Thursday, May 7, 2015

Immigration Article of the Day: The Arc of Reform?: What the Era of Prohibition May Tell Us About the Future of Immigration Reform by Andrew F. Moore

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The Arc of Reform?: What the Era of Prohibition May Tell Us About the Future of Immigration Reform by Andrew F. Moore , University of Detroit Mercy - School of Law April 13, 2015 Georgetown Immigration Law Journal, Vol. 28, No. 3, 2014

Abstract:  This piece develops an observation made by Kevin Johnson (Dean, U.C. Davis School of Law and Immigration Law scholar) that current U.S. policy concerning undocumented immigration is reminiscent of the era of Prohibition. In his book Opening the Floodgate: Why America Needs to Rethink Its Borders and Immigration Laws, 176-79 (2010), Dean Johnson briefly draws a parallel showing how unenforceable laws produce negative consequences such as increased criminalization, excesses by law enforcement officers, and tremendous backlogs in courts. I look back at the history of Prohibition and identify how the movement for a national ban on alcohol found common cause with the nativist movement that produced the first overall quotas on immigration. It was the establishment of quotas and restrictions on visas that generated the legal possibility of a significant number of people in the country who are “illegal”. From this starting point, I trace the history of our treatment of the southern border and the patterns of migration that developed into the problem we have today. In addition to the negative consequences Dean Johnson identifies, I also note several other common themes from the era of Prohibition that are reflected in our current debate over immigration reform and the border: the significance of claims about threats to sovereignty, the inconsistent role of states in enforcement, the similar terms of debate about the importance of law enforcement, and the implications for national identity. The final part of my paper examines our current debate on comprehensive immigration reform. It seems that the lessons Prohibition would teach us are not being heeded. Our current debate is unable address undocumented immigration in the same way our nation confronted the failure of Prohibition, due primarily to the segregated and concentrated nature of the undocumented population and the fact that states are limited in their enforcement efforts. However, demographic shifts in the U.S. and the growing inter-connectedness of the U.S. and its southern neighbors may change the political dynamics. If so, then the history of Prohibition may ultimately provide a valuable lesson. Just as shifts in population in the 1920s doomed Prohibition, so it may be that the future of immigration reform is one of greater freedom of movement across the border rather than more enforcement to keep people out.

KJ

May 7, 2015 in Current Affairs | Permalink | Comments (0)

Wednesday, May 6, 2015

Hillary Clinton Speaks on Immigration in Nevada

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Presidential hopeful Hillary Clinton was in Las Vegas yesterday to talk about immigration.

Before I get to what she said, I have to ask: What's up with the democratic party reserving Nevada for talks on immigration? President Obama went to Del Sol High School twice. Hillary broke the trend by visiting Rancho High School (so, suck it, Del Sol Dragons).

I mean, I love Nevada. My husband was born there. I have traveled to the state innumerable times. And, as any one of my students could tell you, I will stop a class to ensure students pronounce the state correctly (it's Neh-Vad-Ah, rhymes with "mad").

And, I get it, Nevada is divided on the issue of immigration.

But so much of the country genuinely cares about immigration. Maybe it's time for the democratic party to give Colorado some time. They're still a swing state, according to Politico.

This is a long wind-up to what Clinton actually said about immigration. In short, she said two things:

  • On a Path to Citizenship for Undocumented Americans: "we can't wait any longer, we can’t wait any longer for a path to full and equal citizenship... I will fight for comprehensive immigration reform and a path to citizenship for you and for families across our country."
  • On Executive Action: "And, if Congress refuses to act, as President I will do everything possible under the law to go even further."

-KitJ

May 6, 2015 in Current Affairs | Permalink | Comments (0)

What You Don't Know About Immigration

What You Don't Know About Immigration is a HuffPo piece penned by Bronwyn Lea, a lawfully-present nonimmigrant. The article details the tenuousness of her nonimmigrant status, and the difficulties she's faced in an effort to obtain greater permanency (a green card), despite being present lawfully, speaking English, having graduate degrees, and birthing USC children. She writes:

What I want you to know is that there is no line. Immigration is not like Disneyland, where if you pay enough money and queue patiently for several hours, anyone can ride Space Mountain. There is not a single line that I can stand in on my own merit. Even with language and education and money and privilege aplenty, even though I don't come from India or China or Mexico, there is no line for me. So, I'm holding my husband's hand while he stands in that elusive, exclusive line; and we're hoping for the best.

It's a nice, short piece that would work well in class. Perhaps it could even be paired with the Thronson exercise.

-KitJ

May 6, 2015 in Current Affairs, Teaching Resources | Permalink | Comments (0)

When I 'came out' as Mexican

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In this interesting CNN op/ed, freelance journalist Elizabeth Elizalde talks about her now-proud Mexican identity and how her Mexican father tried to shield her from discrimination by advising her "Don't say you're Mexican."  But she "looked Mexican" and, even as a U.S.-born citizen, experienced the familiar taunt "Go back to Mexico!"

