Sounds like the big sell-out is coming. Oh well. The voters did what we could. If Trump sells out, it's not our fault. https://twitter.com/kausmickey/status/804523899157291008 …
Monday, December 5, 2016
The Beast of Burden in Immigration Bond Hearings by Mary Holper, Boston College - Law School November 21, 2016 Case Western Reserve Law Review, 2016
Abstract: This term, in the case of Jennings v. Rodriguez, the Supreme Court will consider whether mandatory detention applies to noncitizens whose removal proceedings have become prolonged. Should the Court grant these detainees a right to a bond hearing, it will decide who should bear the burden of proof at that hearing. Currently, the approximately 60,000 detainees per year who are eligible for a bond hearing must bear the burden of proving that they are not a danger to the community or a flight risk. The government, which took away their liberty, need not justify why they should remain detained. Yet, in the removal proceedings in which these bond hearings take place, the government must prove removability by clear and convincing evidence. It is the government that seeks law’s intervention in both contexts, yet it only needs to justify its deportation decision, not its detention decision. In this article, I examine the burden of proof in bond proceedings. I apply theories for why burdens of proof exist in the law to demonstrate why the government should bear the burden of proof. I also argue that in order to ensure that such detention comports with Due Process, the government must prove, by clear and convincing evidence, that a detainee is dangerous.
Jennifer Medina of the New York Times reports that California lawmakers are moving to enact sweeping legislation to protect immigrants from deportation, the first sign of an effort to resist immigration policies championed by President-elect Donald J. Trump. The measures, which will be introduced today, would provide free legal help to undocumented immigrants during deportation proceedings, offer more assistance in criminal court, and further limit local law enforcement’s cooperation with federal immigration agents. The measures contrast sharply with the kind of policies that Mr. Trump pressed on the campaign trail. Stay tuned!
This report last week from the ACLU on a border search of a Canadian photojournalist should serve as a warning to everyone concerned about press freedom these days. Ed Ou is a renowned photographer and TED senior fellow who has traveled to the United States many times to do work for The New York Times, Time magazine, and other media outlets. Last month, Ed was traveling from Canada to the U.S. to report on the protests against the Dakota Access pipeline in Standing Rock, North Dakota, when he was taken aside for additional inspection.
Although Ed clearly identified himself as a journalist on his way to Standing Rock, the CBP officers detained him for more than six hours and subjected him to multiple rounds of intrusive interrogation. They questioned him at length about his work as a journalist, his prior professional travel in the Middle East, and dissidents or “extremists” he had encountered or interviewed as a journalist. They photocopied his personal papers, including pages from his handwritten personal diary. They also asked Ed to unlock the three mobile phones he uses to communicate in different locations worldwide. Ed told them he couldn’t agree to do that because of his ethical obligation as a journalist to protect his confidential sources. The officers took the phones, and when they returned them several hours later, the tamper tape covering the phones’ SIM cards was altered or missing, suggesting that the officers had removed and possibly copied the cards.
After all that, the officers denied Ed admission to the country without giving him a valid reason. One of the officers said he couldn’t provide any details. Another officer said that Ed’s refusal to grant access to his mobile phones “did not help.”
IOM rose from the ashes of World War Two 65 years ago. In the battle-scarred continent of Europe, no government alone could help survivors who wanted no more than an opportunity to resume their lives in freedom and with dignity. The first incarnation of IOM was created to resettle refugees during this post-war period.
IOM's history tracks the man-made and natural disasters of the past 65 years - Hungary 1956; Czechoslovakia 1968; Chile 1973; the Viet Nam boat people 1975; Kuwait 1990, Kosovo and Timor 1999; the 2003 invasion of Iraq; the 2004 Asian tsunami, the 2005 Pakistan earthquake and Haiti’s 2010 earthquake.
IOM quickly grew from a focus on migrant and refugee resettlement to become the world’s leading intergovernmental organization dedicated to the well-being, safety and engagement of migrants.
2016 has been a landmark year for migration. IOM and UN Member States grasped a historic opportunity to officially bring IOM into the UN system, giving a much-needed voice to migrants in the international community. And on 19 September, the United Nations hosted the first ever Summit on Refugees and Migrants.
Over the years, IOM has grown into 165 Member States. Its global presence has expanded to over 400 field locations. With over 90 percent of its staff deployed in the field, IOM has become a lead responder to the world’s worst humanitarian emergencies.
Today, one in every seven people is a migrant - be it a refugee, a student, a migrant worker or a professional who moves between international postings.
Today, as we look forward to the future, we continue to uphold the beliefs that brought us into being 65 years ago: that migration builds resilience and that migrants are agents of change and development.
