Wednesday, October 10, 2018
The world's most powerful passport is..... Japanese! A group called Henley & Partners offers a "passport index" with "the most rigorous and sophisticated measure of global access." And right now, Japan is leading the global rankings.
As CNN reports, Japan owes its number 1 slot to the fact that its citizens can travel to 190 destinations around the globe without a visa or with "visa-on-arrival access."
Care to take a guess as to where the U.S. lands? It's hanging in at number 5. Apparently we've got 186 visa-free or visa-on-arrival destinations. Not too shabby.
Tuesday, October 9, 2018
As of June 30, 2018 Immigration and Customs Enforcement (ICE) held 44,435 individuals in custody. Individuals were being held in 217 detention facilities located in 180 U.S. counties spread across 43 states and 3 territories. The number of ICE detainees was up from 39,082 persons ICE held in custody at the end of FY 2015.
(June 30, 2018)
Case-by-case records on each of these 44,435 individuals held in ICE custody were recently obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University. These data provide a detailed snapshot of ICE custody practices. Highlights from this latest data are summarized below.
Who Is ICE Detaining?
The vast majority (58%) of individuals in ICE custody June 30 had no criminal record. An even larger proportion—four out of five—either had no record, or had only committed a minor offense such as a traffic violation.
This left just one out of five who had been convicted of what ICE classified as a felony. Of these only 16 percent were what ICE defines as a serious, or Level 1, offense. Even among Level 1 offenses ICE included crimes such as "selling marijuana" which many states have now legalized.
Thanks to Nolan Rappaport for the tip.
Politifact: Immigration in 5 charts: a 2018 midterm report. The five charts show:
1. border apprehensions down
2. immigration court backlog up
3. some separated families still have not been reunified
4. removals are trending downward
5. the number of diversity visas issued remains virtually unchanged
Here are some previous fact checks by Politifact:
A sampler of immigration claims, fact-checked
False: Rep. Raul Labrador, R-Idaho, claimed immigrants can apply for asylum at U.S. embassies or consulates abroad. (They must be in the United States.)
False: Trump claimed there are thousands of immigration judges. (There are fewer than 400.)
False: Trump claimed a "horrible law" required that children be separated from their parents "once they cross the Border into the U.S." (No such law.)
False: Matt Schlapp claimed Obama had same policy as Trump causing family separations. (Family separations under Obama were relatively rare.)
Mostly False: Trump claimed MS-13 gang members are being deported "by the thousands." (ICE doesn’t track MS-13 deportations. Overall, thousands of gang members of all affiliations have been deported.)
Pants on Fire: Speaking of the diversity visa program, Trump claimed that "they give us their worst people, they put them in a bin," and "the worst of the worst" are selected. (He mischaracterized the program and its requirements, which include background checks by the U.S. government.)
Brookings provides us with the latest basic facts about immigration to the United States:
- The foreign-born share of the U.S. population has returned to its late-19th-century level.
- The rising foreign-born share is driven by both immigration flows and low fertility of native-born individuals.
- About three-quarters of the foreign-born population are naturalized citizens or authorized residents.
- 80 percent of immigrants today come from Asia or Latin America, while in 1910 more than 80 percent of immigrants came from Europe.
- Immigrants are 4 times more likely than children of native-born parents to have less than a high school degree, but are almost twice as likely to have a doctorate.
- Immigrants are much more likely than others to work in construction or service occupations, but children of immigrants work in roughly the same occupations as the children of natives.
- Prime-age foreign-born men work at a higher rate than native-born men, but foreign-born women work at a lower rate than native-born women.
- Output in the economy is higher and grows faster with more immigrants.
- Most estimates show a small impact of immigration on low-skilled native-born wages.
- High-skilled immigration increases innovation.
- Immigrants contribute positively to government finances over the long run, and high-skilled immigrants make especially large contributions.
- Immigration in the United States does not increase crime rates.
Fernanda Jacqueline Davila, in Tegucigalapa, Honduras, earlier this year, has been in government custody since she was taken from her grandmother at the border in late July. Photo courtesy of the New York Times
Vivian Yee and Miriam Jordan in the New York Times report on the unthinkable -- a two-year old Honduran appears in immigration court. "Now that immigration controls have stiffened in response, more children than ever are in government custody, for far longer than they ever have been — weeks turning to months in shelters that were never meant to become homes.