KJ

May 6, 2015 in Current Affairs | Permalink | Comments (0)

Arizona Court: DACA Recipients Eligible for In-State Fees for Colleges and Universities

A judge in Phoenix, Arizona yesterday ruled that recipients of Deferred Action for Childhood Arrivals (DACA) who otherwise satisfy residence requirements can pay the same tuition at Arizona colleges and universities as other Arizona residents. Maricopa County Superior Court Judge Arthur Anderson ruled the federal government determines who is in the United States legally and rejected arguments of the Arizona Attorney General's Office that DACA recipients are in the country illegally and therefor are not eligible for in-state fees.  Here is a copy of the ruling.  Hat tip to Dan Kowalski.

Click here for more on this story.

KJ

May 6, 2015 in Current Affairs | Permalink | Comments (0)

Mike Huckabee for President!?!?

 

The latest candidate for the Republican nomination for President is none other than former Arkansas Governor Mike Huckabee.

Huckabee's stance on immigration is a bit different than the other declared candidates. In January 2015 on Meet the Press, Huckabee said he stands by his view when he was governor of Arkansas that the children of undocumented immigrants should receive the same educational opportunities as citizens, but added that he would revoke President Obama's Deferred Action for Childhood Arrivals program because the President in his view lacked the authority to adopt the program.  Huckabee also said during the interview that he wants to control the borders better.

The Huckabee for President website stakes out these general positions on "Immigration & Border Security":

"America has an immigration crisis on its hands, and it’s time for the federal government to do its job. Without a secure border, nothing matters.

We have drug cartels running reckless on our southern border, and the Washington establishment wants to rewards illegal immigrants with amnesty and citizenship.

 As President, I will:

  Reject President Obama's unconstitutional executive orders.
 
  Oppose amnesty.
 
  Secure the border now.

If you reward people who play outside the rules and punish people who live within the rules, pretty soon nobody is going to play by the rules. We are a nation of immigrants, but we are also a nation of laws."

 

In the summer of 2014, when tensions ran high in Murrieta, California as local protesters sought to bar Central American immigrants from their community, Huckabee offered support for the concerns of the protesters.

  

So far, of the declared candidates for President, only Hillary Clinton supports a full path to citizenship for certain groups of undocumented immigrants.

KJ

May 6, 2015 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Are Immigrants a Shot in the Arm for the Local Economy? by Gihoon Hong and John McLaren

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Are Immigrants a Shot in the Arm for the Local Economy? by Gihoon Hong, Indiana University South Bend and John McLaren, University of Virginia; NBER April 2015 NBER Working Paper No. w21123

Abstract: Most research on the effects of immigration focuses on the effects of immigrants as adding to the supply of labor. By contrast, this paper studies the effects of immigrants on local labor demand, due to the increase in consumer demand for local services created by immigrants. This effect can attenuate downward pressure from immigrants on non-immigrants' wages, and also benefit non-immigrants by increasing the variety of local services available. For this reason, immigrants can raise native workers' real wages, and each immigrant could create more than one job. Using US Census data from 1980 to 2000, we find considerable evidence for these effects: Each immigrant creates 1.2 local jobs for local workers, most of them going to native workers, and 62% of these jobs are in non-traded services. Immigrants appear to raise local non-tradables sector wages and to attract native-born workers from elsewhere in the country. Overall, it appears that local workers benefit from the arrival of more immigrants.

Institutional subscribers to the NBER working paper series, and residents of developing countries may download this paper without additional charge at www.nber.org.

KJ

May 6, 2015 in Current Affairs | Permalink | Comments (0)

Tuesday, May 5, 2015

Feliz Cinco de Mayo

GOPer and still-not-announced presidential hopeful Jeb Bush wants to wish you (or, you know, future Latino voters) a feliz cinco de mayo, en español!

 

-KitJ

May 5, 2015 in Current Affairs | Permalink | Comments (0)

Rethinking Global Protection: New Channels, New Tools

Today's refugee protection regime, established in the aftermath of World War II, is ill-equipped to meet the protection needs of contemporary displacement situations. Recent crises in Syria, Yemen, the Central African Republic, Iraq, and elsewhere have put the international protection system under unprecedented strain, with numbers of displaced people at highs unseen in decades. At the same time, strengthened border security in prosperous countries has left few legal channels for forcibly displaced people to enter their borders to apply for asylum, work, or join family members—making dangerous irregular migration the only option for many.