Immigration Law guru Stanley Mailman 86, died peacefully at home in Manhattan on December 3. Stanley received a BA and JD from Cornell University, and practiced immigration law for over five decades. He is the author of Immigration Law and Procedure.
Here is an obit written by Stephen Yale-Loehr:
Stanley Mailman, a prominent immigration lawyer and former partner at Satterlee, Stephens, Burke & Burke, passed away in his home on December 3 surrounded by his family. He was 86.
Stanley received both his B.A. and J.D. from Cornell University and his LL.M. in international law from New York University. He was a past president of the American Immigration Lawyers Association (AILA) and of the Consular Law Society, and served on the boards of the Lawyers Committee for Human Rights (now Human Rights First), the American Foreign Law Association, and the International Rescue Committee. He received numerous AILA awards, including the Edith Lowenstein Award for excellence in immigration law and the Elmer Fried Award for scholarship.
Stanley was a coauthor of Immigration Law and Procedure, the leading 21-volume immigration law treatise, for 25 years. He wrote a regular immigration law column for the New York Law Journal for 30 years.
Stanley was born in New York City in 1930. His parents had immigrated to the United States at the end of the Great War from what was then Russia. His dad Nathan was a skilled furrier. His mother Helen was an enterprising milliner and business owner.
Stanley began practicing immigration law under the tutelage of Elmer Fried, one of the early experts in the emerging field. Stanley would go on to become a pioneer and scholar of immigration and asylum law.
Stanley was a strong advocate for the civil rights of immigrants. Three examples follow.
In 1980, during the Haitian refugee crisis, Stanley joined a team of lawyers to successfully advocate for imprisoned refugees being denied proper representation and fair hearings. In Bertrand v. Sava, he and others successfully argued that federal courts may exercise habeas corpus jurisdiction to review allegations that an immigration official abused his discretion in denying parole to detained Haitians.
In another case, Tibke v. INS, Stanley successfully argued that the immigration agency interpreted the adjustment of status provision in the Immigration and Nationality Act too narrowly.
And in Stokes v. INS, Stanley filed an amicus brief in a case successfully challenging the constitutionality of certain marriage-related green card procedures used by the New York City immigration office. The case ultimately ended in a consent decree requiring the immigration agency to follow certain interview procedures in marriage-related green card cases.
Stanley was a witty and active writer and a stickler for proper English, written in clear and simple language. An early proponent of gender-neutral language, he often used the feminine third person “she” in professional writing.
Personally, Stanley was known for his unflappable ethics, and believed in the truth in all aspects of personal and professional life. He held himself to the highest standards, yet was non-judgmental in his relationships.
Stanley met his wife Mary Ann in 1963. They were married 4 months later by a justice of the court in Lower Manhattan. They lived on the Upper West Side for 47 years, where they raised their two sons.
Stanley was a frequent jogger on the Central Park reservoir, an accomplished golfer, and a lover of apples. He was a dedicated family man, proud grandfather, and loving uncle to 14 nieces and nephews.
He is survived by his wife of 53 years, Mary Ann, sons Joshua and Alex, daughter-in-law Danielle and granddaughter, Lydia, and his brother Philip.
Funeral services will be held at 11 am on Tuesday December 6 at Plaza Jewish Community Chapel. In lieu of flowers the family requests that donations be made to the immigration section of Sanctuary for Families (https://www.sanctuaryforfamilies.org) or to Cornell University Law School (http://www.lawschool.cornell.edu) for its immigration and asylum programs.
"President-elect Donald Trump says he will make “sanctuary cities” help deport immigrants by taking away their federal funding if they don’t change their policies. The good news is that he and Congress can’t do it -- not without violating the Constitution.
Two core rules of federalism preclude Trump’s idea: The federal government can’t coerce states (or cities) into action with a financial “gun to the head,” according to Supreme Court precedent developed by Chief Justice John Roberts in the 2012 Affordable Care Act case. And federal officials can’t “commandeer” state officials to do their work for them under a 1997 decision that involved gun purchases under the Brady Act.
Behold the revenge of conservative federalism: Judge-made doctrines developed to protect states’ rights against progressive legislation can also be used to protect cities against Trump’s conservative policies. Ain’t constitutional law grand?"
