Monday, December 1, 2014

Live From Artesia: Day Two, Morning Edition

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Today was my first visit to FLETC - the Federal Law Enforcement Training Center that is the Artesia detention facility.

I arrived at 7:00 a.m. to meet with three clients about what would happen in court that morning. Of course, nothing that we prepared for actually happened. All three cases were continued to later in the week.

I'd heard stories about the surreality of immigration court in Artesia. It was, indeed, surreal. The clients and attorneys sat in front of a large video screen where they interfaced with an extremely pixilated IJ in Denver.

The clients' kids and other families waited in the background - trying, sometimes in vain, to remain quiet.

While the cases today were all bond hearings or continuances of the same, and so less sensitive than merits hearings, it still felt wrong to have the kids in the room.

One adorable young boy, about 3, kept running up to his mom and trying to catch her attention during her bond hearing. I ended up sneaking him off to a corner to try to keep him amused with the few entertainments in the room. He scribbled on a paper airplane and flew said airplane around the "courtroom." He also played with a small dixie cup and a little yellow plastic figurine that looked like a game piece from Candyland.

Another boy, about 5, was disturbing in his quiet. He sat perfectly still, silently watching the somewhat rambunctious 3 year old's antics.

-KitJ

December 1, 2014 in Current Affairs, Photos | Permalink | Comments (0)

Immigration Law Professor Michael A. Olivas: Rock and Roll is Here to Stay!

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ImmigrationProf has discovered immigration law Professor Michael A. Olivas' not-so-secret life.  Often featured on this blog for his influential immigration scholarship, Olivas was our 2010 Immigration Professor of the Year.  Now, he has a radio show devoted to another one of his passions.  The Law of Rock and Roll radio show explores the legal aspects of the stars' careers, cases involving the record companies, and the business of rock and roll.   This legal project grew out of Professor Olivas’ earlier CLE programs on the subject. For several years, he has maintained a growing listserv, Michael’s Rock and Roll Posse, where he comments on all things rock and roll.  I am pleased to be on the listserve.

 

KJ 

December 1, 2014 in Current Affairs | Permalink | Comments (0)

Law Professors Legomsky, Dellinger Hold Press Conference on Immigration Executive Actions

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Prof. Legomsky Issues Statement at National Press Conference on Immigration Executive Actions "President Obama’s Recent Immigration Actions Are Both Legal and Sensible"

Stephen Legomsky, the John S. Lehmann University Professor at Washington University School of Law and former Chief Counsel to the federal immigration services agency, participated in a national press conference on December 1, 2015. He and Professor Walter Dellinger of Duke Law School were the speakers. The press conference was organized by the Center for American Progress and drew 60 journalists from around the United States. Professors Dellinger and Legomsky provided opening remarks and then took questions.

KJ

December 1, 2014 in Current Affairs | Permalink | Comments (0)

Job Opening - ILRC Policy Attorney in DC

From the Immigrant Legal Resource Center:

The Immigrant Legal Resource Center (ILRC) is seeking a full-time policy attorney to represent the ILRC in Washington D.C. on immigration policy issues and to advocate for policies and laws that advance the rights of immigrants.
 
The ILRC is a national nonprofit legal support center located in San Francisco, California. Founded in 1979, we specialize in immigration law, policy, and immigrants' rights.  The ILRC is a team-based organization that makes most of its decisions in a collaborative fashion that allows for significant staff input.  The organization’s work concentrates on three main program areas: (1) building the capacity of attorneys, paralegals, organizers, service providers, immigrants, and others by providing legal technical assistance, trainings, and publications; (2) assisting immigrants with civic engagement projects to help expand immigrants’ rights and political power; and (3) conducting policy and advocacy work related to immigration law and immigrants’ rights.
 
This position’s primary focus involves lobbying members of Congress and the Administration for changes to, and in the implementation of, immigration laws and policies, working with other national advocacy groups and community-based organizations, and providing legislative analysis and technical assistance.

