Tuesday, July 22, 2014
My musings on Huffington Post:
Gang violence in Honduras, Guatemala and El Salvador is a major reason for the surge in unaccompanied immigrant children leaving those countries and risking their lives to reach the United States. Many of the young boys are fleeing to avoid being recruited into a gang or forced to transport drugs. Gangs also target adolescent girls to become "girlfriends" and threaten or rape them when they refuse. While we may be generally aware of the gang violence, we should not forget the role that U.S. deportation policies played in the creation of these gangs in Central America.
The two main gangs in Central America -- the 18th Street gang (M-18) and the rival Mara Salvatrucha (MS-13) originally were established in Southern California. M-18 was mostly a 1960s Mexican-American group in Los Angeles. MS-13 was formed defensively by those who fled from Central America during the civil wars of the 1980s who were threatened by M-18. Over time, much cross-fertilization ensued. Even though they may have been in the United States lawfully, once these non-citizens were convicted of their crimes and served their time, they were turned over to immigration officials and deported.
Efficient deportation of gang bangers was facilitated by Congressional reforms in 1996. Changes included the elimination of a deportation relief to an "aggravated felon" who might deserve a second chance by demonstrating rehabilitation. So after 1996, thousands got sent back to Central America, where their baggy pants, tattoos and shaved heads were transformed into effective recruitment tools among vulnerable youth: the M-18 and MS-13 were re-born.
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Under the leadership of Attorney General Eric Holder, the Justice Department has recommended sweeping changes the criminal JUSTICE SYSTEM. His "smart on crime" initiative represents a major philosophical shift in how we should view crime and punishment in the United States. Public safety is not simply a matter of prosecution and incarceration; to be effective, we also must focus on prevention and reentry. Importantly, a driving force behind this call to rethink our approach is his concern that many aspects of our criminal JUSTICE SYSTEM may actually exacerbate problems, rather than alleviate them. Locking up drug offenders and other felons then throwing away the key is short-sighted, in his view.
Just as the Attorney General challenges us to do something about the lives being harmed, not helped, by a criminal justice system, we should do something to reform a deportation system that helps those caught up in the system to better themselves, thereby helping their families and the community. We can be creative in developing alternative approaches to immediate deportation, because the no-option approach hurts the affected family and does nothing to promote rehabilitation. For example, why not place these individuals on probation, make them report regularly, and keep an eye on them while the threat of deportation hangs over their head? Use deferred prosecution agreements -- as we do with white collar criminals -- where we monitor BEHAVIOR compliance for years before charges are dropped. Place them in diversion programs or drug rehabilitation programs. Give state court judges a say -- as they once had -- in whether they think the person should be deported. Read more...
From the Immigrant Legal Resource Center:
Today Governor Jerry Brown signed into law a provision that will make a California misdemeanor have a maximum possible sentence of 364 days. See text of SB 1310, creating Cal Penal Code § 18.5, below. It appears that the law will go into effect on January 1, 2015. Congratulations and thanks to State Sen. Ricardo Lara and the advocates who made this happen.
This will provide crucial help to immigrants convicted of minor offenses, in at least three ways:
Deportable. A noncitizen is deportable for a single conviction of a crime involving moral turpitude committed within five years of admission, if the offense has a potential sentence of one year or more. INA § 237(a)(2)(A), 8 USC § 1227(a)(2)(A). As of the effective date, a single California misdemeanor conviction will not cause deportability under this ground, because it will carry a maximum possible sentence of 364 days.
Relief. Currently, conviction of a single crime involving moral turpitude is a bar to “10-year” cancellation for non-permanent residents, unless the person has committed only one moral turpitude offense, and the offense carries a potential sentence of less than a year. See Matter of Cortez, 25 I&N Dec. 301 (BIA 2010); Matter of Pedroza, 25 I&N Dec. 312 (BIA 2010), discussing INA 240A(b)(1), 8 USC § 1229b(b)(1). As of the effective date, a single California misdemeanor conviction will not be a bar under this provision because it will carry a maximum possible sentence of 364 days.
Aggravated Felony. Conviction of certain offenses becomes an aggravated felony only if a sentence of a year or more is imposed. This includes, among others, a federally-defined crime of violence, theft, receipt of stolen property, obstruction of justice, forgery, etc. See INA 101(a)(43), 8 USC 1101(a)(43). California misdemeanors will not have the potential to become aggravated felonies because a sentence of a year cannot be legally imposed. In addition, a RICO offense becomes an aggravated felony if it carries a potential sentence of a year. INA § 101(a)(43)(J).