While there is no reference to humanitarian assistance in the 1951 Convention relating to the Status of Refugees, this has become the default response to refugee crises—with limitations that are now inescapably clear. The governments of western industrialized countries are spending huge amounts of money on systems that are not producing the results—in terms of safety, security (both personal and national), protection of human rights, and economic advancement—desired by their citizens as well as by displaced people.  

A new report from the Migration Policy Institute’s Transatlantic Council on Migration, Rethinking Global Protection: New Channels, New Tools, sketches the sources of strain on the international protection regime and outlines two new avenues that have the potential to reinvigorate it: development- and international mobility-focused approaches

This report explores the main sources of strain on the existing system of protection, and examines the two most promising avenues for strengthening the system: development- and mobility-focused approaches. It makes the case for a robust, cooperative international effort to go beyond humanitarian assistance and incorporate new tools and new channels for the protection of the displaced.

As the report argues, two new approaches in particular have the potential to refit and reinvigorate the protection regime. One involves integrating development programming with the traditional care-and-maintenance models of protection to empower refugees to use their skills and energies to provide for their own livelihoods, by granting them the right to work—in cooperation with host communities. The second approach would open channels of international mobility that might include labor migration schemes, family reunification with relatives already settled elsewhere, and international study and training programs, which would help refugees achieve both security and self-sufficiency. Incorporating development and mobility approaches to protection into international cooperative efforts could prove to be an effective way to create a more sustainable and dynamic response to forcible displacement.

KJ

May 5, 2015 in Current Affairs | Permalink | Comments (0)

Beth Lyon to Open Cornell Farmworker Clinic

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Cornell Law School has announced that Beth Lyon , currently at Villanova University School of Law. will be joining the faculty this summer. She will be developing and directing a new Farmworker Clinic, which will be offered for the first time during the fall semester 2015.   The clinic will serve the legal needs of farmworkers in Western New York

Beth developed the first farmworker clinic in the country at Villanova in 2001, and is a respected scholar in the areas of immigrant workers, international law, and clinical legal education.

KH

 

May 5, 2015 in Current Affairs | Permalink | Comments (0)

Is Immigraton Debate Caught in a "Time Warp"?

Gerald F. Seib at the WSJ has a provocative new article: Immigration Debate Caught in a Time Warp.

Seib argues that, by focusing on unauthorized Hispanic migration, immigration debate is caught in a "time warp" that misses "the immigration issues that really matter today."

In support of his thesis, Seib notes that China, not Mexico, is the country sending the most immigrants to the U.S. today, border apprehensions are down, and more Mexicans are returning to Mexico than are entering the United States.

Seib quotes William Frey of the Brookings Institution who argues that the real immigration issue is the country's demographic shifts - specifically the slow growth and eventual decline in the country's white population. A new immigrant labor force is, Frey concludes, "absolutely necessary."

Seib concludes:

[D]iscussion is fixated on securing a southwest border that, evidence indicates, is significantly more secure than it was a decade ago, and on deciding what to do about the 11 million undocumented aliens already here, who, everybody really knows, aren’t going anywhere, unless they choose to leave. Should they be given a “path to citizenship” or a “path to legal status,” and would either of those represent a form of “amnesty”?

Those are important and emotional questions, to be sure—but also more of the past than the future.

-KitJ

May 5, 2015 in Current Affairs | Permalink | Comments (0)

DC Circuit Skeptical of Standing in Challenge to Expanded Deferred Action, A Circuit Split in the Works?

Last December, a federal district court dismissed on standing grounds challenges by Maricopa County (Arizona) Sheriff Joe Arpaio and others to President Obama's expanded deferred action program.  Josh Gerstein on Politico.com reports on the oral arguments in that case before a three judge panel (Janice Rogers Brown, Sri Srinivasan, Nina Pillard) of the U.S. Court of Appeals for the District of Columbia Circuit

According to Gerstein, Arpaio's attorney encountered some tough questioning.  "Srinivasan and Pillard, both Obama appointees, seemed to lean against Arpaio on the standing issue. Brown, a George W. Bush appointee, was harder to read."

Similar standing issues are before the Fifth Circuit in Texas v. United States, in which 26 states also have challenged the Obama administration's expanded deferred action program.  The court in April heard oral argument on a stay of a preliminary injunction barring implementation of the new program.

Two challenges to the expanded deferred action programs are percolating in the circuit courts.  We will see if a split develops, which would almost certainly assure Supreme Court review to resolve the split.

