Friday, May 20, 2016
As covered by LEXISNEXIS Immigration Law Legal Newsroom, U.S. district court judge Andrew Hanen ripped U.S. Department of Justice attorneys Thursday for being "intentionally deceptive" about deportation deferrals in a lawsuit challenging the November 2014 expanded deferred action programs. House executive actions on immigration and ordered dozens of government. In a 26-page opinion and order, Judge Hanen, who issued the initial injunction against the implementation of the programs, stated that the Justice Department had engaged in "unethical conduct" and had made misrepresentations to the court. Read th eorder for yourself at Download TexasOrder (4)
Lyle Denniston on SCOTUSBlog summarizes Judge Hanen's order here. Among other aspects of the order, Denniston highlights that "[t]he judge conceded that he did not have the authority to disbar the lawyers involved, but he asserted that he did have the authority to revoke the temporary permission he had given them to appear in his court. He said he had done the latter in a separate order, which is still under seal."
Photo: William Thomas Cain/Getty Images
Sameer Rao on ColorLines reports that Broadway sensation "Hamilton" creator and star Lin-Manuel Miranda spoke out against anti-immigrant electoral rhetoric during his commencement remarks at the University of Pennsylvania on May 16.
Miranda didn't name any specific political candidates during his keynote address, but he did criticize a vitriol that many trace to Republican presidential frontrunner Donald Trump.
Governments around the world face increasingly complex migration management challenges at a time of plummeting public support. These two trends are inextricably linked. As Europe’s current refugee crisis illustrates, the difference between success and failure can often hinge on the ability of policymakers to win public trust.
When there is little or no trust in a government’s ability to manage immigration, the capacity to test creative immigration and integration ideas—and build a system that learns from its own experiences, and particularly its mistakes—is severely curtailed, and the penalties for missteps become disproportionately higher. Conversely, winning and maintaining public confidence allow policymakers the political and management space to experiment and maneuver, while mitigating the penalty for the occasional “failure”—inevitable in any complex system.
Public confidence hinges on not just concrete policies and their results, but also on how government activities and outcomes are interpreted and presented to the public, as a new Transatlantic Council on Migration report by MPI Distinguished Senior Fellow and President Emeritus Demetrios G. Papademetriou makes clear.
In Maintaining Public Trust in the Governance of Migration, Papademetriou outlines the principal challenges to public trust that policymakers face—including both external forces as well as the structure of government itself—and reflects on why it is so crucial for immigration policymakers to win back public confidence.
While politicians and public servants responsible for migration cannot control external factors—such as global conflict, instability, and vast opportunity differentials that may give rise to large-scale migration—they can address a host of interlinked governance challenges that affect how an immigration system is perceived by the public.
Creating an honest but nuanced narrative about immigration and how it benefits society at large—coupled with straightforward explanations of the tradeoffs that certain decisions require, and thoughtful policies to address the inevitable losers from immigration—is essential to gaining and maintaining trust in the immigration system.
The report is the third in a Transatlantic Council series that examines the drivers of anxiety that often surround immigration and explores the conditions under which these can be addressed. The first publication in this series examines how religious difference is managed across the Atlantic in fundamentally different ways, and the second describes public opinion on immigration in the United Kingdom.
Settlage, Elmir, Stiffler
While enjoying lunch, we had the opportunity to learn about Middle Eastern communities in Michigan.
Matthew Stiffler of the Arab American National Museum set the stage by describing who Arab Americans are: folks who can trace their heritage to any of the 22 Arab countries. Go ahead. Try to name them. (Click here for the answer).
He presented on the history of Arab migration to the U.S. and, in particular, the more than 100 years of Arab migration to Michigan. That bland statement hardly does justice to the charisma and humor with which he delivered a veritable fount of information.
Rana Elmir, of the Michigan ACLU, noted that the current anti-Arab and anti-Muslim (two concepts conflated by the government and media) movement is something that well predates 9-11 (citing Aladdin "I come from a land / From a faraway place / Where the caravan camels roam./ Where they cut off your ear / If they don't like your face / It's barbaric, but hey, it's home.")