Read more....

bh

December 1, 2014 | Permalink | Comments (0)

Part of the Obama Plan: Expand Provisional Waivers to Spouses and Children of Lawful Permanent Residents

As outlined in detail by the Department of Homeland Security, President Obama's recently announced immigration plan has quite a few components. One of the immigration initiatives is "Expand Provisional Waivers to Spouses and Children of Lawful Permanent Residents":  "The provisional waiver program DHS announced in January 2013 for undocumented spouses and children of U.S. citizens will be expanded to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents.  At the same time, we will further clarify the `extreme hardship' standard that must be met to obtain the waiver."

In a memorandum to Leon Rodriguez, Director of U.S. Citizenship and Immigration Services, DHS Secretary Jeh Johnson states that:

"By this memorandum, I hereby direct U.S. Citizenship and Immigration Services (USCIS) to issue new regulations and policies with respect to the use ofthe I-601A provisional waiver to all statutorily eligible applicants.

As you know, under current law certain undocumented individuals in this country who are the spouses and children ofU.S. citizens and lawful permanent residents, and who are statutorily eligible for immigrant visas, must leave the country and be interviewed at U.S. consulates abroad to obtain those immigrant visas. If these qualifying individuals have been in the United States unlawfully for more than six months and later depart, they are, by virtue oftheir departure, barred by law from returning for 3 or 10 years. Current law allows some of these individuals (i.e., a spouse, son, or daughter of a U.S. citizen or permanent resident) to seek a waiver of these 3-and 10-year bars if they can demonstrate that absence from the United States as a result of the bar imposes an "extreme hardship" to a U.S. citizen or lawful permanent spouse or parent. But, prior to 2013, the individual could not apply for the waiver until he or she had left the country for a consular interview.

In January 2013, the Department of Homeland Security (DHS) published a regulation establishing a process that allows a subset of statutorily eligible individuals to apply to USCIS for a waiver of the 3-and 10-year bars before departing abroad for consular interviews. This "provisional" waiver provided eligible individuals with some level of certainty that they would be able to return after a successful consular interview and would not be subject to lengthy overseas waits while the waiver application was adjudicated. However, the 2013 regulation extended the provisional waiver process only to the spouses and children of U.S. citizens. In 2013 we did not initially extend the provisional waiver to other statutorily eligible individuals-i.e., the spouses and children of lawful permanent residents and the adult children of U.S. citizens and lawful permanent residents-to assess the effectiveness and operational impact ofthe provisional waiver process. To date, approximately 60,000 individuals have applied for the provisional waiver, a number that, as I understand, is less than was expected.

Today, I direct DHS to amend its 2013 regulation to expand access to the provisional waiver program to all statutorily eligible classes of relatives for whom an immigrant visa is immediately available. The purpose behind today' s announcement remains the same as in 2013 -- family unity.

As a related matter, I hereby direct USCIS to provide additional guidance on the definition of "extreme hardship." As noted above, to be granted a provisional waiver, applicants must demonstrate that their absence from the United States would cause "extreme hardship" to a spouse or parent who is a U.S. citizen or lawful permanent resident. The statute does not define the term, and federal courts have not specifically defined it through case law. It is my assessment that additional guidance about the meaning of the phrase "extreme hardship" would provide broader use ofthis legally permitted waiver program.

USCIS should clarify the factors that are considered by adjudicators in determining whether the "extreme hardship" standard has been met. Factors that should be considered for further explanation include, but are not limited to: family ties to the United States and the country ofremoval, conditions in the country of removal, the age of the U.S. citizen or permanent resident spouse or parent, the length of residence in the United States, relevant medical and mental health conditions, financial hardships, and educational hardships. I further direct USCIS to consider criteria by which a presumption of extreme hardship may be determined to exist."

Like other components of the Obama immigration actions, this modest expansion of waiver provisions to spouses and children of lawful permanent residents is designed to facilitate lawful immigration.