The result is a new wave of children in the immigration courts across America. Though the exact figures are not known, lawyers who work with immigrants said the large number of migrant children now being held in detention has given rise to a highly unusual situation: more and more young children coming to court."
Monday, October 8, 2018
This Wednesday, the Supreme Court -- with newest Justice Brett Kavanaugh -- will hear arguments on Nielsen v. Preap, an immigrant detention case. Law professor Garrett Epps previews the case in The Atlantic. He sees it as a "high-stakes immigration case": "Nielsen v. Preap may determine whether thousands of longtime residents of the U.S. face indefinite detention without a hearing."
Sara Aridi in the New York Times has a feature on "Refugees and Migrants Tell Their Own Stories Through Photographs." The article reports on “Another Way Home,” the 25th annual “Moving Walls” exhibition series by the Open Society Documentary Photography Project. in the series, migration takes center stage not only because of our times, but because it has been a constant theme throughout the series’ history.
Immigration Article of the Day: CONSTITUTIONAL CITIES: SANCTUARY JURISDICTIONS, LOCAL VOICE, AND INDIVIDUAL LIBERTY by Toni M. Massaro and Shefali Milczarek-Desai
CONSTITUTIONAL CITIES: SANCTUARY JURISDICTIONS, LOCAL VOICE, AND INDIVIDUAL LIBERTY by Toni M. Massaro and Shefali Milczarek-Desai , Columbia Human Rights Law Review
The United States is deeply divided on matters that range from immigration to religion to fracking. “Blue” states resist “red” federal policies, and intra-state disputes pit state legislatures against their local governments. One of these intergovernmental policy flare-ups involves so-called “sanctuary jurisdictions”—government actors that object to more aggressive immigration enforcement by slow walking their voluntary compliance or denying it altogether. In some cases, they have filed lawsuits to voice their dissent.
This Article analyzes the recent wave of sanctuary jurisdiction lawsuits in detail and identifies ways in which they undermine claims that local governments are “mere instrumentalities of the state” or otherwise powerless in the face of federal or state authority. Structural and civil liberty constitutional rights may protect local governments from some state and federal mandates. Local residents too may have resistance options in addition to the voting booth and the moving van.
This should matter to all sides of the immigration debate: those who support the federal government’s strict immigration policies, those who favor state-federal cooperation in enforcement, and those who believe local jurisdictions should be given room to resist on policy grounds. But local governments’ right to dissent goes beyond immigration law. The sanctuary jurisdiction controversy may guide local officials in many other areas, and help illuminate how and when they may assert local rights.
This Article outlines the contours of potential local rights and makes three descriptive claims. First, respect for local power is on the firmest ground when it fortifies constitutionally sound government, top to bottom. Second, these tools of local resistance are quite limited. They work only in cases where upper level government mandates are beyond the constitutional pale or debatably so, and where courts can and should play a role in calling the lines. Third, they are available to all local government actors, not merely to progressive urban actors. The Article also makes the following normative claim: preserving constitutional breathing room for local dissent is critical to a healthy interchange between and among federal, state, and local governments. Above all, it promotes fundamental liberty values.
This is not a “city power” manifesto; it is a “constitutional city” manifesto. This Article maintains that the articulation and enforcement of constitutional ground rules is particularly critical in the current moment of hyper-partisanship and centrifugal forces that undermine union and intergovernmental cooperation. A call to these basic principles may offer Americans the hope of a fair game, however intensely and politically the game is fought.
Sunday, October 7, 2018
Big news on the "sanctuary" city front.
In an order released on Friday, a federal judge in California struck down an immigration law that the Trump administration has used to go after cities and states that limit cooperation with immigration officials. The ruling by District Judge William Orrick also directed the U.S. Department of Justice to give California $28 million that was withheld over the state's immigration policies. San Francisco is expecting two grant awards of $1.4 million following the ruling.
