Friday, February 20, 2015
The U.S. District Court for the District of Columbia ordered a preliminary injunction that puts an immediate halt to the government's policy of locking up mothers and children from Central America – all of whom have been found to have legitimate asylum claims – in order to send a message to other migrants that they should not come to the U.S.
The case was brought on behalf of mothers and children who have fled extreme violence, death threats, rape, and persecution in Central America and come to the United States for safety. Each has been found by an immigration officer or judge to have a "credible fear" of persecution, meaning there is a "significant possibility" they will be granted asylum.
Yet, instead of releasing these families as they await their asylum hearings, which the Department of Homeland Security (DHS) has typically done, the agency now categorically detains and denies their release on bond or other conditions. The Obama administration adopted this policy — "an aggressive deterrence strategy" — following this summer's increase in mothers and children coming to the United States.
The Obama administration's blanket no-release policy is a violation of federal immigration law and regulations, as well as the Fifth Amendment of the U.S. Constitution, which prohibit the blanket detention of asylum seekers for purposes of general deterrence, the complaint charges.
The lawsuit aims to invalidate that policy and ensure that the families’ cases receive individualized reviews. Asylum-seeking mothers and children are being detained at facilities across the country, in places such as Karnes, Texas, and Berks County, Penn. The nation's largest family detention facility just opened in Dilley, Texas.
Plaintiffs in this case — all of whom have cleared credible-fear screenings — include:
- A mother who, along with her son, fled from Honduras after years of physical abuse at the hands of her son’s father. After he raped her, she escaped with the help of members of her church. However, DHS has refused to release the mother and son to live with their family in the U.S. while their asylum case proceeds.
- A mother who fled El Salvador with her 5-year-old and 8-month-old daughters to escape brutal and unrelenting abuse by the children's father. She and her daughters are being further traumatized because they are locked up in detention as they await their asylum hearing, even though they have a U.S.-citizen relative who has offered to support them and provide the care the family needs.
- A Salvadoran woman who, with her young son and daughter, escaped to the United States after her common-law husband physically abused her and threatened to kill her children. They are now languishing in detention awaiting an asylum hearing, even though they could stay with her mother who lives and works in Texas.
The case, RILR v. Johnson, was filed in U.S. District Court in Washington, D.C. Co-counsel are the ACLU's Immigrants’ Rights Project, the ACLU of the Nation’s Capital, the ACLU of Pennsylvania, the ACLU of Texas, the Immigration Clinic at the University of Texas School of Law at Austin, and Covington & Burling LLP.
Here is the ACLU news release, with links to the February 20 memorandum and order.
Webinar: Transformational Solidarity; Why the Migrant Rights Movement Should Show Up for Black Lives.
The Black Alliance for Just Immigration (BAJI) organizes at the intersection of race and immigration in our work to empower African American and Black Immigrant communities in the U.S. We have always considered Migrant Rights a Racial Justice issue which allows us to build vital connections between people and movements. As the Migrant Rights Movement faces a considerable setback given the recent order of a Federal Judge in Texas to halt Obama’s Administrative Relief and with the Black Lives Matter Movement facing considerable suppression for continued resistance, it is important for us to consider what transformational solidarity looks like given this political moment.
Please join BAJI’s “Transformational Solidarity” webinar that will make the important connections.
Below are goals for the Webinar:
- Provide a framing of the Black Lives Matter movement and how migrant rights organizations and activists can and should participate as allies.
- Center Blackness and address anti-Blackness as a frame for solidarity, as opposed to a transactional “Black ppl showing up for immigrants” frame.
- Share analysis and framing around immigration as a racial justice issue.
- Describe cases where Black Immigrants have been criminalized and speak to the outcomes for them as compared to Black Americans.
Our very own BAJI Executive Director and Black Lives Matter co-founder Opal Tometi and Black Immigration Network Coordinator Tia Oso will provide key insight and framing in the webinar. Additionally, we will move into a thoughtful group discussion so that folks can imagine what this work looks like on the ground and in our communities.
Photo Eric E. Johnson
Check out this new "research brief" from the George Mason University Institute for Immigration Research -- Who's Behind the Wheel?: Immigrants Filling the Labor Shortage in teh U.S. Trucking Industry by Zahra Sohail Khan.