KJ 

December 1, 2014 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: The Morality of Law: The Case Against Deportation of Settled Immigrants by Doris Marie Provine

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The Morality of Law: The Case Against Deportation of Settled Immigrants by Doris Marie Provine Arizona State University (ASU) - School of Social Transformation November 16, 2014 Chapter 6 in Closing the Rights Gap: From Human Rights to Social Transformation, edited by LaDawn Haglund and Robin Stryker, Forthcoming

Abstract: Deportation of settled, but unauthorized immigrants offends a basic sense of fairness that citizens apply to each other in law and private life. Fairness in law includes both forgiveness and closure, which are found in ample measure in the domestic law governing crime and punishment, bankruptcy, property, and civil harms. Immigration law remains aloof from this aspect of the mainstream law by virtue of more than century- old court decisions that rest on frankly racist foundations. Those cases draw a thick line between immigrants and citizens based on race, without any constitutional foundation. A more contemporary framing would bring immigration law within mainstream legal principles, including principles of forgiveness and closure. Applied to the situation of settled, but unauthorized immigrants, the power to deport would be restrained by principles that are internal to the morality of law and in line with fundamental principles of human rights.

KJ

December 1, 2014 in Current Affairs | Permalink | Comments (0)

Sunday, November 30, 2014

Live From Artesia: Day One

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I'll be blogging this week from Artesia, New Mexico. I'm here as part of AILA's Artesia Pro Bono project.

I arrived in town just before sunset. The radio was playing The Eagles' Hotel California - I kid you not.

I spent the evening getting a very intense orientation from the wonderful on-the-ground (OTG) team here in Artesia. I was particularly pleased to hear the soothing and familiar voice of immprof Stephen Manning - welcoming us to the OTG team in an innovation lab video, naturally, with psych-up background music.

I have two bond hearings and two continuances to prep for tonight and tomorrow morning. And I expect to meet with additional clients about their bond cases. AILA is trying to secure bond for as many of the Artesia detainees as possible - all of whom are hoping to avoid transfer to Karnes.

-KitJ

November 30, 2014 in Current Affairs, Photos | Permalink | Comments (0)

Part of the Obama Plan: Parole for Families of U.S. Armed Forces Members and Enlistees

Another aspect of the president's recent immigration action is to consider expanding parole for the families of U.S. Armed Forces members and enlistees.

"Parole in place" or PIP (as explained in this post by Margaret Stock) currently covers:

the immigrant parents, spouses, and children of current military members on active duty or who serve in the Selected Reserve of the Ready Reserve, or veterans of such service. [Under PIP, the] USCIS should generally allow such immigrant relatives to be granted an immigration “parole” so that they may adjust to a lawful immigration status while in the United States. Previously, some USCIS offices had required these military family members to leave the United States in order to obtain a lawful immigration status, but the family members’ departure from the United States often triggered a lengthy separation—sometimes more than ten years—because of overseas visa processing rules.

The November 20 memo authored by Secretary of Homeland Security Jeh Johnson directs the USCIS to work with the Department of Defense to issue new policies for PIP that would potentially cover the relatives of USCs or LPRs who "seek to enlist" in the military, though this phrase is unexplained.

The expansion would not cover others types of migrants who might be eligible to enlist such as individuals from America Samoa or Swains Island (who are not U.S. citizens but U.S. nationals), participants in the Military Accessions Vital to the National Interest (MAVNI) program, or DACA recipients. 

The memo also directs the USCIS

to consider the availability of deferred action, on a case-by-case basis, to those now undocumented family members of U.S. military service members and veterans who would be otherwise eligible for parole-in-place, but who were inspected and lawfully admitted to the United States.

-KitJ

November 30, 2014 | Permalink | Comments (0)

Part of the Obama Plan: Expand Deferred Action for Childhood Arrivals (DACA) Program

As outlined in detail by the Department of Homeland Security, President Obama's recently announced immigration plan has quite a few components. One of the immigration initiatives is "Expand Deferred Action for Childhood Arrivals (DACA) Program."  Specifically, the DHS memo explains that

"We will expand eligibility for DACA to encompass a broader class of children. DACA eligibility was limited to those who were under 31 years of age on June 15, 2012, who entered the U.S. before June 15, 2007, and who were under 16 years old when they entered. DACA eligibility will be expanded to cover all undocumented immigrants who entered the U.S. before the age of 16, and not just those born after June 15, 1981. We will also adjust the entry date from June 15, 2007 to January 1, 2010. The relief (including work authorization) will now last for three years rather than two." (emphasis added).