The new law will control “wobbler” offenses that are defined as misdemeanors. Under California law, an alternate felony-misdemeanor (“wobbler”) offense is a misdemeanor if it is designated as, or reduced to, a misdemeanor. Cal Penal Code § 17. The Ninth Circuit specifically recognizes that such a conviction has the maximum possible sentence of a California misdemeanor. LaFarga v. INS, 170 F.3d 1213 (9th Cir. 1999); Garcia-Lopez v. Ashcroft, 334 F.3d 840 (9th Cir. 2003). Under the new law, that maximum possible sentence will be 364 days.
Although some may investigate an argument that this should be applied retroactively, California criminal defenders should assume that according to the language of the bill, the law is not in effect yet. Defenders need to continue to use strategies such as pleading to “attempt” to commit a moral turpitude offense, or pleading to a six-month misdemeanor or other alternate offense, in order to avoid the one-year potential sentence on a crime involving moral turpitude. This will be necessary until the new definition of misdemeanor comes into effect, which we believe will be January 1, 2015.
TEXT OF SB 1301
Section 18.5 is added to the Penal Code, to read:
18.5. Every offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days.
“An Urgent Need: Unaccompanied Children and Access to Counsel in Immigration Proceedings” by Annie Chen of the Vera Institute is a timely article about the need for a right to counsel for unaccompanied minors.
Well-managed immigration can be a windfall for local economies by creating jobs and fueling growth, fostering innovation, and bringing in new revenue. But these benefits are neither automatic nor do they accrue evenly across society. Highly skilled and entrepreneurial migrants tend to flock to vibrant metropolises, financial hubs, or tech clusters, while other regions may struggle to attract and retain native and foreign workers alike.
Meanwhile, increasing mobility has brought new challenges, which are also asymmetrically distributed. Many cities, even those experiencing new dynamism and growth, have to contend with community tensions arising over the allocation of often scarce public resources such as housing, social welfare, and health services, as well as difficult-to-address problems of poverty, residential segregation, and social exclusion.
While cities and regions experience both the positive and negative effects of immigration firsthand, they are typically at arm’s length, at best, from the policy reins that enable and shape these movements. As MPI Co-Founder and Transatlantic Council on Migration Convenor Demetrios G. Papademetriou writes in Migration’s Local Dividends: How Cities and Regions Can Make the Most of Immigration, immigration policies are rarely calibrated to regional, let alone local, needs.
In a new Transatlantic Council Statement resulting from the 11th plenary meeting of the Council, Dr. Papademetriou offers recommendations on how policymakers at all levels can work together to get more out of immigration. Among the principles for better multilevel governance of migration: paying more attention to the needs and concerns of regions and localities with respect to immigration; institutionalizing systems for better national-local cooperation and private-sector involvement; scaling up creative solutions; and creating rapid-response systems for concentrated challenges.
Cuéllar is the Director of Stanford's Freeman Spogli Institute for International Studies and a Senior Fellow at the Institute, the Stanley Morrison Professor of Law at Stanford Law School, and Professor (by courtesy) of Political Science. Cuéllar’s research and teaching focus on administrative law and governance, public organizations, and transnational security.
A member of the Stanford faculty since 2001, Cuéllar has worked in two presidential administrations, served as Co-Director of Stanford’s Center for International Security and Cooperation, and has an extensive record of involvement in public service. During 2009-2010, he served as Special Assistant to the President for Justice and Regulatory Policy at the White House. Among other issues, Cuéllar worked on enhancing food safety standards, improving public health agencies, law enforcement and sentencing policy, regulatory transparency, immigration, and the Quadrennial Homeland Security Review. Before working at the White House, he co-chaired the Obama-Biden Transition’s Immigration Policy Working Group. During the second term of the Clinton Administration, he worked at the U.S. Department of the Treasury as Senior Advisor to the Under Secretary for Enforcement. In July 2010, the President appointed him to the Council of the Administrative Conference of the United States, an independent agency charged with improving the efficiency and fairness of federal regulatory programs. From 2011 to early 2013, he co-chaired the Department of Education’s Equity and Excellence Commission. A
fter graduating from Calexico High School in California’s Imperial Valley, he received an A.B. magna cum laude from Harvard, a J.D. from Yale Law School, and a Ph.D. in political science from Stanford. He clerked for Chief Judge Mary M. Schroeder of the U.S. Court of Appeals for the Ninth Circuit, and is a member of the American Law Institute and the Council on Foreign Relations. Key Works
Mario Andretti is considered one of the greatest racecar drivers in the sport’s history. Born in 1940 in Montona, Italy, he was inspired as a child by the Italian Grand Prix and built his first racecar as a teenager in America. Over a five-decade career, Andretti won numerous races, including the Formula One World Championship, the Daytona 500, and the Indianapolis 500, excelling in virtually every type of car and track. He has published three autobiographies and is currently at work on a number of business ventures.