Sunday, December 4, 2016
Donald Trump, among others, have made twitter a source of news, quotes, and controversy. Conservative pundit Ann Coulter has been getting attention for this tweet last week:
Sounds like the big sell-out is coming. Oh well. The voters did what we could. If Trump sells out, it's not our fault. https://twitter.com/kausmickey/status/804523899157291008 …
IMMIGRATION JUDGES AND U.S. ASYLUM POLICY, by Banks Miller, Linda Camp Keith, and Jennifer S. Holmes (University of Pennsylvania Press, 2016)
Although there are legal norms to secure the uniform treatment of asylum claims in the United States, anecdotal and empirical evidence suggest that strategic and economic interests also influence asylum outcomes. Previous research has demonstrated considerable variation in how immigration judges decide seemingly similar cases, which implies a host of legal concerns—not the least of which is whether judicial bias is more determinative of the decision to admit those fleeing persecution to the United States than is the merit of the claim. These disparities also raise important policy considerations about how to fix what many perceive to be a broken adjudication system.
With theoretical sophistication and empirical rigor, Immigration Judges and U.S. Asylum Policy investigates more than 500,000 asylum cases that were decided by U.S. immigration judges between 1990 and 2010. The authors find that judges treat certain facts about an asylum applicant more objectively than others: facts determined to be legally relevant tend to be treated similarly by judges of different political ideologies, while facts considered extralegal are treated subjectively. Furthermore, the authors examine how local economic and political conditions as well as congressional reforms have affected outcomes in asylum cases, concluding with a series of policy recommendations aimed at improving the quality of immigration law decision making rather than trying to reduce disparities between decision makers.
Here is a review of the book, which concludes that it is an important contribution to the literature.
Abstract: Where the line is drawn between noncitizens who are incorporated into American society and those who are not has changed greatly over time, resulting in the creation of a gray area where certain immigrants fall between those with lawful immigration status and those with no status at all. These individuals are granted “lawful presence” which permits them to remain and work in the United States, but does not provide them with a path to citizenship. The number of people in this ambiguous category continues to grow and may dramatically expand again soon as President Obama recently exerted broad scale executive action in response to Congress’ refusal to reform immigration laws.
This article looks at the ways immigration law grants lawful presence and the changing responses of the legal system in dealing with this “gap” between status and no-status. The recent exclusion of Deferred Action for Childhood Arrivals from the Affordable Care Act and other essential health insurance programs serves as a case study to demonstrate how inconsistently laws handle this middle category of people today. The consequences of such a narrow division between who receives benefits and who does not is that the gap between status and no-status widens, encouraging state lawmakers to further discriminate against this group. I argue that the struggle over where the line should be drawn to decide which noncitizens should and should not have access to essential rights and benefits is exacerbated by the tension between a progressive President and a conservative Congress. In a system where the Executive branch may confer lawful presence but only Congress can confer lawful status, hundreds of thousands of people are caught in the gap. I conclude by arguing that as the number of people in this gray area continues to grow, courts should lean toward inclusion rather than exclusion of lawfully present noncitizens in resolving this tension in the law.
Saturday, December 3, 2016
WaPo reports that Congress struck a deal this week to "authorize an additional 1,500 special immigrant visas (SIV) for Afghans who helped the U.S. mission in Afghanistan, and extend the program through 2017" despite "objections of lawmakers skeptical of the program."
Right now I'm actually working on a new paper exploring why it is that the United States is not an intelligence superpower. Here we are, with an incredibly diverse immigrant population coming from more than 200 countries around the world. And yet our intelligence services consistently fail in their objective to understand the world as it is. That failure, more often than not, stems from our inability to understand the language and culture of foreign nations whose interests are inimical to our own.
We should we using immigration law to further national security interests. And the Afghani interpreter program is precisely the type of finely-tuned effort to use immigration law we need to strengthen intelligence gathering and analysis. The fact that it is opposed by legislators is appalingly short-sighted.
And that's not even taking into consideration the human costs of failing to care for our interpreters. I'll let John Oliver bring that second point home.
This book describes the experiences of undocumented migrants, all around the world, bringing to life the challenges they face from the moment they consider leaving their country of origin, until the time they are deported back to it. Drawing on a broad array of academic studies, including law, interpretation and translation studies, border studies, human rights, communication, critical discourse analysis and sociology, Robert Barsky argues that the arrays of actions that are taken against undocumented migrants are often arbitrary, and exercised by an array of officials who can and do exercise considerable discretion, both positive and negative.
Employing insights from a decade-long research project, Barsky also finds that every stop along the migrant’s pathway into, and inside of, the host country is strewn with language issues, relating to intercultural communication, interpretation, gossip, hearsay, and the challenges of peddling of linguistic wares in the social discourse marketplace. These language issues are almost always impediments to anodyne or productive interactions with host country officials, particularly on the "front-lines" where migrants encounter border patrol and law enforcement officers without adequate means of communicating their situation or understanding their rights. Since undocumented people are categorized as ‘illegal’, they can be subjected to abuse and exploitation by host country officials, who can choose to either tolerate or punish them on the basis of unpredictable, changeable, and even illusory or "arbitrary" laws and regulations.