In a memorandum on "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents" to the heads of Immigration and Customs Enforcement, Citizenship and Immigration Services, and Customs and Border Protection, DHS Secretary Jeh Johnson explains the concept of prosecutorial discretion and states that

"I am now expanding certain parameters of DACA and issuing guidance for case-by-case use of deferred action for those adults who have been in this country since January 1, 2010, are the parents of U.S. citizens or lawful permanent residents, and who are otherwise not enforcement priorities . . . . The reality is that most individuals in the categories set forth below are hard-working people who have become integrated members of American society. Provided they do not commit serious crimes or otherwise become enforcement priorities, these people are extremely unlikely to be deported given this Department's limited enforcement resources-which must continue to be focused on those who represent threats to national security, public safety, and border security. Case-by-case exercises of deferred action for children and long-standing members of American society who are not enforcement priorities are in this Nation's security and economic interests and make common sense, because they encourage these people to come out of the shadows, submit to background checks, pay fees, apply for work authorization . . . , and be counted."

The memo announces the following specific measures:

Expanding DACA

-- Remove age cap:  DACA will apply to all otherwise eligible immigrants who entered the United States by the requisite adjusted entry date before the age of sixteen (16), regardless of how old they were in June 2012 or are today. The current age restriction excludes those who were older than 31 on the date of announcement (i .e., those who were born before June 15 , 1981 ). That restriction will no longer apply.

 -- Extend DACA renewal and work authorization to three-years. The period for which DACA and the accompanying employment authorization is granted will be extended to three-year increments, rather than the current two-year increments. Adjust the date-of-entry requirement. In order to align the DACA program more closely with the other deferred action authorization outlined below, the eligibility cut-off date by which a DACA applicant must have been in the United States should be adjusted from June 15, 2007 to January 1 , 2010.

In further expamding deferred action, Secretary Johnson 

"directed USCIS to establish a process, similar to DACA , for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis, to those individuals who:

• have, on the date of this memorandum, a son or daughter who is a U.S. citizen or lawful permanent resident;

• have continuously resided in the United States since before January 1 , 2010;

• are physically present in the United States on the date of this memorandum , and at the time of making a request for consideration of deferred action with USCIS;

• have no lawful status on the date of this memorandum;

• are not an enforcement priority as reflected in the November 20 , 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum ; and

• present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.

This component of the Obama initiative includes a modest extension of the current DACA program, most notably eliminating the age cap of 31 years on DACA eligibility (which precluded relief for undocumented immigrants like Sergio Garcia, now licensed to practice law in California) and grenting deferred action and work authorization for 3, not 2, years.These are significant changes to the recipients of DACA relief.

The memorandum also outlnes the expanded deferred action program for the undocumented parents of U.S. citizens and lawful permanent residents.  This new program will be discussed in a subsequent post.  The new deferred action program will benefit the many undocumented parents of U.S. citizen children born in the United States.  A considerable number of families today have what are called mixed immigration statuses, with some parents undocumented with citizen children born in the United States.

There was one notable non-change to the deferred action rules that received considerable attention.  There had been talk of extending DACA relief to the parents of DACA recipients.  The Office of Legal Counsel concluded that extension of deferred action to the parents of DACA recipients might not be lawful and it is not part of the President's initiative.

KJ

November 30, 2014 in Current Affairs | Permalink | Comments (0)

Saturday, November 29, 2014

Part of the Obama Plan: High-Skilled Workers

As Kevin noted yesterday, part of President Obama's immigration action concerns high-skilled workers. Two aspects of that plan merit further examination: visa portability and employment opportunities for spouses.

First, the employment-based visa system currently restricts the ability of workers to change jobs without jeopardizing pending applications for lawful permanent resident (LPR) status. Jen Johnson's November 20 memo identifies the root of this problem: Workers can change jobs only if the new jobs is in a "same or similar" occupational classification as their old job. Secretary Johnson, quite reasonably, calls for additional agency guidance on this language to ensure that workers can, for example, accept promotions within their field without jeopardizing an LPR application.

In a different Johnson memo, and included in a White House Fact Sheet on the immigration action, is discussion of spouses of highly-skilled workers. The Fact Sheet says: "DHS is finalizing new rules to give certain H-1B spouses employment authorization as long as the H-1B spouse has an approved LPR application."