Khan argues that the "positive economic contributions" of immigrant truck-drivers have been overlooked. Immigrants constitute 15.7 percent of the current truck-driver workforce. And they're a needed addition to an industry that is struggling with a worker shortage. But immigrants face challenges in becoming truckers - including English language proficiency and work authorization. Khan concludes that given the importance of the trucking industry to the U.S. economy, trucking firms should "take action to facilitate" the "increased acceptance" of immigration truck drivers into the industry.
I'll note that Khan and James Witte, the Director of Geroge Mason's Institute for Immigration Research, co-authored an piece for HuffPo on this same topic: Ho, Ho, Ho, Who Delivers Those Holiday Gifts? Witte and Khan wrote there: "America needs as many truck drivers as it can get."
(Many thanks to Liz Keyes for pointing me to this topic - it's right up my alley as one whose research consistently focuses on the intersection of U.S. immigration law and U.S. business interests.)
In his post on our blog this week, Timothy Dugdale advises Justice Kennedy to rule against Fauzia Din, a U.S. citizen, whose case is before the Supreme Court next week. In my view, Dugdale has it wrong and his blog post also is misleading.
Din’s husband has been denied an immigrant visa. No one knows why. The only information provided by consular officials is that the visa had been denied under 8 U.S.C. § 1182(a)(3)(B), a provision that lists a wide variety of conduct that renders an alien inadmissible due to “terrorist activities.” Officials refused to “provide a detailed explanation of the reasons for the denial.” Yet, Dugdale concludes from these facts that a consular official “thought the husband might be caught up with terrorists.” Actually, we don’t know that. That has not been alleged by the government, whose position is that no explanation is due. So in fact, the issue is whether the lack of factual explanation for the Embassy’s decision violates due process. For me, the answer is a clear yes. That’s the least that due process requires as a protection against arbitrary government action. A government that is allowed to act without explanation would be free to act arbitrarily, ignoring the constraints that the legislature has imposed or that the facts may dictate.
Dugdale says that the question before the Supreme Court is “should the consular official be compelled to detail why he refused the visa.” In fact, that is not the question before the Supreme Court. Neither the Ninth Circuit nor Din are asking for a detailed explanation. They acknowledge a deferential standard of reviewing consular decisions. However, at least some evidence or factual basis must be required. Instead, no evidence nor facts to deny the visa were presented or alleged in this case.
Dugdale’s advice to Kennedy is largely based on the conclusion that Din’s husband is seeking “initial admittance to the U.S. [and judicial review should be limited to] petitioners who have been previously admitted to the U.S. and can prove either substantial connections to the U.S.” Dugdale forgets who the parties are in the case. Din is a U.S. citizen. Her marital rights are being arbitrarily violated. And besides, I’d say that her husband does have “substantial connections to the U.S.” – his wife.
Reasonable people may differ over how the Supreme Court should rule in Kerry v. Din, but let’s keep the facts straight.
USA Today reports that, in an apparent change of heart, the Obama administration will seek to lift the injunction of a federal judge who entered a preliminary injunction putting on hold the administration's expanded deferred action program. "Justice Department lawyers will file papers no later than Monday to stay the order that blocked plans to defer deportations for up to 5 million migrants who are in the country illegally, said White House spokesman Josh Earnest. The decision to seek a stay is in addition to a general appeal of the order that is the latest development in legal battle that may go all the way to the Supreme Court."
Inspired by the 1987 true story, “McFarland, USA” follows novice runners from McFarland, an economically-depressed town in California’s agricultural Central Valley, as they give their all to build a cross-country team under the direction of Coach Jim White (Kevin Costner), a newcomer to their predominantly Latino high school. Coach White and the McFarland students have a lot to learn about each other but when White starts to realize the boys’ exceptional running ability, things begin to change. Soon something beyond their physical gifts becomes apparent—the power of family relationships, their unwavering commitment to one another and their incredible work ethic. With grit and determination, the unlikely band of runners eventually overcomes the odds to forge not only a championship cross-country team but an enduring legacy as well. Along the way, Coach White realizes that his family finally found a place to call home and both he and his team achieve their own kind of American dream.
Thanks to film guru Michael Olivas for pointing out the New York Times review of McFarland, USA.
The Center for Migration Studies of New York (CMS) has announced the appointment of Michele Pistone and John Hoeffner as the new co-managing editors of the Journal on Migration and Human Security (JMHS), CMS’s peer-reviewed public policy journal on international migration. Pistone and Hoeffner each enjoy more than two decades of experience in immigration issues, as litigators, attorneys, scholars, teachers and authors.