The court summarized its conclusion as follows:
"In agreement with every court that has looked at these issues, I find that: the challenged conditions violate the separation of powers; Section 1373 is unconstitutional; the Attorney Generalexceeds the Spending Power in violation of the United States Constitution by imposing thechallenged conditions; the challenged conditions are arbitrary and capricious; California’s and San Francisco’s laws comply with Section 1373 as construed in this Order; California is deserving of the mandamus relief it seeks; and both parties are entitled to a permanent injunction. Because the requisites for a nationwide injunction are met as a result of the unconstitutionality of Section 1373 and the uniform effect of DOJ’s conditions on Byrne JAG grantees around the country, I will follow the lead of the district court in City of Chicago and issue a nationwide injunction but stay
its nationwide effect until the Ninth Circuit is able to address it in the normal course on appeal."
The law (8.U.Sc.C. 1373(a)) struck down by Judge Orrick states that "Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual."
In fnding Section 1373 to be unconstitutional, the court stated that
"As the court wrote in City of Chicago [litigation], Section 1373 `effectively thwart[s] policymakers’ ability to extricate their state or municipality from involvement in a federal program.' . . . It goes beyond information-sharing to `require local policymakers to stand aside and allow the federal government to conscript the time and cooperation of local employees.' . . . Further, with Section 1373 imposed on states and local governments, `federal priorities dictate state action' and this inevitably reaches the state’s relationship with its own citizens and undocumented immigrant communities in ways that no doubt will affect their perceptions of the state and trust in its law enforcement agencies. For the reasons discussed above, I find that Section 1373 is unconstitutional."
Saturday, October 6, 2018
I'm reporting from Penn State Law in University Park, PA, this year's home for the Society of American Law Teachers (SALT) conference.
Yesterday, I had the privilege of speaking on a panel with Mariela Olivares (Howard) and Kristina Campbell (UDC) about "Bringing Humanity into the Classroom: Using Experiential Techniques in Doctrinal Courses to Prepare the Well-Rounded Lawyer in an Era of Social Change."
Our launching point for conversation was a comment from Deborah Merritt (Ohio State) during the opening panel of the day: "Should we and can we teaching students empathy?" Questions that Debbie responded to with a resounding yes. We agree. But students don't need to know that's what we are doing!
I spoke in praise of field trips - taking students out of the classroom to get a different perspective on the material. I spoke about touring county jail with Criminal Law students (and hopefully Crimmigration students this Spring!), the port of entry with Immigration students, and sites along the U.S.-Mexico border in San Diego with students on the one-week Hofstra summer program (coming again this May!).
Mariela spoke about creating opportunities for students to engage in outside-the-classroom activity - creating time for students to go on solo forays to immigration court. She shared the sorts of questions that she asks students to contemplate, including: How many people had lawyers? Did it seem to matter? What was the quality of the lawyers? How you do you think the experience was for pro se individuals? What did "due process" look like? What would you wish to change and why? What aspects struck you positively and why? She also spoke about her numerous in-class exercises prompting students to think about litigation objectives and the students' own assumptions about controversial material.
Kristina spoke about Service Learning at UDC and how to bring the experience of working in family detention facilities into the classroom for those unable to participate in such an intense off-site program. She gives students facts, an NTA, and questions for credible/reasonable fear interviews. The exercise gives students a flavor of what it's like to help at a family detention facility.
I'm thoroughly inspired to try new things in my classes next year!
A new Law & Order SVU episode this week took on the Trump administration's family separation and "zero tolerance" policies. It was sympathetic to the plight of the immigrants affected but I am not sure what I thought of the overall episode. Click here for a recap.
Scott Olson/Getty Images A Border Patrol agent checks vehicles for illegal immigrants and contraband at a roadside checkpoint June 1, 2010 near Sasabe, Arizona.
This report ("Checkpoint Nation: Border agents are expanding their reach into the country’s interior") by Melissa del Bosque looks at the expansion of activities away from the U.S. border of the enforcement activities of U.S. Customs and Border Protection (CBP):
"CBP is the agency tasked with guarding America’s borders, as opposed to Immigration and Customs Enforcement (ICE), which investigates, arrests, and deports undocumented people throughout the country. Over the past eighteen months, as resistance to President Trump’s immigration crackdown has grown, most of the criticism has been directed at ICE, whose interior enforcement mission often targets long-term residents without criminal records. Immigrant rights groups have begun a campaign to defund or abolish the agency. . . .
[The criticism of ICE] applies to CBP as well. It turns out that the legal definition of `the border' is troublingly broad. Some 200 million people—nearly two thirds of all Americans—live within the `border zone,' which is defined by the Justice Department as the area up to a hundred air miles from any US land or coastal boundary. Nine of the country’s ten largest cities lie within the zone. It touches thirty-eight states and encompasses all of Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, Michigan, New Hampshire, New Jersey, and Rhode Island.