Indeed, the Obama administration had announced plans to allow spouses of H1-B holders to work back in May 2014. The idea behind allowing spouses of H1-B holder to work is, as DHS Secretary has Mayorkas stated, to "encourage highly skilled, specially trained individuals to remain in the United States" and to maintain U.S. "competitiveness with other countries that attract skilled foreign workers and offer employment authorization for spouses." While the rules were proposed in May, they haven't yet been finalized. Apparently, they will be soon.

As Kevin noted, these are "modest attempts... to marginally improve the ability of high-skilled workers to immigrate and remain in the United States." Nonetheless, it's important to understand that the president's immigration action is not limited to unauthorized migration - he is taking some steps concerning lawful migration.

-KitJ

November 29, 2014 in Current Affairs | Permalink | Comments (0)

Switzerland Votes on Strict Immigration Limits

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Neil MacLucas and John Revill in the Wall Street Journal report that "Switzerland will vote Sunday on an initiative to severely restrict immigration growth, the second time this year the country has gone to the polls over whether to curb an influx of foreigners. Swiss voters will be asked if they approve of limiting net annual immigration to 0.2% of the country’s total population. If passed, net immigration growth to Switzerland will be capped at roughly 16,000 people per year, compared to the average of almost 70,000 foreigners per year over the last decade. The Swiss Association of Ecology and Population, which collected the signatures necessary to force the vote, says the cap is needed because immigration is threatening Switzerland’s natural resources and taxing the nation’s public transportation and housing infrastructure. The ballot initiative is known as Ecopop, shorthand for the name of the group."

In February, Swiss voters approved a referendum  that requires the country to re-introduce quotas on migrants from the European Union. That measure, runs afoul of a treaty between Switzerland and the European Union that forbids immigration quotas.

UPDATE (11/30):  Bloomberg reports that Swiss voters rejected the referendum to introduce strict immigration quotas. Voters turned down the initiative known as Ecopop by 74 percent to 26 percent, according to projections by Swiss television SRF. The measure “Halt Overpopulation -- Preserve the Natural Environment” would have limited annual immigration to just 0.2 percent of the country’s permanent resident population.

KJ

November 29, 2014 in Current Affairs | Permalink | Comments (0)

Robert Morgenthau: More executive action, please

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In an op/ed in the New York Daily News, Robert Morgenthau, the legendary former New York City district attorney,applauds President Obama's executive action on immigration and calls for more, listing these specific steps.

"First, the administration should reallocate resources to provide support to El Salvador, Honduras and Guatemala, three countries have become significant sources of illegal migration to the U.S."

"Second, the administration should exercise greater oversight of Immigration and Customs Enforcement, which continues to vigorously detain and remove immigrants who have no criminal convictions or were found guilty of only minor infractions."

"Third, because many detainees are not criminals, there is no reason the administration should keep everyone locked up for weeks, months or even years at a cost of at least $120 per day."

KJ

November 29, 2014 in Current Affairs | Permalink | Comments (0)

Friday, November 28, 2014

Part of the Obama Plan: Support High-skilled Business and Workers

As fleshed out in some detail by the Department of Homeland Security, President Obama's recently announced immigration plan has quite a few components. One item on the list of immigration initiatives is "Support High-skilled Business and Workers.  DHS will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and strengthen and expand opportunities for students to gain on-the-job training. For example, because our immigration system suffers from extremely long waits for green cards, we will amend current regulations and make other administrative changes to provide needed flexibility to workers with approved employment-based green card petitions."

DHS Secretary Jeh Johnson in a memorandum to the heads of U.S. Citizenship and Immigration Services and Immigration and Customs Enforcement begins:

"I hereby direct the new policies and regulations outlined below. These new policies and regulations will be good for both U.S. businesses and workers by continuing to grow our economy and create jobs . They will support our country's high-skilled businesses and workers by better enabling U.S . businesses to hire and retain highly skilled foreign-born workers while providing these workers with increased flexibility to make natural advancements with their current employers or seek similar opportunities elsewhere. This increased mobility will also ensure a more-level playing field for U.S. workers. Finally, these measures should increase agency e f ficiencies and save resources."