She spoke about the particular challenge of recruiting efforts by the U.S. government, looking to secure informants in Michigan's Middle Eastern communities. And the use of immigration status as leverage to secure assistance.
She also identified the problem of watchlisting - noting that Dearborn has the second largest number of individuals on the terrorist watch list of any city in the United States. That is not because Dearborn is a hotbed of terror but because the watchlist itself is fundamentally flawed.
In addition to those topics, Rama also discussed Syrian refugees as well as how Arab Americans should be counted on the U.S. census (they are currently pigeonholed as white).
Thank you, Rachel Settlage (Wayne State), for moderating this high-energy and wholly engaging panel.
Fatma Marouf (UNLV, soon to join Texas A&M), Sameer Ashar (UC Irvine) and Jennifer Rosenbaum (Yale) have just released a report, entitled "Banking on Unsafe Working Conditions: Placing Profits Before Protection of Casino & Hotel Workers’ Human Rights in Deutsche Bank's U.S. Supply Chain."
From the executive summary: The report "examines working conditions for employees of Station Casinos LLC, which is the third largest private employer in Nevada. The report is based on interviews with 101 employees and raises serious human rights concerns related primarily to casino and hotel workers’ health and safety. Deutsche Bank, a multinational corporation based in Frankfurt, Germany is a partial owner of the company."
The report finds extensive violations of workers' rights taking place at the casinos and hotels. The report recommends "that Station Casinos and Deutsche Bank investigate and address the health and safety issues identified in the report, including by: (1) providing adequate safety equipment to protect workers; (2) ensuring that existing policies addressing health and safety issues are being properly implemented, or developing such policies if none exist; (3) promptly fixing defective machinery and broken equipment that can result in workplace injuries; (4) eliminating any infestations that create health risks; (5) monitoring and maintaining acceptable air quality in the casinos; (6) hiring necessary employees to reduce the mental and physical strain on workers; and (7) offering adequate benefits, including paid sick leave. Trainings should also be provided on labor and employment rights, as well as nondiscrimination policies, to encourage reporting and reduce fear of retaliation."
A number of law professors reviewed the report prior to its release and expressed support for its findings.
Motomura, Wishnie, Anker, Benson, Landau
Panel two of #immprof2016 is "Activist, Scholar, or Both?"
Lenni Benson (NYLS) shared her journey towards creating Safe Passage. It had an unpredictable start. She came upon a juvenile docket by happenstance during a government data collection project. Observing from the back of the room, Lenni saw an unrepresented 8 year old boy, "Miguel" (not his real name), called to the stand. Lenni, being Lenni, jumped up and asked to serve as a "friend of the court" to help speak for the child. The rest you know.
Deborah Anker (HLS) spoke about her incredible work with the Harvard Immigration and Refugee Clinic to push the boundaries of gender asylum law. Interestingly, a lot of change benefited from cases and laws from overseas (Canada, New Zealand, UK).
Michael Wishnie (Yale) considered the issue of "what kind of scholarship, if any, might be useful to activism." I love the ",if any," which he colored by explaining that he came to scholarship only after being told that he had to do it for his job. He called this "disclosing his priors." Wishnie acknowledged that some articles do, in fact, change the world. (Charlie Reich's The New Property). But, more often, it's to say something novel that can start to legitimize an idea or perspective. Treatises, too, he noted, are enormously helpful. Social science scholarship can illuminate patterns through empirical work, while legal history revealing past practices can contribute to activism as well. At the end of the day, though, Wishnie is skeptical of how we can judge whether and how legal scholarship itself has or does impact the world.
Hiroshi Motomura (UCLA) has "agonized" over the idea of the activism-scholarship divide for some time. He spoke about the "lifecycle" of a project. His started with the example of his 1990 article on statutory interpretation. He talked about taking the ideas in that article to litigators (by presenting at AILA) and marketing them as something to try that might help with cases. Those panels led to him being included on litigation teams. This was a true lifecyle from his 1990 article on phantom norms to Zadvydas v. Davis (2001). Hiroshi then spoke about a similar cycle on his work with discretion in immigration enforcement. And it was about taking the effort to reframe his ideas to bring them to different audiences, and being patient.
