Saturday, July 19, 2014
Carlos Tiburcio Bea is a federal judge on the U.S. Court of Appeals for the Ninth Circuit. He was appointed by President George W. Bush in 2003. Born to Cuban parents in Spain, Judge Bea immigrated first to Cuba and then to the U.S. While attending Stanford, he played basketball for the varsity team as well as for the Cuban Olympic team in the 1952 Summer Olympics in Helsinki. Prior to his appointment as a federal judge, Judge Bea ran his own law office, specializing in civil trial practice, and also served as a trial judge on the San Francisco Superior Court from 1989 to 2003. He has taught courses at Hastings College of the Law, San Francisco, and lectured at Stanford Law School. Among his honors, Judge Bea was named Honorary Vice Consul of Spain from 1979 to 1993 and received the Pro Bono Recognition Award from the State Bar of California, in 1989.
In an address to the Board of Immigration Appeals and Immigration Judges in 2007, Judge Bea told about his immigration history: "Every immigrant has a story. You see before you an immigrant who was once under an order of deportation. You might be interested in the story and how I came to be ordered deported, but obviously was not." Judge Bea at one point faced deportation from the United States for a technical violation of the immigration laws and recounts how the fact that he played college basketball for Stanford helped him obtain relief from deportation.
Judge Bea was one of the judges on the Ninth Circuit panel in Arizona v. California and concurred in part and dissented in part to the majority opinion's invalidation of four provisions of Arizona's SB 1070. The U.S. Supreme Court affirmed the Ninth Circuit on three of teh four provisions.
Immigration Article of the Day: Migrant Labour in the United States: Working Beneath the Floor for Free Labour? by Maria Linda Ontiveros
Migrant Labour in the United States: Working Beneath the Floor for Free Labour? by Maria Linda Ontiveros, University of San Francisco - School of Law 2014 Chapter from: Migrants at Work: Immigration and Vulnerability in Labour Law published by Oxford University Press, Forthcoming
Abstract: This chapter argues that the combination of US employment and immigration laws create a system for the exploitation of immigrant workers that runs counter to the purpose of the Thirteenth Amendment to the US constitution. The chapter provides an overview to US employment and migration laws and then identifies specific problems raised for immigrant workers. The chapter then describes Thirteenth Amendment jurisprudence and shows how the current system of laws runs afoul of the amendments purpose.
Friday, July 18, 2014
The American Bar Association (ABA) through its Commission on Immigration (COI) is gravely concerned about the situation on the southwest border. This year there has been a dramatic increase in the number of adults, families and unaccompanied children from Central America crossing into Texas with some literally turning themselves over to Border Patrol Agents. We have all seen the images of children and families jailed in terrible conditions at Customs and Border Protection processing stations, held for days in freezing cold cells, sleeping on cement floors and receiving inadequate food, bedding and sanitation. These same individuals each face removal proceedings, either through immediate expedited removal proceedings or by the issuance of a charging document in immigration court. The ABA has worked on these issues for several years and continues to take action to address the current needs.
For details, see Download FINAL COI UAC Statement pdf
LEXIS NEXIS Legal Newsroom Immigration Law has posted about Albuquerque immigration attorney Olsi Vrapi's description of "what it is like to try to represent refugees locked up at the Artesia, New Mexico detention center. . . in the middle of nowhere."
Immigration Brief of the Day: A Short History of Sex and Citizenship: The Historians' Amicus Brief in Flores-Villar v. United States
A Short History of Sex and Citizenship: The Historians' Amicus Brief in Flores-Villar v. United States, by Kristin A. Collins, Boston University School of Law June 26, 2014 Boston University Law Review, Vol. 61, p. 1485 (2011) Boston Univ. School of Law, Public Law Research Paper No. 11-61
Abstract: The historians’ amicus brief that accompanies this essay was submitted to the Supreme Court in Flores-Villar v. United States, an equal protection challenge to federal statutes that regulate the citizenship status of foreign-born children of American parents. When the parents of such children are unmarried, federal law encumbers the ability of American fathers to secure citizenship for their children, while providing American mothers with a nearly unfettered ability to do the same. The general question before the Court in Flores-Villar – and a question that the Court has addressed in sum and substance on two other occasions during the last thirteen years – was whether the gender asymmetry in this statutory scheme is consistent with constitutional sex-equality principles. The goal of the historians’ amicus brief in Flores-Villar was to explain to the Court how this ostensibly obscure citizenship law is part of a larger historical phenomenon: the persistence of gender-based sociolegal norms in determining citizenship. The introductory essay provides an overview of the account provided in the brief and discusses how generic conventions shaped the amicus brief’s presentation of the history of sex-based citizenship laws.