The memorandum identifies the following steps to be taken:

Modernizing the Employment-Based Immigrant Visa System

Reforming "Optional Practical Training" for Foreign Students and Graduates from U.S. Universities

Promoting Research and Development in the United States Bringing Greater Consistency to the L-lB Visa Program

Increasing Worker Portability

The details in the memorandum offer modest attempts at regulatory planning and reform to marginally improve the ability of high-skilled workers to immigrate and remain in the United States.

KJ

November 28, 2014 in Current Affairs | Permalink | Comments (0)

Eat Turkey, Become American

Marie Myung-Ok Lee offers a heartwarming story about the meaning of Thanksgiving and its importance to her Korean immigrant parents.

KJ

November 28, 2014 in Current Affairs | Permalink | Comments (0)

SALT STATEMENT ON FERGUSON, MISSOURI

There has been much in the news about the recent events in Ferguson, Missouri.  Here is a letter on that subject posted on the Society of American Law Tecahers website:

 

November 21, 2014

The Society of American Law Teachers (SALT) calls for the upholding of the rule of law in relation to the death of Michael Brown. Michael Brown’s death and the subsequent protests in Ferguson remind us of the consequences when the community loses faith and trust in America’s policing and judicial systems. SALT is concerned that violence by the police against unarmed Black people is becoming increasingly common. The actions of the police in Ferguson and the community reaction are a microcosm of the inequalities and profound mistrust that pervade many communities around the country that must be addressed.

SALT and its members are committed to ensuring that the system of justice in the United States operates effectively in a manner that affirms the principles of equality and justice. In keeping with our mission, and as a community of engaged law professors, we would like to offer the support and expertise of our members to help address systemic inequities that erode faith in our justice system and to facilitate discussion, dialogue, and concerted action to address the issues that Michael Brown and the Ferguson protests have raised at the local and national level. We must ensure that our system of justice gives historically subordinated populations assurance that the laws are being executed fairly. By acting in solidarity with the people of Ferguson, we seek to promote adherence to and the sanctity of civil and human rights principles in the United States.

In the wake of the events in Ferguson, we call for:

(1) upholding the principles of equality before the law;

(2) implementation of a system of police accountability, oversight and integrity regardless of race, class or social standing;

(3) safeguarding the right to speak freely and peacefully protest and acting to quell excessive police force that inhibits the exercise of these fundamental rights; and

(4) working to eliminate divisive policing and justice policies and practices that demean people of color and view them as objects of threat and fear.


KJ

November 28, 2014 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Human Rights, Immigration, and Border Walls by Moria Paz

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Human Rights, Immigration, and Border Walls by Moria Paz Stanford Law School November 17, 2014

Abstract: The paper examines the way states use space in order to escape human rights obligations. In particular, I focus on one method of architecting space – the building of border walls as an immigration control policy. In recent years, such walls have been installed at an unprecedented rate in order to control inflow of irregular immigrants into wealthy countries. Examples include the US-Mexico Wall, the Israel-Egypt Fence and the two fences that Spain has erected in North Morocco to close off its territories – and thereby Europe itself – from Africa. At the moment, these walls are left largely unregulated by human rights courts and quasi-judicial bodies. But they present adjudicatory institutions with a choice between two contradictory doctrinal traditions: (i) a statist framework that assigns to the state sole authority over immigration, and (ii) a human rights tradition that begins from considerations of the fundamental rights of all individuals and that is external to states’ interests. The former is about exclusion: a state can use a wall built on its own territory to control entry and access to services. The latter is about universal rights that are divorced from territoriality; a state cannot erect a wall to sidestep its obligations under human rights and refugee law. Both systems can be justified, but they cannot easily coexist. Faced with this irreconcilable tension, I use a systematic analysis of jurisprudence on the international, regional and national level to map out three possible approaches that a human rights court can take for the regulation of such border walls. I argue that none of the approaches can be normatively supported. But the current status quo – i.e. leaving walls unregulated – is itself normatively worrisome: it punishes the right people (those whose substantial circumstances merit protection) and rewards the wrong people (those who have the capability to enter, whether due to age, resources, or gender, but whose predicament may not actually call for protection).