Joseph Landau (Fordham) did a fabulous job moderating the panel. I have to hand it to him for having the ability to keep these heavyweights on task!
I'll be blogging today and tomorrow live from the Immigration Law Teachers Workshop 2016, which is being hosted by Michigan State University College of Law.
We're kicking things off this morning with a panel on the shape and influence of empirical methods in immigration law. As moderator Huyen Pham (TAMU) said: "everyone needs to start the day by thinking about empirical methods in immigration law." So true.
Ingrid Eagly (UCLA) talked about the growing use and importance of empirical methods in immigration law. Data, she notes, is allowing scholars to move beyond "theoretical frameworks" and "speculation" in ways that are changing advocacy and teaching as much as scholarship.
Fatma Marouf (TAMU) spoke about how to become an empiricist. She identified crash courses designed to train scholars on how to do empirical work. And the benefits and challenges of finding a collaborator/coauthor. She flagged the role of IRB entities at universities that may have a role in directing empirical work. She closed by observing how gender dynamics might affect empirical work (women face some challenges they should be aware of going in).
Emily Ryo (USC) started with a quote from sociologist William Bruce Cameron who said: "not everything that can be counted counts and not everything that counts can be counted." (Ha!) With that caveat, she identified how empirical study of immigration lawyers and immigration judges, in particular, could tell us a lot about the immigration system.
Stephen Manning (ILG) spoke about how data informs and drives immigration impact litigation. He spoke about his work in family detention litigation and how individual stories have been used to illustrate the points made by data rather than making individual stories themselves the focus of litigation. He also spoke about his work with the innovation law lab to collect data for transformative litigation. He gave the discrete example of immigration court in Atlanta and how data is being collected in an effort to cure the flawed "ecosystem" that currently exists in that city.
What an excellent panel to kick off the day. Thank you all for sharing your experiences!
Thursday, May 19, 2016
This morning, the Supreme Court decided Torres v. Lynch. Justice Kagan wrote the opinion for the majority:
"In this case, we must decide if a state crime counts as an aggravated felony when it corresponds to a specified federal offense in all ways but one— namely, the state crime lacks the interstate commerce element used in the federal statute to establish legislative jurisdiction (i.e., Congress’s power to enact the law). We hold that the absence of such a jurisdictional element is immaterial: A state crime of that kind is an aggravated felony."
Justice Sotomayor, joined by Justices Thomas and Breyer, dissented.
For background on the case, click here.
For commentary on the decision, see
Opinion analysis: An emerging divide over text vs. context in interpreting federal immigration law? by Steve Vladeck on SCOTUSBlog
Productivity and Affinity in The Age of Dignity by Stephen Lee,University of California, Irvine School of Law May 5, 2016 The Age of Dignity: Preparing for the Elder Boom in a Changing America, 2015 Michigan Law Review, Vol. 114, No. 6, 2016 UC Irvine School of Law Research Paper No. 2016-20
Abstract: Americans are living longer than ever before. Meanwhile, labor studies project a shortage of caregivers in future labor markets. This forces an urgent question: Who will take care of us once we are too old to take care of ourselves? Ai-jen Poo, a nationally recognized activist takes up this question in The Age of Dignity: Preparing for the Elder Boom in a Changing America. Recognizing that a sizable portion of the caregiving workforce is foreign-born and unauthorized, one answer that Poo offers is expanding employment-based visas to manage future migration flows. While embracing Poo’s larger vision of reform, this Review does two things. First, it shows that immigration admission rules are governed by what I call the productivity/affinity binary in which rules reflect a preference for either workers or family members. In this sense, Poo’s vision for reform privileges caregivers for their economic productivity. This leads to this Review’s second goal: to show that gaps in the caregiving labor market might also be filled by expanding family-based migration opportunities. Relying on family-based migration to fill labor gaps both makes intuitive sense given the kind of affinity bonds that often transpire between family members and caregivers and creates a pool of workers that is flexible and responsive to the shifting needs of the caregiving industry.