Pistone is Professor of Law at Villanova University School of Law and Founding Director of the Clinic for Asylum, Refugee and Emigrant Services. She is also founder of LegalED, an internet start-up that hosts resources for teaching and learning the law.
Hoeffner has held positions in the private sector, government, and academia. He is currently an instructor at Villanova University, and has been commissioned to research and write scholarly articles on various topics concerning migration, including integration, employment and labor migration and Catholic social thought on immigration.
As we have seen this week, immigration law can be great fun for administrative law professors as well as immigration law professors. In this op/ed, administrative law expert Cass Sunstein seriously undermines the Administrative Procedure Act analysis of Judge Andrew Hanen in Texas v. United States. Bring on the appeals!
It is noteworthy that the district court opinion granting the preliminary injunction devotes much of its discussion of the standing of the states, with a particular focus on Texas, and one specific legal claim about the alleged failure to comply with the notice-and-comment provisions of the APA.
Immigration Article of the Day: Immigrant Integration and Social Solidarity in a Time of Crisis: Europe and the United States in a Postwelfare State by David Abraham
Immigrant Integration and Social Solidarity in a Time of Crisis: Europe and the United States in a Postwelfare State by David Abraham, University of Miami - School of Law October 23, 2014 Critical Historical Studies 1:2 (Fall 2014), Pp. 215-253. University of Miami Legal Studies Research Paper No. 15-7
Abstract: A cloud has settled over the immigration regimes of the European welfare states and the United States. Confidence has waned in the viability and value of integrating newcomers into a system of social solidarity. The weakening of civic nationalism and secular constitutional patriotism has unsettled national identities and undermined efforts to facilitate the inclusion of immigrants, especially Muslims. More forceful integration policies might better sustain the welfare state, but individual liberties and group recognition make this more difficult. Ironically, immigrants may now fare better in more unjust neoliberal societies such as the United States than in the advanced welfare states. This essay looks at Europe (Germany in particular) and the United States to assess recent developments. Current arrangements are inadequate to resolve the dual crisis of integration and solidarity at the very moment that social equality is increasingly undermined by fiscal crises and aggressive neoliberal social policies. The article examines literature from a range of social science, law, and history literatures to ask: what social solidarity and the welfare state require and restrict; what the future past of secularism, nationalism, and superordinate identities might be; and what policies might ameliorate the weakened nexus of welfare state, identity, and integration. The article concludes that under current political and economic circumstances, the task of creating an open and more capacious “we” requires not the dilution of membership’s meaning but rather the very social equality whose foundations and mechanisms immigration itself challenges. At a time when that social equality is increasingly undermined by fiscal crises and aggressive neoliberal advances, the integration of immigrants into the evolving national community should be seen as a key defense, a critical element in the construction of social solidarity and the ability to fight back.
The cable television series Better Call Saul premiered just a few weeks ago but it has lawyers talking about the "ethics" of Saul Goodman, a/k/a Jimmy McGill, the attorney who later hits it big in more ways than you can count in the cult classic Breaking Bad. ImmigrationProf recounted advocacy lessons from Goodman for immigration lawyers. Even the American Bar Association has joined in, with this ABA Journal's Question of the Week: "Have you met any lawyers like Saul Goodman?" You might be surprised by the responses.
Thursday, February 19, 2015
As others have noted, Judge Hanen’s injunction against DAPA and DACA expansion was surprising in one way. Although his opinion opens with something of the expected cri de coeur condemning the federal government’s immigration enforcement failures and spends the first 100 pages largely addressing threshold standing and reviewability issues, his decision to impose the injunction rests entirely on a sleeper issue discussed on page 102—whether DHS complied with the APA’s Section 553 notice-and-comment rulemaking requirements.
DHS didn’t undertake notice-and-comment before issuing its DAPA/DACA guidelines because it believed it wasn’t required to. There are several exceptions to the Section 553 requirements, but before Judge Hanen, DHS did not specifically invoke any of them. Instead, it argued that notice-and-comment wasn’t necessary because the guidelines are only a policy statement. This wasn’t very persuasive, and an already-skeptical Judge Hanen didn’t buy it.