Today the country’s attention is riveted on immigrant children who have made arduous journeys to the southern border of the United States. The country is asking what systems we have in place and what systems could be put in place to address their needs. People are debating why these children are arriving here, where they should go, and what our laws require. Some have proposed expedit ing deportations by implementing a non-judicial removal process for Central American children, circumventing protections afforded under the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) .
Many organizations are weighing in on these issues from a variety of perspectives, and Appleseed would like to add to the discussion by pulling back the lens and examining the fundamental status of children in the United States, as a matter of law and morality. We find that the concepts central to the body of law dealing with children recognize that children are independent individuals endowed with moral and legal rights, who are given special recognition in many circumstances based on the developmental traits that distinguish them from adults. We do not send children into harm’s way; we protect and nurture children in our country; and we treat them as individuals who command our attention. In short, there are three core concepts that have, and must continue to, govern this country’s response to these children.
Core Principle 1: Placing children in danger is inconsistent with U.S. law and policy; indeed, we protect children.
Core Principle 2: U.S. law and policy acknowledge children are developmentally different than adults.
Core Principle 3: Children are individuals and have the right to be treated as such.
Sheena Easton began her singing career when she worked for a band in the evenings while studying to be a speech and drama teacher at the Royal Scottish Academy of Music and Dance. It was after graduating that she won a BBC-sponsored singing competition. This led to her being featured in the BBC documentary series The Big Time, in 1980, which followed her quest to become a pop star. Her first U.S. single, “Morning Train,” topped the charts in 1981 and her eponymous debut album went gold. Shortly after, she performed the theme song to the James Bond film For Your Eyes Only and won the 1981 Grammy award for Best New Artist. In 1984, she reinvented her image and gained renewed popularity with two risque and controversial singles, “Strut” and “Sugar Wells,” the latter of which was written and produced by Prince. Later in her career, she began to focus on acting, appearing in the television series Miami Vice and the Broadway play Man of LaMancha.
From the Bookshelves: Refugee Protection and the Role of Law Conflicting Identities Edited by Susan Kneebone, Dallal Stevens, Loretta Baldassar
Refugee Protection and the Role of Law Conflicting Identities Edited by Susan Kneebone, Dallal Stevens, Loretta Baldassar Routledge – 2015 – 324 pages
Sixty years on from the signing of the Refugee Convention, forced migration and refugee movements continue to raise global concerns for hosting states and regions, for countries of origin, for humanitarian organisations on the ground, and, of course, for the refugee. This edited volume is framed around two themes which go to the core of contemporary ‘refugeehood’: protection and identity. It analyses how the issue of refugee identity is shaped by and responds to the legal regime of refugee protection in contemporary times. The book investigates the premise that there is a narrowing of protection space in many countries and many highly visible incidentsof refoulement. It argues that ‘Protection’, which is a core focus of the Refugee Convention, appears to be under threat, as there are many gaps and inconsistencies in practice.
Contributors to the volume, who include Erika Feller, Elspeth Guild, Hélène Lambert and Roger Zetter, look at the relevant issues from the perspective of a number of different disciplines including law, politics, sociology, and anthropology. The chapters examine the link between identity and protection as a basis for understanding how the Refugee Convention has been and is being applied in policy and practice. The situation in a number of jurisdictions and regions in Europe, North America, South East Asia, Africa and the Middle East is explored in order to ask the question does jurisprudence under the Refugee Convention need better coordination and how successful is oversight of the Convention?
Abstract: The U.S. asylum system is noble, but flawed. Scholars have long recognized that asylum is a “scarce” political resource, but U.S. law persists in distributing access to asylum based on an asylum seeker’s ability to circumvent migration controls rather than the strength of the asylum seeker’s claim for protection. To apply for asylum, an asylum seeker must either arrange to be smuggled into the U.S., or lie to the consulate while abroad to obtain a nonimmigrant visa. Nonimmigrant visa requirements effectively filter the pool of asylum applicants according to wealth, educational attainment, and intent not to remain in the U.S. indefinitely -- criteria completely unrelated to or at odds with the purposes of refugee law. The system as currently designed, therefore, selects asylum seekers based entirely on their ability to satisfy irrelevant criteria, and without regard to their relative need for protection from persecution. Such a system fails to maximize the humanitarian benefits of our scarce asylum resources.