Citing experts at every level of the undocumented immigrant apparatuses worldwide, from public defenders to interpreters, Barsky concludes that the only viable policy to address prevailing abuses and inequalities is to move towards open borders, an approach that would address prevailing issues and, surprisingly, provide security and economic benefits to both host and home countries.
Friday, December 2, 2016
University of California, Los Angeles (UCLA) - School of Law; University of Oxford - Border Criminologies, November 21, 2016, 95 Texas Law Review (Forthcoming), UCLA School of Law, Public Law Research Paper No. 16-52
Abstract: The increasing focus of federal immigration enforcement on persons accused of crimes has hastened the creation of local criminal justice policies that govern the treatment of immigrants. In this Article, I report my findings from public records requests sent to prosecutor offices, city police departments, and county sheriffs in four large counties in California: Alameda, Los Angeles, Santa Clara, and Ventura. I analyze the text of three types of written criminal justice policies that emerged in every county: (1) police policies that prohibit inquiry into immigration violations during routine policing; (2) prosecutor policies that consider deportation penalties in negotiating pleas for low-level offenders; and (3) sheriff policies that reject certain federal requests to detain immigrants in their jails for deportation purposes. All of these policies function to protect at least some immigrants who come into contact with the criminal justice system from possible deportation. Yet, close analysis of these policies — which I refer to as “immigrant protective policies” — also reveals key differences in how these protections are structured and, hence, in which immigrants are covered by these policies. In short, some policies are more protective than others.
This Article argues that the protective gaps in these local policies have evolved against a backdrop of an incomplete set of organizing principles for advancing such policies. The justifications most often put forth by advocates, scholars, and policymakers in favor of protective criminal justice policies are community policing, immigrant integration, and budgetary constraints. Each of these justifications, while important, has supplied only a partial framework for formulating criminal justice policy that decouples local policing and prosecuting from federal immigration enforcement priorities. To help guide the development of next-generation protective policies, which will be particularly crucial to pro-immigrant states and localities during the administration of President-elect Donald Trump, this Article explores an alternative justification for immigrant protective policies — immigrant equality. Immigrant equality seeks to insulate noncitizens from harsher forms of punishment, racial and ethnic profiling, and other substantive and procedural distortions that immigration enforcement imposes on criminal cases involving noncitizens. To illustrate how adherence to a norm of immigrant equality would further refine and shape next-generation protective policies, this Article applies the approach to current criminal justice issues facing localities around the country.
On Wednesday, the Supreme Court heard oral arguments in Jennings v. Rodriguez, a major immigration detention case. The transcript to the arguments can be found here and the audio can be found here. My recap of the argument on SCOTUSBlog can be found here. Here is my concluding paragraph to my recap of the argument:
"In sum, both sides in yesterday’s argument had some explaining to do to the justices, who seemed troubled by two very different aspects of the case. On the one hand, as even the government seemed to concede, indefinite detention without a hearing is difficult to justify as a constitutional matter. At the same time, however, some justices worried that the 9th Circuit had acted more like a legislature than a court in fashioning the injunction requiring bond hearings every six months. Based on the argument, it may prove difficult for a majority of an eight-justice court to agree on a rationale for deciding the case."
The Department of Homeland Security should continue relying on private prison contractors to maintain its immigration detention practices, a key subcommittee recommends in a draft report. Though the group criticizes the existing oversight of immigration detention centers, it takes a more critical stance toward county jails than privately-owned or operated facilities. See the CrImmigration blog report on this development.
McKinsey Global Institute (MGI), People on the move: Global migration’s impact and opportunity
Migration is a key feature of a more interconnected world. Despite significant concerns about its economic and social implications, the movement of people across the world’s borders boosts global productivity. The countries that prioritize integration stand to make the most of this potential—improving outcomes for their own economies and societies as well as for immigrants themselves.
More than 90 percent of the world’s 247 million cross-border migrants moved voluntarily, usually for economic reasons. The remaining 10 percent are refugees and asylum seekers who have fled to another country to escape conflict and persecution. Roughly half of these 24 million refugees and asylum seekers are in the Middle East and North Africa, reflecting the dominant pattern of flight to a neighboring country. But the recent surge of arrivals in Europe focused the developed world’s attention on this issue.
Roughly half of the world’s migrants have moved from developing to developed countries, where immigration is a key driver of population growth. From 2000 to 2014, immigrants contributed 40 to 80 percent of labor force growth in major destination countries.