Within the border zone, Congress has granted CBP powers far beyond those of other law enforcement agencies. CBP, which largely consists of customs officers at ports of entry and Border Patrol agents who monitor the highways, has the authority to set up checkpoints almost anywhere within the hundred-mile zone, and to search and detain people without a warrant as long as they feel they have `probable cause' to suspect that someone is in the country illegally or smuggling contraband. The Fourth Amendment of the Constitution protects citizens from `unreasonable searches and seizures,' but CBP operates with wide discretion, often using alerts from dogs as a reason to pull people aside for secondary inspection. Within twenty-five miles of any border, Border Patrol agents have even more expansive powers; they can enter private land without a warrant or the owner’s permission."
The New Underground Railroad? Safe House: A group of Latina women across the country have been working in secret, turning their homes into shelters for abused immigrant women
The Investigative Fund has released a report ("Safe House: A group of Latina women across the country have been working in secret, turning their homes into shelters for abused immigrant women") by Lizzie Presser. Here are the report's "Key Findings":
Latina women experience domestic violence at the same rate as white women, but for immigrants, the rate is nearly double.
Victims of domestic violence who are undocumented, or related to those who are documented, avoid shelters and mistrust the law.
In response, an underground network of Latina women have turned their homes into shelters for women on the run.
Within months of Trump’s inauguration, sexual assault reports among Latinos in Los Angeles had fallen by a quarter.
The administration has amended the U Visa, created to give victims of violence crimes a path to permanent residency: now, any applicant who is not approved will immediately be placed in deportation proceedings.
Friday, October 5, 2018
The 2018 MacArthur Foundation "Genius" grants have been announced! Of particular interest to readers of this blog, the grantees include International Refugee Assistance Project Director Becca Heller (mobilizing legal resources on behalf of refugees and lawyering against the travel ban) and Silicon Valley De-Bug co-founder Raj Jayadev (organizing to use participatory defense strategies towards criminal justice reform). Congratulations to all!
This year's winners of the Nobel Peace prize are two outspoken advocates against sexual violence, the NYT reports.
One of the award winners is Dr. Denis Mukwege, a gynecological surgeon in The Democratic Republic of Congo. In 2012, Dr. Mukwege spoke to the UN, lashing out at "an unjust war that has used violence against women and rape as a strategy of war." His speech led to an assassination attempt that the doctor survived after which he continued to treat women affected by sexual violence.
The other award winner is Nadia Murad. Ms. Murad is Yazidi, and, like other young women from this ethnic minority, she was sold into slavery by ISIS and subject to repeated sexual violence. After escaping, Ms. Murad went public with her story and has taken every effort to speak out and draw attention to the plight of Yazidi women.
The Nobel Prize committee rewarded these two for their “efforts to end the use of sexual violence as a weapon of war and armed conflict.”
Thursday, October 4, 2018
I spoke with someone a while back who was worried about President Trump's determination to deport all noncitizens with criminal convictions. A relative of this person had a drug conviction -- an old one, but a conviction nonetheless. And the person I was speaking with was worried about their family member being deported because that would mean returning to the Philippines which, since 2016, has been engaged in a war on drugs that Human Rights Watch believes has resulted "in the killing of more than 12,000 drug suspects."
At the time, I thought about the prospects of this relative applying for asylum, withholding of removal, or CAT. And I thought about how one might go about gathering evidence to support such a case.
In late September, Philippine President Rodrigo Duterte himself provided significant evidence in support of these claims. As the NYT rerports, Duterte spoke to members of his government and challenged his military to overthrow him if not satisfied with his leadership. Then, and here's the kicker, Duterte said "I told the military, what is my fault? Did I steal even one peso? ... My only sin is the extrajudicial killings."
I don't know about you, but I spend some time exploring in class the idea of how to prove what the government did or did not intend to do vis-a-vis persecution. Proof like that sure doesn't get easier than a presidential statement. Something to keep in mind when you come to this material.