To better protect individuals facing serious persecution, this Article contends, Congress should consider reforming the immigration laws to provide for an asylum visa to be made available to foreign nationals. U.S. consulates abroad, under proper circumstances, would issue this visa to foreign nationals who demonstrate a credible fear of persecution on a ground enumerated in the United Nations Convention Relating to the Status of Refugees. Applicants would then lawfully enter the U.S. and apply for asylum. Successful applicants would remain, and unsuccessful applicants would face removal. Drawing on the extant literature on so-called “protected entry procedures” that once existed in Europe, this Article considers the costs and benefits of the practice of issuing asylum visas. This Article concludes that, despite serious and uncertain costs, and the impracticability of issuing asylum visas in some countries, this practice would likely create substantial benefits. In particular, it would likely decrease asylum seekers’ reliance on human smugglers, clear a path to protection for bona fide asylum seekers, and increase the accuracy of information possessed by both asylum seekers and the U.S. government. Thus, the asylum visa would assist asylum seekers in making better-informed decisions ex ante and help to achieve a better allocation of asylum resources ex post. For these reasons, the creation of an asylum visa and the potential details of such a proposal merit further study.
Thursday, July 17, 2014
From the Washington Post
We may have reached peak political theater near the U.S.-Mexico border. According to AZcentral.com, Arizona state Rep. and 1st district congressional candidate Adam Kwasman (R) rushed to the scene in Oracle, Ariz., on Tuesday to participate in protests against housing some of the thousands of undocumented immigrant children who have come across the border in recent weeks in a facility nearby. Kwasman was in the middle of a fiery speech about "Lady Justice" when he spotted a yellow school bus and dashed off with the protesters to greet it. He snapped a picture which he tweeted with he message "Bus coming in. This is not compassion. This is the abrogation of the rule of law." "I was able to actually see some of the children in the buses and the fear on their faces. This is not compassion," Kwasman told 12 News reporter Brahm Resnik. There was just one problem: Those weren't undocumented kids. They were YMCA campers from the Marana Arizona school district. Read more...
From the Washington Post:
Eight men in clothes dirtied by their desert journey rise from their seats and approach the bench.
They wear no belts or shoelaces. They are chained around the waist, shackled by their ankles, cuffed at the wrists. They pad across the gray carpet under the recessed lighting in the William D. Browning Special Proceedings Courtroom.
“Are you pleading guilty because you are guilty?” Judge Charles R. Pyle asks.
In a few minutes, these men and women from Mexico and Central America who are convicted of illegally entering the United States will be taken to a lockup by U.S. marshals in blue windbreakers. Then there will be eight MORE immigrants, and eight after that, until the courtroom is empty and 70 people — the day’s quota — will have passed through this judicial assembly line in federal court.
This is Operation Streamline. Fast-track prosecutions. Group hearings. From arrest to jail — with sentences as long as six months — in as little as one day. And under the Senate's reform bill passed last year, S. 744, the number of people passing through U.S. District Court in Tucson under Streamline would triple — to up to 210 per day. Read more....
Maria Hinojosa is an award-winning broadcast journalist. She has spent her career bringing the stories of marginalized people and issues to light. She is an anchor for PBS’ Need to Know series and her own talk show, Maria Hinojosa: One-on-One, as well as executive producer and anchor of the NPR show Latino USA. In 2010, she launched The Futuro Media Group, a nonprofit production company that aims to give voice to social issues in multicultural America. Among her many honors she has won four Emmies and the 2012 John Chancellor Award for Excellence in Journalism.
Abstract: This Article offers a systematic examination of how determinations of parentage operate in immigration and citizenship law. As a descriptive matter, we argue that immigration and citizenship law generally use more stringent standards for determining parentage than state family law, despite their common origins. Rather than simply noting that the differences exist, we take an institutional approach to understanding why. We argue that immigration and citizenship law use different parentage tests than family law not because lawmakers have failed to properly incorporate family law principles, but because lawmakers’ interests are not the same in diverse contexts. State family law’s primary interests are in privatizing the dependency of children and, somewhat secondarily, in children’s physical and psychological well-being. Immigration and citizenship law, in contrast, implicate the federal government’s interest in achieving optimal numbers of immigrants and citizens. In addition, because the benefits of lawful immigrant status and U.S. citizenship are so extensive, an important state interest in determining parentage in the immigration and citizenship context is the ferreting out and prevention of fraud. Because of these differences, variations in institutional actors’ attitudes toward various kinds of parentage may be inevitable, or, at the very least, understandable. Put differently, since the values at stake in immigration and citizenship law differ so greatly from the values of family law, it should be no surprise that the "family values" espoused by immigration and citizenship law are very different from those we are accustomed to seeing in family court.