Former Attorney General during the Administration of George W. Bush, Alberto Gonzales is now dean and law professor at Belmont University College of Law in Nashville, Tennessee.
As Attorney General, Gonzales was involved in the nominations and confoirmations of Chief Justice Roberts and Justoice Alito to the Supreme Court. By most accounts, as Attorney General, Gonzales had a checkered record on immigration, national security measures (including support for "enhanced interrogation techniques"), and surveillance.
Dean Gonzales is writing on some interesting topics that capitalizes on his experience in the Bush administration directl. Here are some of his articles abstracted on the Social Sciences Research Network:
In Search of Justice: An Examination of the Appointments of John G. Roberts and Samuel A. Alito to the U.S. Supreme Court and Their Impact on American Jurisprudence, William & Mary Bill of Rights, Vol. 22, No. 3, 2014, Belmont University College of Law Research Paper No. 2014-01
Drones: The Power to Kill, George Washington Law Review, Vol. 82, No. 1, 2013, Belmont University College of Law Research Paper No. 2014-03
Waging War Within the Constitution, 42 Tex. Tech. L. Rev. 843, Belmont University College of Law Research Paper No. 2014-02
No Right at All: Putting Consular Notification in Its Rightful Place after Medellin, Florida Law Review, Forthcoming, Belmont University College of Law Research Paper No. 2014-04
An Immigration Crisis in a Nation of Immigrants: Why Amending the Fourteenth Amendment Won't Solve Our Problems, Minnesota Law Review, Vol. 96, p. 1859, 2012
This Call for Papers is for on an edited volume (reference encyclopedia), focusing on immigration / migration in the U.S.
Submission Process: Submit subject interest and essays to any of the following editors:
Dr. Alvaro Huerta (firstname.lastname@example.org)
Dr. Norma Iglesias-Prieto (email@example.com)
Dr. Donathan Brown (firstname.lastname@example.org)
Submission Deadline: September 19, 2014 (early submissions encouraged)
We seek essays on Latina/o immigrants and beyond. We are open to a limited amount of other immigration-related essays not included in our list of topics.
Immigration Article of the Day: (When) Race Matters: How Undocumented Immigrant Race and Place Shape Immigration Policy Attitudes by L. Jason Anastasopoulos
(When) Race Matters: How Undocumented Immigrant Race and Place Shape Immigration Policy Attitudes by L. Jason Anastasopoulos Harvard University - Harvard Kennedy School (HKS); University of California, Berkeley - Center for the Study of Law and Society July 2, 2014
Abstract: Would Americans react differently to undocumented immigrants if they were a different race? Does racial threat motivate support for anti-immigration laws? I answer these questions by manipulating the race and geographical proximity to American citizens of a fictional undocumented Mexican immigrant in a national U.S.-based survey experiment. I find that when respondents are exposed to a non-Caucasian immigrant, support for anti-immigration laws increases relative to an otherwise identical Caucasian immigrant. These reactions to the immigrant's race are observed only when respondents believe that the immigrant resides in their city and state, suggesting that geographical proximity triggers racial threat. Assessments of the effect of geographical proximity and race on relevant economic, cultural and political outcomes reveals that these results are best explained by symbolic prejudice.
Monday, July 21, 2014
The Washington Times reprots that the White House is taking partial credit for the drop in the number of unaccompanied children arriving at the U.S.-Mexico border in recent weeks. White House press secretary Josh Earnest told reports that preliminary data show that, last month, an average of 355 children were apprehended each day along the border in the Rio Grande Valley. Thus far in July, that number has dropped to an average of about 150 a day.