I think DHS could have strengthened its APA arguments by invoking specific APA exceptions that better fit the nature and purpose of the guidelines.
I’ve recently written an article about one of these, the exception for “military or foreign affairs functions” in 553(a)(1). This national security exception isn’t often litigated, but the government relies on it all the time and has invoked it successfully for immigration rules several times. Multiple courts held that the exception applied to rules tightening restrictions on Iranian nationals in the wake of the hostage crisis in 1980. And following 9/11, the Second Circuit held that the exception applied when the INS designated countries whose citizens living in the U.S. must report for registration and fingerprinting. Moreover, as I discuss in my article, the national security exception has been successfully invoked by agencies to uphold rules issued without notice-and-comment, even when the agency failed to invoke the exception when issuing the rule. This argument wouldn’t have been a slam-dunk for the government by any stretch: some courts have balked at applying the exception to immigration rules. But the closer linkage between national security and immigration in the post-9/11 policy landscape certainly warranted giving it a try.
DHS could also have invoked the “good cause” exception in 553(b). “Good cause” has been successfully invoked for many different reasons—for emergencies, most often, but also when the notice-and-comment process would thwart the purpose of the rule. The government could have made this argument: one purpose of DACA and DAPA is to bring undocumented immigrants out of the shadows by providing them relief from prosecution or removal; but in order to participate meaningfully in the process of commenting on the proposed rules, the immigrants who would benefit from them must come out of the shadows. In such situations, agencies will issue "interim final" rules, which take effect immediately, with notice-and-comment occurring afterward.
Again, these arguments aren’t slam-dunks, but they should have been made. In addition to a Fifth Circuit Appeal, should DHS simply re-issue the guidelines and specifically invoke these exceptions, and perhaps others as well?
With Congress, the Executive Branch, and the federal judiciary at odds over how to mend the country’s broken immigration system, now, more than ever, is the time to promote positive changes in state legislation for immigrants. A group composed of students and experts in immigration and family law from American Friends Service Committee, the Child Advocacy Clinic at Rutgers University School of Law—Newark, Fordham Law School’s Feerick Center for Social Justice, and the Immigrant Legal Resource Center, with pro bono support from Orrick, Herrington & Sutcliffe LLP, developed model statutory language aimed at promoting uniformity across jurisdictions as well as the right of all Special Immigrant Juvenile Status-eligible immigrant children to access their respective state court systems. The project was part of a broader effort funded with a grant of $200,000 over the course of two years. The model state statute titled “Special Provisions for Immigrant Youth: A Model State Statute” is now available. It was prepared with the aspiration of overcoming jurisdictional barriers and achieving consistency across states for immigrant youth. The working group contacted specialized lawyers practicing in 10 states where immigrants have traditionally settled to help prepare the new model statute. They are New York, California, Nevada, Texas, New Jersey, Florida, Arizona, Georgia, Maryland, and Illinois.
“Special Provisions for Immigrant Youth: A Model State Statute” aspires to:
• Promote uniformity and flexibility across state systems to fully implement the intent of the federal law as well as the spirit of state child welfare laws which seek to protect vulnerable young people.
• Ensure maximum access to state courts in order to obtain the requisite factual findings so that immigrant youth can apply to the U.S. Citizenship & Immigration Service (USCIS) for Special Immigrant Juvenile Status (SIJS).
• Align state law with federal law to ensure that SIJS is available to immigrant youth up to age 21.
• Provide clarity on a number of substantive and procedural issues that typically arise in SIJS cases.
SIJS, created by Congress in 1990, seeks to protect a population of youth who have faced significant struggles from returning to situations where they will not be safe. SIJS eligibility was expanded in 2008 under the William Wilberforce Trafficking Victims Protection Reauthorization Act (TVPRA). According to the U.S. Department of Health and Human Services, the number of unaccompanied immigrant children entering the United States has grown dramatically in recent years, from 6,000 children in 2011 to an estimated 60,000 in 2014. Also, in 2014 approximately 25 percent of unaccompanied immigrant children were under the age of 14, and about one-third of the unaccompanied immigrant children were girls. Given the rise in numbers of arriving unaccompanied children and the expanded eligibility requirements for SIJS, states must ensure that children and youth have access to their court systems.
Chavez Ravine is the current site of Dodger Stadium, a Major League Baseball stadium in Los Angeles, California where the Los Angeles Dodgers play. Chavez Ravine was named for Julian Chavez, a Los Angeles councilman in the 19th century.