We do not, however, believe that these institutional differences mean that current immigration and citizenship laws are optimal. We argue, rather, that a clear understanding of immigration and citizenship laws’ "family values" shows that these laws’ approaches to parentage fail to adequately account for the crucial federal interest of protecting its citizens’ and residents’ right to family reunification. Current federal policy privileges interests in limiting membership and in fraud prevention at the expense of allowing U.S. citizens and lawful permanent residents to exercise their own liberty interests in preserving parent-child relationships. We argue that the interests of individual citizens are also national interests that the federal government should embrace as its own, and that recognition of intentional and functional parentage deserves a more prominent place in the nation’s definition of parentage in the immigration and citizenship context. The reason for this, however, is not that federal immigration and citizenship law should defer to state family law norms. Indeed, the difference in interests may result in different rules, which may be more stringent — but also might be more expansive — than current family law norms.
Wednesday, July 16, 2014
This Congressional Research Service report on "sanctuary policies" is summarized below:
While the power to prescribe rules as to which aliens may enter the United States and which aliens may be removed resides solely with the federal government, the impact of alien migration—whether lawful or unlawful—is arguably felt most directly in the communities where aliens settle. State and local responses to unlawfully present aliens within their jurisdictions have varied considerably, particularly as to the role that state and local police should play in enforcing federal immigration law. Some states, cities, and other municipalities have sought to play an active role in immigration enforcement efforts. However, others have been unwilling to assist the federal government in enforcing measures that distinguish between residents with legal immigration status and those who lack authorization under federal law to be present in the United States. In some circumstances, these jurisdictions have actively opposed federal immigration authorities’ efforts to identity and remove certain unlawfully present aliens within their jurisdictions.
Although state and local restrictions on cooperation with federal immigration enforcement efforts have existed for decades, there has reportedly been an upswing in the adoption of these measures in recent years. Moreover, the nature of these restrictions has evolved over time, particularly in response to the development of new federal immigration enforcement initiatives like Secure Communities, which enable federal authorities to more easily identify removable aliens in state or local custody. Entities that have adopted such policies are sometimes referred to as “sanctuary” jurisdictions, though there is not necessarily a consensus as to the meaning of this term or its application to a particular state or locality.
This report discusses legal issues related to state and local measures that limit law enforcement cooperation with federal immigration authorities. The report begins by providing a brief overview of the constitutional principles informing the relationship between federal immigration authorities and state and local jurisdictions, including the federal government’s power to preempt state and local activities under the Supremacy Clause, and the Tenth Amendment’s proscription against Congress directly “commandeering” the states to administer a federally enacted regulatory scheme.
The report then discusses various types of measures adopted or considered by states and localities to limit their participation in federal immigration enforcement efforts, including (1) limiting police investigations into the immigration status of persons with whom they come in contact; (2) declining to honor federal immigration authorities’ requests that certain aliens be held until those authorities may assume custody; (3) shielding certain unlawfully present aliens from detection by federal immigration authorities; and (4) amending or applying state criminal laws so as to reduce or eliminate the immigration consequences that might result from an alien’s criminal conviction.
The recent surge of tens of thousands of unaccompanied children attempting to enter the country has touched off a heated debate. Some ask whether having Immigration Judges decide the fate of these children only postpones their inevitable deportation since it is alleged that few have any valid claim to remain in the United States. Others hotly dispute this contention. This special report presents information derived from current and detailed case-by-case Immigration Court records tracing decisions on removal orders sought by the Department of Homeland Security (DHS) concerning unaccompanied children who have been apprehended by the agency.
The data, current through June 30, 2014, was obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University from the Executive Office for Immigration Review (EOIR) under the Freedom of Information Act. The data trace the status of over 100,000 such cases. The information includes every instance over the last decade flagged as a juvenile case currently recorded in EOIR files. In each of these cases, the Department of Homeland Security instituted the action requesting that the court issue an order to deport these children. Because the DHS has authority to screen and then immediately deport unaccompanied Mexican children without any formal hearing, only a small proportion of children from Mexico are referred to the Immigration Court by the DHS. For this reason unaccompanied children who are immediately deported by DHS are not part of the court data examined here.
Kendall Breitman on Politico.com reports that, while some mayors are working to make sure their cities are not the next drop-off spot for the recent influx of undocumented children, mayors from Tampa and Los Angeles are arguing that welcoming immigration would have benefits for cities across the country.
Watch this 12 year old Honduran child migrant tell of her experiences.
Colorlines spoke with Mayeli Hernández. Along with her 8-year-old sister, she crossed into the United States last year when she was just 11 years old. Here, she talks about what her experience in the hielera was like.