KJ

November 28, 2014 in Current Affairs | Permalink | Comments (0)

Thursday, November 27, 2014

Deferred-Action Immigration Status and Employer Alienage Discrimination

Representation for Unaccompanied Children in Immigration Court

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Unaccompanied children are represented by an attorney in only about one-third (32%) of 63,721 cases pending in Immigration Court as of October 31, 2014, according to the latest data from TRAC. Some 43,030 juveniles have not as yet been able to hire an attorney to assist them or to find pro bono representation. For the 21,588 children's cases filed and already decided since the surge of unaccompanied minors from Central America began three years ago, only 41 percent had representation.

Outcomes for unaccompanied children whose cases were filed and decided during the past three years were examined. The preiod from FY 2012 through FY 2014 was selected since it covers the recent surge in cases involving unaccompanied minors from Central America that began in FY 2012. With the updated data current through the end of October 2014, court records show that over twenty thousand of these cases have already been decided. Here are the results for children arriving during this latest surge:

Outcome if attorney present. In almost three out of four (73%) of the cases in which the child was represented, the court allowed the child to remain in the United States. The child was ordered removed in slightly more than one in ten (12%) of these cases. And in the remaining 15 percent the judge entered a "voluntary departure" (VD) order. (While with a VD order the child is required to leave the country, the child avoids many of the more severe legal consequences of a removal order.)

Outcome if no attorney. Where the child appeared alone without representation, only 15 percent were allowed to remain in the country. All the rest were ordered deported — 80 percent through the entry of a removal order, and 5 percent with a VD order.

KJ

November 27, 2014 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: The Protection of Irregular Immigrants’ Rights in the Jurisprudence of the Inter-American Court of Human Rights: Developments and Challenges by Ana Beduschi,

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The Protection of Irregular Immigrants’ Rights in the Jurisprudence of the Inter-American Court of Human Rights: Developments and Challenges by Ana Beduschi, University of Exeter November 13, 2014

Abstract: This article discusses the contribution of the Inter-American Court of Human Rights to the development of a human rights-based approach to international immigration law. In the late 1990s the Inter-American Court of Human Rights witnessed a period of extraordinary judicial activism. It pushed the boundaries of human rights to the realm of international immigration, including the protection of rights of irregular immigrants. Accordingly, this article argues that the Inter-American Court has the potential to promote an extended form of protection of irregular immigrants’ rights in Latin America. It also suggests that principles developed by the Inter-American jurisprudence have the potential to effect changes in the European sphere. It is, however, submitted that the Inter-American system still has many challenges to overcome, notably concerning compliance with judicial decisions and effectiveness of the protection of rights. These challenges, which are not purely legal or institutional, are strongly dependent on the cultural, political and societal Latin American context. They may therefore cast some shadow on the development of a stronger humanized approach to international immigration.

KJ

November 27, 2014 in Current Affairs | Permalink | Comments (0)

Immigration Law Professors Weigh in on Executive Action on Immigration

President Obama's immigration initiatives have been somethinbg of a full employment act for immigration law professors.  ImmigrationProf has posted many op/eds. articles, and other commentary on teh President's actions.  In addition, catching the attention of the national news, a letter signed my 135 immigration law professors states:

"We write as scholars and teachers of immigration law who have reviewed the executive actions announced by the President on November 20, 2014 . It is our considered view that the expansion of the Deferred Action for Childhood Arrivals (DACA) and establishment of the Deferred Action for Parental Accountability (DAPA) programs are within the legal authority of the executive branch of the government of the United States. To explain, we cite federal statutes, regulations, and historical precedents. We do not express any views on the policy aspects of these two executive actions."

In a Balkinization symposium on "Administrative Reform of Immigration Law," many immigration professors (imcluding Adam Cox, Cristina Rodriguez, David Martin. Alina Das, and Steve Legomsky) and other law professors weigh in on the Obama immigration initiatives (with particular focus on the Office of Legal Counsel's memorandum on the lawfulness of the President's  immigration initiatives (and finding that extension of deferred action to the parents of Deferred Action to Childhood Arrival recipients might not be lawful).

KJ

November 27, 2014 in Current Affairs | Permalink | Comments (0)