Wednesday, May 18, 2016
Abstract: In the last fifteen years, in the United States and elsewhere, there has been a profound and remarkably rapid change to long-established naturalization laws and regulations. In particular, aspiring citizens are now asked to pass increasingly rigorous language and knowledge tests to demonstrate that they can truly “belong” to the cultural mainstream in their new country. The political rhetoric accompanying these changes has focused heavily on concerns about national security and economic vitality in the context of the global recession. As U.S. scholars, lawmakers and advocates consider how best to respond to renewed calls to overhaul American nationality laws, the recent experiences of other Western nations in doing so can shed light on the range of options that are potentially available. This Article therefore explores recent developments in the statutory and regulatory naturalization requirements in seven countries — the United States, Canada, the United Kingdom, the Netherlands, Germany, France, and Australia. The Article identifies potential options for reform to American nationality laws, that are informed by these recent developments here in the United States, as well as by the experiences of other mature democracies.
Over 300 organizations have signed a letter to USCIS Director Leon Rodriguez expressing their concern with the 2 year delay in adjudicating applications for U visas, which are available to certain immigrant victims of criminal activity who have helped law enforcement investigations or prosecutions. The actual grant of U nonimmigrant status is delayed even further due a statutory cap of 10,000 U visas that may be granted to principal applicants each year. But the two-year delay addressed in this letter (available at the link below) is faced by applicants seeking to simply be placed on the U visa wait list. Once placed on the wait list, individuals are granted deferred action (which, like DACA, enables them to seek work authorization). In fact, the Violence Against Women Act Unit, housed in USCIS's Vermont Service Center, had long utilized deferred action for survivor-based relief applications prior to the creation of DACA and DAPA.
Today, the American Immigration Council released Detained, Deceived and Deported: Experiences of Recently Deported Central American Families by Guillermo Cantor, Ph.D. and Tory Johnson. Over the last few years, the escalation of violence in Honduras, El Salvador, and Guatemala has reached dramatic levels. Thousands of women and their children have fled and arrived in the United States with the hope of finding protection. But for many of them, their attempts to escape merely resulted in detention, deportation, and extremely difficult reintegration in Central America. In fact, for some, the conditions they face upon being repatriated are worse than those they tried to escape in the first place.
Between February and May, 2016, the American Immigration Council interviewed eight individuals who were deported (or whose partners were deported) from the United States after being detained in family detention facilities, during which time they came into contact with the CARA Pro Bono Project. These women (or in two of the cases, their partners) shared their experiences—both describing what has happened to them and their children since returning to their country and recounting the detention and deportation process from the United States.
First-hand accounts from Central American women and their family members interviewed for this project reveal the dangerous and bleak circumstances of life these women and their children faced upon return to their home countries, as well as serious problems in the deportation process. The testimonies describe how women are living in hiding, fear for their own and their children’s lives, have minimal protection options, and suffer the consequences of state weakness and inability to ensure their safety in the Northern Triangle. The stories presented in this report are those of a fraction of the women and children who navigate a formidable emigration-detention-deportation process in their pursuit of safety. The process and systems through which they passed only contribute to the trauma, violence, and desolation that many Central American families already endured in their home country.
The latest available data from the federal courts show that during April 2016 the government reported 235 new civil immigration lawsuits had been filed. These suits have been rising fairly steadily during the past year; the April data represent a 37.7 percent increase from one year ago. According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, this number is up 5.4 percent over the previous month when the number of civil filings of this type totaled 223. Overall, the data show that civil immigration filings are up approximately 30 percent from levels reported in April 2011, five years ago.
The Southern District of New York was ranked fourth a year ago. The Eastern District of New York ranked second. It was ranked fifth a year ago. The Middle District of Georgia now ranks third. It was ranked seventh a year ago.