The above film, Chavez Ravine: A Los Angeles Story, is a PBS documentary telling the story of how Dodger Stadium came to be. The film shows how this Mexican American community was destroyed by greed, political hypocrisy and good intentions gone awry. During the early 1950s, the city of Los Angeles forcefully evicted the 300 families of Chavez Ravine to make way for a low-income public housing project. The land was cleared and the homes, schools and the church were razed. But instead of building the promised housing, the city sold the land to Brooklyn Dodgers baseball owner Walter O’Malley, who built Dodger Stadium on the site. The residents of Chavez Ravine, who had been promised first pick of the apartments in the proposed housing project, were given no reimbursement for their destroyed property and forced to scramble for housing elsewhere.
Fifty years later, filmmaker Jordan Mechner explores what happened, interviewing many of the former residents of Chavez Ravine as well as some of the officials who oversaw the destruction of the community. Narrated by Cheech Marin and scored by Ry Cooder and Lalo Guerrero, CHAVEZ RAVINE combines contemporary interviews with archival footage and Normark’s haunting black-and-white photographs to reclaim and celebrate a beloved community of the past.
Hat tip to Ernesto Hernandez.
Beyond DAPA and DACA: Revisiting Legislative Reform in Light of Long-Term Trends in Unauthorized Immigration to the United States
Robert Warren and Donald Kerwin document dramatic changes in unauthorized immigration to the United States in the past two decades. It presents estimates of the unauthorized resident population derived from American Community Survey data, supplemented by recent estimates produced by Warren and Warren (2013), and statistics from IPUMS-USA. The paper highlights several trends that emerge from this data, including the precipitous decline in arrivals into this population since 2000 (particularly from Mexico), the rapidly increasing average length of residence of unauthorized residents, and the growing salience of visa overstays in constituting this population. The paper provides estimates of those who would be eligible for the Deferred Action for Parental Accountability (DAPA) and Deferred Action for Childhood Arrivals (DACA) programs. However it also looks beyond these programs to make the case that substantial declines in the unauthorized population —a goal shared by partisans on both sides of the immigration reform debate—will require legislation that reforms the legal immigration system, legalizes a large percentage of the unauthorized, and effectively responds to nonimmigrant visa overstays. Note that I have been making this precise argument for many years, including in Opening the Floodgates: Why America Needs to Rethink Its Border and Immigration Laws (2009).
The new dataset highlight several trends related to the decline in the unauthorized population, particularly from Mexico, and the increasing salience of visa overstays in constituting this population. Some trends defy conventional wisdom and all of them have public policy consequences. In particular, the study finds that:
• The unauthorized resident population was about a million lower in 2013 than in 2007.
• Annual arrivals into the unauthorized population increased to more than one million in 2000, then began to drop steadily, and have now reached their lowest levels since the early 1980s.
• From 2000 to 2012, arrivals from Mexico fell by about 80 percent.
• Between 2010 and 2013, the total unauthorized population from Mexico declined by eight percent.
• In 2006, the number of arrivals from Mexico fell below the total number of arrivals from all other countries (combined) for the first time.
• The number who stayed beyond the period authorized by their temporary visas (overstays) exceeded the number who entered across the southern land border without inspection (EWIs) in each year from 2008 to 2012. Note that this means that increased enforcement along the U.S./Mexico border will not address about half of the new undocumented population (visa overstays) every year.
This past summer, the Immigration Courts adopted new rules that gave priority to scheduling the cases of women and children seeking refuge in this country in response to the sudden influx of such cases. These new procedures followed the Obama Administration's action seeking to expedite their removal. Up until then, while EOIR had special rules for treating unaccompanied juveniles, the Court had not designated proceedings involving an adult with one or more juvenile children for special handling. The new docketing system required this new class of cases be flagged so that they could be given priority over other cases on its docket.
This report presents new data on the status of these 26,342 specially flagged "adults with children" proceedings as of the end of January 2015. It is based on case-by-case records 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. While most cases are still pending, two strong patterns are already emerging:
Less than 30 percent of these families have been able to find representation.
Without representation, women with children almost never prevail even after they are able to demonstrate "credible fear" of returning to their own country — only 1.5 percent were allowed to stay. While few decisions have occurred in represented cases, the win rate thus far has been 26.3 percent.
