our shores. In this book chapter, I discuss the immigration categories under which African migrants have arrived in the United States and explain how the 1965 framework can facilitate future entry. The review of how African migrants arrived also provides an opportunity to take a closer look at some of their communities across of the country. The examples include Ethiopian, Somali, and West African communities. In the process, their refugee and immigrant experiences in the United States provide us with an overview of the challenges that such migrants face in America. A close look at African migrants to the United States reveals that the vast majority entered as refugees or under diversity visa lottery program that was established in 1990. Thus, the 1965 Act played little role in facilitating their entry. However, the framework of the Act has provided the basis for some African migration and, if continued, will serve as the foundation for future African immigrants to the United States much as it did for the remaking of Asian America.