Fighting the Tide of History GOP reinstates usage of "illegal alien" in Library of Congress’ records, book burning next?
Here is some disturbing news from Capitol Hill. Republicans on a powerful House committee yesterday narrowly defended a Tea Party-fueled move to instruct the Library of Congress how to label immigrants living in the country illegally.
The GOP move is designed to force the Library of Congress to retain the term “illegal alien” for cataloging and search purposes, reversing the library’s plan to replace “illegal alien” with less prejudicial terms like “noncitizens” or “unauthorized immigrants.”
Appropriations Committee Democrats tried to defend the library’s move, which came in response to a petition from the American Library Association, to change the immigration-related search terms. They lost by a 25-24 vote.
The library said in a March 26 statement that “the phrase illegal aliens has taken on a pejorative tone in recent years” and added that “aliens” can be confusing since it can also mean beings from another planet.
Tuesday, May 17, 2016
Immigration Article of the Day: Transformative Effects of Immigration Law: Immigrants' Personal and Social Metamorphoses through Regularization by Cecilia Menjívar and Sarah Lakhani
Abstract: This article examines the enduring alterations in behaviors, practices, and self-image that immigrants’ evolving knowledge of and participation in the legalization process facilitate. Relying on close to 200 interviews with immigrants from several national origin groups in Los Angeles and Phoenix, the authors identify transformations that individuals enact in their intimate and in their civic lives as they come in contact with U.S. immigration law en route to and as a result of regularization. Findings illustrate the power of the state to control individuals’ activities and mind-sets in ways that are not explicitly formal or bureaucratic. The barriers the state creates, which push immigrants to the legal margins, together with anti-immigrant hostility, create conditions under which immigrants are likely to undertake transformative, lasting changes in their lives. These transformations reify notions of the deserving immigrant vis-à-vis the law, alter the legalization process for the immigrant population at large, and, ultimately, shape integration dynamics.
Today, the American Immigration Council releases the fact sheet Children in Immigration Court: Over 95 Percent Represented by an Attorney Appear in Court. The data provided was obtained by the Transactional Records Access Clearinghouse and is from the Department of Justice’s Executive Office for Immigration Review covering the period of fiscal year 2005 through March 2016. Over the past few years, thousands of children, many fleeing horrific levels of violence in Central America, have arrived at the U.S. border in need of protection. Most children are placed in deportation proceedings before an immigration judge, where they will carry the legal burden of proving that they should be allowed to remain in the United States. The government does not guarantee them the right to a lawyer, even if they are alone (i.e., without a parent) and/or unable to hire one. As a result, many children must navigate the complicated immigration system without legal representation. Yet, despite these obstacles, a majority of children do attend their immigration proceedings and the attendance rate is especially high (95 percent) for those who are represented by lawyers. The data also suggests that children who do fail to appear are victims of the system’s deficits.
Earlier this week, author, TED speaker and North Korean defector Hyeonseo Lee (Twitter: @HyeonseoLeeNK) published a New York Times op-ed on China's immigration and refugee policies and practices with respect to North Korean refugees. Lee (who now lives in South Korea) writes:
"This past year much has been written about the people fleeing the Middle East for Europe. The world should also pay attention to the North Korean refugee crisis, and to the desperation that drives it...As many as 200,000 defectors are living secretly in China. The Chinese government considers them illegal immigrants — even though they are refugees. As a signatory to the United Nations convention on refugees, China is obligated to not repatriate them, yet it cooperates with North Korea to find defectors and even pays its citizens for turning them in."
The column is both a reminder of the brutal regime governing North Korea and also of the ongoing interdependence between the vulnerability created by unlawful immigration status, immigration policy/practice and human rights.
This 2016 Practitioner Toolkit on LPR Cancellation of Removal was prepared by Penn State Law’s Center for Immigrants’ Rights Clinic (Center) students Laura Lopez Ledesma and Lauren Picciallo in collaboration with the Pennsylvania Immigration Resource Center (PIRC).