The Los Angeles Times reports that Movita Castaneda, a movie actress who married Marlon Brando in 1960 and had two children with him, has died in a Los Angeles. She was believed to be 98. Her death Thursday came after hospitalization for a neck injury. One of Castaneda's first films was "Mutiny on the Bounty", a 1935 classic with Clark Gable and Charles Laughton.
Born to Mexican parents on a train crossing the border into Nogales, Ariz., Maria Luisa Castaneda grew up in Los Angeles. Movita was a name coined for her by MGM executives who thought it sounded Polynesian.
Hat tip to Michael Olivas.
Mike Sacks of the National Law Journal reports that Attorney General nominee Loretta Lynch deferred to Attorney General Eric Holder Jr.’s Justice Department when asked in a written questionnaire to cite the legal authority for the Obama administration’s executive actions on immigration. “It is my understanding that this issue is currently the subject of pending litigation and that it has been addressed in a brief filed by the department,” Lynch wrote. “I would respectfully refer you to the department’s brief for a full discussion of this issue.”
Late Monday, a federal court entered a preliminary injunction barring the expanded deferred action program from going into effect. The U.S. has said that it will appeal. Appeals could take months, perhaps years, and could potentially fall under the guidance of Lynch, if she is confirmed.
Immigration Article of the Day: Battered by Law: The Political Subordination of Immigrant Women by Mariela Olivares
Battered by Law: The Political Subordination of Immigrant Women by Mariela Olivares, Howard University School of Law December 1, 2014 American University Law Review, Vol. 64, No. 2, 2014
Abstract: The Article explores the state of immigrant battered women in the United States, focusing on how their identity as a politically and culturally marginalized community impacts the measure of help that they receive. Specifically, the Article examines the 2012-2013 Violence Against Women Act (VAWA) reauthorization debate as an example of how membership in a marginalized community affects legislative successes and failures. Part I briefly outlines the unique obstacles faced by the battered immigrant woman in securing help and leaving violence in the home — for example, cultural and linguistic barriers, poverty, access to justice issues, and fear of authority and of immigration repercussions. Importantly, the status of immigrant outsider in this country contributes to and exacerbates the marginalization that the battered woman already faces as a victim of domestic violence. Part II discusses the legislative successes aimed at helping the community of immigrant domestic violence victims, focusing on VAWA. Since its legislative introduction in 1994, VAWA has included provisions aimed at helping battered immigrants. Yet, the methods in which the law has provided assistance to battered immigrants has weathered varying degrees of political controversy. Part III focuses on how this controversy ultimately drives legislative advocacy, successes, and failures. This discussion elaborates on how the community of battered immigrants is affected by the current era of anti-immigrant rhetoric and immigration law and policy reform. To illustrate, this Part discusses the 2012-2013 VAWA reauthorization battle in Congress and how vehement opposition to the provisions aimed at helping immigrant women amplifies the continuing challenges that battered immigrants face. Importantly, the Article examines how the status of the immigrant outsider intended beneficiary (e.g., the immigrant victims encompassed in VAWA) affects the ways in which legislation is drafted, lobbied, and ultimately passed or rejected. Part III then ties together the immigrant outsider and battered woman identities with subordination and citizenship theories and stresses and examines how as the most vulnerable and marginalized population, battered immigrant women experience heightened and explicit subordination by the political process and, ultimately, institutionalized law and policy.
Next week, the Supreme Court will hear oral arguments in Kerry v. Din, a case involving the doctrine of consular nonreviewability. Below is Timothy Dugdale's second guest post on the case. Here is the first:
Imagine you're Justice Anthony Kennedy. You're the guy who pours good California plonk into the glass of Ruth Ginsburg, enough that the poor woman grabs a snooze while Obama is holding forth on the state of the nation.
You're Anthony Kennedy. You're the guy who wrote Boumediene and expanded upon the functionalism approach to alien rights that you initiated in your concurrence in Verdugo. So now you're sitting there listening to the oral argument in Kerry v. Din. A good lady, a naturalized American, wants to bring her gent over from Afghanistan where he toiled as a functionary in a series of Afghan governments including the Taliban's ignoble regime. Some consular official in Pakistan spoiled the party because he thought the husband might be caught up with terrorists.
The question is: should the consular official be compelled to detail why he refused the visa and does the court have jurisdiction to compel him to do so because a US citizen wants to know?