From the Bookshelves: Haven: The Dramatic Story of 1,000 World War II Refugees and How They Came to America by Ruth Gruber
The powerful story of a top-secret mission to rescue one thousand European refugees in the midst of the Second World War. In 1943, nearly one thousand European refugees from eighteen different countries set out on a journey for asylum in the United States. Accompanying them was Ruth Gruber, who with the backing of the United States government, was made a simulated General to escort the refugees on their secret mission across the Atlantic from a port in Italy to a camp in Oswego, New York-a dangerous endeavor that carried the threat of Nazi capture with each passing day. While on board the ship that was to transport them to America, Gruber recorded the stories of the refugees, and she presents them in vivid detail here. The result is a poignant and engrossing story of suffering under Nazi persecution and bravery in the face of the most overwhelming of circumstances.
OECD Economics Department Working Papers, International Migration: The Relationship with Economic and Policy Factors in the Home and Destination Country
Unfavourable demographic trends in many OECD countries threaten the sustainability of potential labour resources, GDP growth and fiscal positions. One factor that is expected to mitigate these trends is continued inflows of migrant workers from low income economies. However, a rapid catch-up in productivity and wages in these traditional source countries vis-à-vis the OECD may weaken economic incentives for migration and imply a transition away from current migration patterns. This paper uses data of the high-skilled and low-skilled migrant stock between 92 origin and 44 destination countries to highlight the relationship between economic factors and migration. The paper also attempts to uncover links with policy and demographic factors prevailing in the origin and destination countries. The analysis suggests that higher skill-specific wages in the destination country are associated with more migration. This relationship appears to be particularly strong for migrants from middle-income countries, supporting theories of an inverted-U relationship between origin country economic development and the propensity to migrate. Policy differences between the destination and origin also appear important, for example in terms of regulations on businesses and labour markets, along with the relative quality of institutions. In some instances, the effects on high-skilled and low-skilled migrants differ markedly. Combining the estimated coefficients from the model with the skill-specific wage profile from the OECD long-term growth projections highlights the potential for weaker future migrant flows to OECD countries than implied by past trends and embedded in official projections.
The Border Children---They are Not Criminals and They Need Counsel
Our nation's response to this humanitarian crisis at the border has not been clear or coherent. From the right and left the voices which have defined the debate have been guilty of the same underlying misconception: that these children must be "criminals" and that they need to be returned to their home countries at the earliest possible time. However this is not true. First, children (and even adults fleeing persecution) are not criminals if they are at the border and declare themselves afraid to return home. It is a flagrant violation of international law and also our domestic laws (The Refugee Act of 1980) to brand them criminals and fail to fully consider their claims. It is a violation of not only our legal but ethical duties to misapprehend their status, expedite their removals, and ignore their pleas for help.
To frame the debate as merely an enforcement issue misses the crucial bedrock issue: whether or not these kids are entitled to protection as refugees (or applicants for asylum since they are now within our borders). We also have other ways to deal with persons who approach our border and face dire consequences if returned. One possible way to deal with the issue is through temporary protected status (TPS), a form of humanitarian relief. TPS is a form of relief which Congress can create for certain persons from specified countries which are facing upheavals. This status is temporary but humanitarian in nature. It is another possibility which no one is talking about. TPS has been available in the past for persons from El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan and Syria, depending on several other factors such as the exact dates of entry of the applicant, the registration period, and criminal history, if any.
People have also focused too narrowly on the assumption that "asylum" is the sole and exclusive remedy for all these children. This assumption misses the mark. It assumes, for example, that the whole range of other relief, depending on many variables and each case’s specific circumstances, would be unavailable to them. It is precisely counsel's job to evaluate in individual cases what relief there may be, to advise one's client about a variety of different types of relief. While there are limits (the so-called "cap") on the number of T-visas for persons who have been trafficked and U visas for crime victims, this does not exhaust the possible types of relief. There is a possibility that some may be eligible for Special Immigrant Juvenile (SIJ) status. SIJ petitions can be filed for certain kids who have been abused, abandoned or neglected by one or both parents. But there is no possibility of such relief for these children where there is no counsel, since SIJ requires that a predicate state court order be obtained from a state court. No child without counsel is going to be able to navigate the intricacies of family court, let alone the immigration court process.