Workers moving to higher-productivity settings boosts global GDP. MGI estimates that migrants contributed roughly $6.7 trillion, or 9.4 percent, to global GDP in 2015—some $3 trillion more than they would have produced in their origin countries. North America captured up to $2.5 trillion of this output, while up to $2.3 trillion went to Western Europe. Migrants of all skill levels make a positive economic contribution, whether through innovation, entrepreneurship, or freeing up natives for higher-value work.
Employment rates are slightly lower for immigrants than for native workers in top destinations, but this varies by skill level and by region of origin. Refugees typically take longer than voluntary migrants to integrate into the destination country. Immigrants generally earn higher wages by moving, but many studies have found their wages remain some 20 to 30 percent below those of comparable native-born workers.
Extensive academic evidence shows that immigration does not harm native employment or wages, although there can be short-term negative effects if there is a large inflow of migrants into a small region, if migrants are close substitutes for native workers, or if the destination economy is experiencing a downturn.
The costs of managing entry are typically less than 0.2 percent of GDP across major destinations but can escalate when there is a large wave of refugees. Most studies indicate that immigrants have a small but net positive fiscal impact in their destination countries and play a positive role in easing pension burdens.
The economic, social, and civic dimensions of migrant integration need to be addressed holistically. An examination of 18 major destination countries reveals that not a single one is addressing all three of these aspects effectively. We identify more than 180 promising interventions from around the world that can improve integration outcomes. Some of their guiding principles include changing the narrative to recognize the economic opportunity inherent in immigration; beginning integration interventions early and sustaining them over the long term; empowering local stakeholders to implement initiatives that work for their communities; making integration a two-way process between native-born and immigrant communities; and building partnerships with the private sector and NGOs.
Narrowing the wage gap between immigrant and native workers from 20–30 percent to 5–10 percent through better economic, social, and civic integration would translate into an additional $800 billion to $1 trillion in global output annually. The success or failure of integration across areas such as employment, education, health, and housing can reverberate for many years, influencing whether second-generation immigrants become fully participating citizens or remain in a poverty trap.
To complement this global perspective, a companion report takes a deeper look at how these issues are playing out in real time across Europe today. Europe’s new refugees: A road map for better integration outcomes examines the surge of 2.3 million refugees and asylum seekers who arrived in Europe during 2015 and 2016. Although this episode is only a small part of the broader global phenomenon, it presented Europe with the most dramatic wave of forced migration the continent has experienced since the aftermath of World War II.
This cohort is unique in some ways. More than half of the asylum seekers originally came from the war-torn regions of Afghanistan, Iraq, and Syria (exhibit). Their movement occurred in two steps: after initially fleeing to safety in a neighboring country, many found harsh conditions and subsequently undertook longer, and often perilous, journeys to Europe, hoping to find a more viable life. Given recent trends in the acceptance rates of asylum applications, we expect that roughly 1.3 million will attain refugee status, which grants them the right to stay—and many could decide to put down roots for the long term.
Thursday, December 1, 2016
This report offers the first detailed estimates of how a policy of mass deportation would affect specific industries. If all undocumented workers were immediately removed from the country, Edwards and Ortega forecast a decline of 9% in agricultural production and declines of 8% in construction and leisure and hospitality over the long term. These are the industries most dependent on undocumented labor. Relative to the overall economy, however, the most important effect would be a decline in manufacturing output of $74 billion over the long term, followed by somewhat more modest declines in wholesale and retail trade and financial activities.” (Chicago Tribune, Nov. 16, 2016).
Criminal prosecutions for immigration offenses have more than doubled over the last two decades, as national debates about immigration and criminal justice reforms became headline topics. What lies behind this unprecedented increase?
From Deportation to Prison unpacks how the incarceration of over two million people in the United States gave impetus to a federal immigration initiative—The Criminal Alien Program (CAP)—designed to purge non-citizens from dangerously overcrowded jails and prisons. Drawing on over a decade of ethnographic and archival research, the findings in this book reveal how the Criminal Alien Program quietly set off a punitive turn in immigration enforcement that has fundamentally altered detention, deportation, and criminal prosecutions for immigration offenses.
Patrisia Macías-Rojas presents a “street-level” perspective on how this new regime has serious lived implications for the day-to-day actions of Border Patrol agents, local law enforcement, civil and human rights advocates, and for migrants and residents of predominantly Latina/o border communities. From Deportation to Prison presents a thorough and captivating exploration of how mass incarceration and law and order policies of the past forty years have transformed immigration and border enforcement in unexpected and important ways.