If I were Kennedy, I'd be less than enthusiastic about answering in the affirmative. The beneficiary of Din's petition is an Afghani seeking initial admittance to the US. He is clearly in the roundhouse of Knauff, Frankfurter's and Jackson's eloquent and humane dissent notwithstanding. The case I'd want to hear about instead is a relative antique - Bruno v. Albright (DC Circuit 1999). Savaaedra Bruno had been in the US on a legitimate L-1 visa. A month before it was due for renewal, he left the country to renew it at the US Consulate in Panama. He was told the visa would be denied based on classified information about drug trafficking from the US Consulate in Bolivia. Bruno hustled back to the US and was admitted after a brief detention. Subsequently, his B1/B2 visa, the only legitimate visa he had left, was revoked and he was deported.
Bruno filed for a waiver of inadmissibility under INA 212 (d)(3) (see Matter of Hranka) which was eventually denied by the INS. Then he filed a petition in district court trying to find out why he was denied a renewed L-1, why his B1/B2 was pulled and why the waiver of inadmissibility denied. The district court refused to take subject matter jurisdiction over the denial of the L-1 and the revocation of B-1/B-2. Consular non-reviewability, you see.
If I were Kennedy, I would be thinking that if the court is going to grant any kind of judicial review of consular decisions, it would be to petitioners who have been previously admitted to the US and can prove either substantial connections to the US or that the US has some sort extraterrestrial control over them. In other words, judicial review of consular decisions should be rooted in the precedent of Plasencia not Knauff. A petitioner, the actual beneficiary of the visa, should have Article III "case or controversy" standing. If you've been lawfully admitted, even as a long-time non-resident, you should be able to know why you can't get back into the United States. Moreover, why the devil should you have to leave the US to renew a perfectly good visa and why aren't you properly protected when you're compelled to do so? Judicial review of consular decisions in such cases should be guaranteed.
The State Department is now using consulates like the one in Toronto near treaty trader border cities - Detroit and Buffalo for example - to process those visas. Imagine you have an approved immigrant I-130 from the USCIS that is ripening while you're on an E-1. You go to Toronto to renew your E-1 and the consular official denies the renewal because he accuses you of "dual intent" even though INA 214 says you can enter and live in the US on a non-resident visa until the I-130 ripens. Conversely, imagine your visa is approved at the consulate in Toronto and you return to the border to re-enter. You've been in the US for over a decade on your E-1 but the border guards treat you like an arriving alien and accuse you of "dual intent." They issue an expedited removal.
But wait there's more. If I were Kennedy, I'd be taking a very close look at Kabenga v. Holder (SD New York 2015). The judge in that case wisely decided that 1252(e)(5) does not bar judicial inquiry into whether the petitioner was actually admissible, despite the border agent's decision on the matter. She made of pointing out the guy had been living legally in the US for thirty years, twenty of which was as a permanent resident. As I've said before, the expedited removal judicial bar and consular non-reviewability are kissing inbred cousins of the same nativist kin. Judicial review of admissibility should be rooted in a functional approach, guided by Boumediene and Verdugo (including, I believe, by Brennan's dissent).
Kennedy may be wanting to nip into his cellar and pour himself a glass of plonk after oral arguments in Din v Kerry. It's a tough case that demands a narrow but just decision. And not necessarily the decision that all the amici advocate.
Timothy Dugdale, Ph.D. Atomic Quill Media http://linkedin.com/in/atomicquill
Wednesday, February 18, 2015
Law School Clinics Release Report Documenting the Devastating Consequences of U.S. Deportations to Haiti
A report documenting the failure of the United States to safeguard the human rights of those it deports to post-earthquake Haiti has been released by the Human Rights and Immigration Clinics at the University of Miami School of Law and the International Human Rights Clinic at the University of Chicago School of Law. The report asks the U.S. government to stop deporting Haitians with criminal records until conditions improve and makes additional recommendations to the U.S., Haiti, and the international community, including the extension of Temporary Protected Status to all Haitian nationals.
The law school clinics collaborated with Alternative Chance/Chans Alternativ, Americans for Immigrant Justice, Haitian Women of Miami (FANM), and the Institute for Justice & Democracy in Haiti to conduct extensive fact-finding about the treatment of men and women who were deported on account of past criminal convictions, including interviews with more than 100 deportees.