Argument preview: Justices once again consider proper scope of immigration law’s mandatory detention provision
Jennifer M. Chacón previews on SCOTUSBlog the oral arguments in Nielsen v. Preap, which presents the question whether a noncitizen exempt from mandatory detention under 8 U.S.C. § 1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not take him into immigration custody immediately. Argument is set for October 10.
Immigrant detention has been challenged in the courts for many years, with the Court last Term (Jennings v. Rodriguez) deciding a question of the statutory authority for a statutory question and remanding the case for determining the constitutionality of the statute. The challenge in Nielsen v. Preap takes on added significance given President Trump's expanded reliance on immigrant detention in enforcing the immigration laws. From his first days in office, President Trump has ramped up the use of detention, announcing the end of "catch and release" in a January 2017 executive order and engaging in the mass detention of Central Americans (combined, for a time, with separating families inn detention), and efforts to abrogate the "Flores settlement," which established the rules for detention and release of minor migrants.
District Court Enters Injunction in Challenge to Stripping TPS from Salvadorans, Haitians, Nicaraguans, and Sudanese
Judge Edward Chen yesterday entered an order (Download Tps order) in Crista Ramos et al. v. Kirstjen Nielsen, et al. In that case, Plaintiffs challenge the Trump Administration's termination of "Temporary Protected Status" (TPS) for immigrants from El Salvador, Nicaragua, Haiti, and Sudan Salvador, Nicaragua, Haiti, and Sudan. The court entered a preliminary injunction and ordered that
"Defendants, their officers, agents, employees, representatives, and all persons acting in concert or participating with them, are ENJOINED AND RESTRAINED from engaging in, committing, or performing, directly or indirectly, by any means whatsoever, implementation and/or enforcement of the decisions to terminate TPS for Sudan, Haiti, El Salvador, and Nicaragua pending resolution of this case on the merits."
At oral argument in the case, Judge Chen reportedly was sympathetic to the plaintiffs' arguments that the end of TPS was an unexplained change in policy and motivated by racial animus. The order looked at possible racial animus in the decisions to end TPS:
"Because there is evidence that President Trump and/or the White House influenced the DHS on the TPS decisions to at least raise serious question on the merits, the remaining issue is whether there is evidence that President Trump harbors an animus against non-white, non-European aliens which influenced his (and thereby the Secretary’s) decision to end the TPS
designation. As Plaintiffs have catalogued, there is evidence of such as reflected by statements made by President Trump before, during, and after the TPS decision-making process13:
• In June 2015, Mr. Trump announced that he was running for President and delivered remarks characterizing Mexican immigrants as drug dealers or users, criminals, and rapists. See Degen Decl., Ex. 92 (Washington Post article). • “In December 2015, [Mr.] Trump called for ‘a total and complete shutdown of Muslims entering the United States.’” Degen Decl., Ex. 95 (New York Times article).
• In June 2017, President Trump stated that “15,000 recent immigrants from Haiti ‘all have AIDS’ and that 40,000 Nigerians, once seeing the United States, would never ‘go back to their huts’ in Africa.” Degen Decl., Ex. 95 (New York Times article).
• On January 11, 2018, during a meeting with lawmakers where immigrants from Haiti, El Salvador, and African countries were discussed, including with respect to TPS designations that had been terminated, President Trump asked: “‘Why are we
having all these people from shithole countries come here?’ [He] then suggested that the United States should instead bring more people from countries such as Norway,” which has a predominantly white population. Degen Decl., Ex. 96
(Washington Post article). He also told lawmakers that immigrants from Haiti “must be left out of any deal.” Degen Decl., Ex. 96 (Washington Post article).
• In February 2018, President Trump gave a speech at the annual Conservative Political Action Conference where he used MS-13 – a gang with many members having ties to Mexico and Central America – to disparage immigrants, indicating
that that they are criminals and comparing them to snakes. See Degen Decl., Ex. 93 (article from www.vox.com); see also Degen Decl., Ex. 98 (New York Times article) (stating that President Trump characterized undocumented immigrants as “‘animals’”).
• In July 2018, President Trump told European leaders that “they ‘better watch themselves’ because a wave of immigration of ‘changing the culture’ of their countries,’” which he characterized as being “‘a very negative thing for Europe.’”
Degen Decl., Ex. 99 (Washington Post article)."
Based on the evidence, the court concluded that "at the very least, the evidence submitted by Plaintiffs supports serious questions on the merits on the Equal Protection Claim. "