This brings me to the paradoxically-named "HUMANE" Act recently proposed by Representative Cuellar and Senator Cornyn. The idea that a decision on these kids' claims should be rushed is severely flawed. Under the proposed law, the hearing before the immigration judge is to occur within 7 days after the initial 72 hour initial period whereby the children are placed with HHS. There is no question that 7 days does not leave children (or anyone for that matter) sufficient time to secure legal representation. The children then would be deported (likely) or provided an expedited date for a final hearing. Having represented many children in immigration courts and administrative contexts, there is absolutely no way that a child will have the ability to communicate their claims with the court sufficiently on their own to allow for a full and fair proceeding. It is just not possible given the limitations of a child's lack of sophistication. Such a "HUMANE" Act is therefore -- on its a face -- a blatant violation of due process. Such due process, it is well-settled, is owed to immigrants who appear before the immigration courts. The "expedited" nature of these proposed proceedings would have the strange and untoward consequence of providing less due process protection to children versus similarly situated adult respondents.
A Syracuse University study recently reported the latest statistics concerning children facing removal proceedings. (The report is available online here: http://trac.syr.edu/immigration/reports/359/). This report presents crucial information missing from the debate thus far. According to the report, the outcome if an attorney is present is as follows: "In almost half (47%) of the cases in which the child was represented, the court allowed the child to remain in the United States." If the child had no attorney the following outcome resulted: "Where the child appeared alone without representation, nine out of ten children were ordered deported — 77 percent through the entry of a removal order, and 13 percent with a VD order. One in ten (10%) were allowed to remain in the country." From these recent statistics tracking approximately 100,000 cases, the conclusion is clear: with representation the chances are about 50/50 a child may be able to obtain relief. Without an attorney, their chances drop to 1 in 10.
To the extent we are painting with a broad brush, this is error. Pope Francis got it right when he said: "This humanitarian emergency requires, as a first urgent measure, these children be welcomed and protected. These measures, however, will not be sufficient, unless they are accompanied by policies that inform people about the dangers of such a journey and, above all, that promote development in their countries of origin." The underlying worry, expressed by both the right and left, that granting relief or seeming to welcome those in need will make us seem weak is misguided. It is true that we should devote resources to helping other countries with their gang and other problems. It is true that we should warn intended immigrants, refugee children and their parents of the extreme dangers of travel. But once they are here, they are our responsibility and as a nation of compassion and commitment we should demand no less.
Yahoo! News reports that the leaders of Honduras, El Salvador and Guatemala plan to ask US President Barack Obama for help funding projects to stem immigration during White House talks next week. The presidents will meet Friday over the humanitarian crisis triggered by some 57,000 unaccompanied minors from Central America who have traveled illegally to the United States since October.
Morley Safer began his American career at CBS as a correspondent during the Vietnam War. After making a name for himself for his willingness to report on controversial aspects of the war, he joined the staff of 60 Minutes, helping it become the only nonfiction program to be ranked consistently in Nielsen’s top 10 rated shows. Among other honors, he has won 12 Emmies and three Peabody Awards.
Immigration Article of the Day: Hot Pants at the Border: Sorting Sex Work from Trafficking by Sharon Pickering and Julie Ham
Hot Pants at the Border: Sorting Sex Work from Trafficking by Sharon Pickering (University of Oxford; Monash University - Faculty of Law) and Julie Ham (University of Oxford - Border Criminologies), The British Journal of Criminology, 54(1): 2-19
Abstract: The role of borders in managing sex work is a valuable site for analysing the relationship between criminal justice and migration administration functions. For the purposes of this article, we are concerned with how generalised concerns around trafficking manifest in specific interactions between immigration officials and women travellers. To this end, this article contributes to a greater understanding of the micro-politics of border control and the various contradictions at work in the everyday performance of the border. It uses an intersectional analysis of the decision-making of immigration officers at the border to understand how social differences become conflated with risk, how different social locations amplify what is read as risky sexuality, and how sexuality is constructed in migration. What the interviews in our research have demonstrated is that while the border is a poor site for identifying cases of trafficking into the sex industry, it is a site of significant social sorting where various intersections of intelligence-led profiling and everyday stereotyping of women, sex work and vulnerability play out.
Sunday, July 20, 2014
NPR reports on a connection between the Central American migrants of yesterday and those of the new millennium. During the Central American civil wars of the 1970s and 1980s, U.S. aid groups were established to assist the large number of migrants. Now those same groups, like El Rescate in Los Angeles, are helping to assist the large number of unaccompanied Central American children unlawfully entering the U.S.