KJ

 

May 5, 2015 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Tales of Color and Colonialism: Racial Realism and Settler Colonial Theory by Natsu Taylor Saito

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Tales of Color and Colonialism: Racial Realism and Settler Colonial Theory by Natsu Taylor Saito, Georgia State University College of Law 2015 Florida A & M University Law Review, Vol. 11, 2015, Forthcoming Georgia State University College of Law, Legal Studies Research Paper No. 2015-07

Abstract: More than a half-century after the Civil Rights Era, people of color remain disproportionately impoverished and incarcerated, excluded and vulnerable. Legal remedies rooted in the Constitution’s guarantee of equal protection remain elusive. This article argues that the “racial realism” advocated by the late Professor Derrick Bell compels us to look critically at the purposes served by racial hierarchy. By stepping outside the master narrative’s depiction of the United States as a “nation of immigrants” with opportunity for all, we can recognize it as a settler state, much like Canada, Australia, and New Zealand. It could not exist without the occupation of indigenous lands, and those lands could not be rendered profitable without imported labor. Employing settler colonial theory, this article identifies some of the strategies of elimination and/or subordination that have been — and continue to be — used to subordinate Indigenous peoples, Afrodescendants, and migrants of color in order to further settler state goals and maintain a racialized status quo. It suggests that further analysis of these strategies will help us find common ground in the diverse experiences of those deemed Other within the United States, and that exercising our internationally recognized right to self-determination — a primary tool of decolonization — may prove more effective than formal equality in dismantling structural racism.

KJ

May 5, 2015 in Current Affairs | Permalink | Comments (0)

Monday, May 4, 2015

Immigrant and Refugee Workers in the Early Childhood Field: Taking a Closer Look

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The face of the young child population in the United States is rapidly changing. Today, children of immigrants account for one in four of all those under age 6, and represent all the net growth in this population since 1990. With research consistently showing the importance of early learning experiences in setting the stage for children's healthy development and academic success, it is increasingly clear that these demographic changes point to the need for a diverse, well-qualified early childhood education and care (ECEC) workforce to deliver linguistically and culturally competent care.

At the same time, just as the number and share of children of immigrants have grown substantially, the foreign-born share of ECEC workers has also risen: immigrants now account for nearly one-fifth of the overall ECEC workforce. However, these immigrant workers—and the linguistic and cultural diversity that they bring to the field—are highly over-represented in lower-skilled and lower-paying sectors of the profession such as family-based child-care workers; few hold leadership positions as center directors or work as prekindergarten (pre-K) teachers. Despite the increasing demand for culturally and linguistically sensitive ECEC services, these competencies are often not recognized as important for ECEC workers; less than one-quarter of the workforce speaks a language other than English, and there is a mismatch between the growing diversity of languages spoken by immigrant children and families and the languages typically spoken by the ECEC workforce.

This Migration Policy Institute report aims to fill gaps in knowledge about ECEC workforce trends and, in particular, the growing share of immigrants in this field. The primary objective is to gain a better understanding of the unique characteristics of immigrant workers in order to ensure that their needs are reflected in policy efforts that seek to expand and improve ECEC services for young children. The report examines demographic and socioeconomic trends in both the immigrant-origin child population (ages 5 and under) eligible to enroll in ECEC programs as well as the ECEC workforce in the United States, and goes on to discuss policy implications and opportunities to support the advancement of immigrant ECEC workers as part of an overall effort to improve the quality of the early childhood workforce.

KJ

May 4, 2015 in Current Affairs | Permalink | Comments (0)

GOP Presidential Hopefuls Talk Immigration at Conservative Summit

The conservative National Review Institute Ideas Summit took place Thursday through Saturday last week. It was an "invitation only" event, which might explain why you didn't attend.

But GOP presidential hopefuls Bobby Jindal and Marco Rubio were present. And David Weigel over at Bloomberg has the skinny on what the two said about immigration. Weigel provides the following quotes:

  • Jindal: "I do think we need to increase the number of people coming through the front door... One of the dumbest things we do right now is in the number of people with advanced degrees that we kick out."
  • Rubio: "Among the problems I have with the groups that advocate for immigration reform—some of them—is that they approach this debate with the argument that they have rights... It's not a right. You're appealing to our best interests as a country. You're appealing to our morality as a people. But you can't appeal to a right. There is no right to illegally immigrate anywhere in the world."

It looks like immigration will be front and center in the GOP primaries.

-KitJ

May 4, 2015 in Current Affairs | Permalink | Comments (0)

Drug Cartel Violence in Michoacán, Mexico

Guest blogger: Lorena Caldera – second-year graduate student, University of San Francisco School of Education

This semester I was given the opportunity to volunteer at Centro Legal de La Raza, a non-profit organization in Oakland, which provides free and low-cost legal aid services to low-income communities in the Bay Area. In conducting research for a country conditions report on the drug cartel violence in Michoacán, Mexico, I interviewed two young women, both in their early twenties and originally from Mexico, who were in the process of applying for asylum in the U.S. From their stories I learned of the severe and inhumane violence that is being perpetuated in Michoacán, Mexico, specifically, Apatzingan and Uruapan, Michoacán, by two dominant drug cartels in this area, Grupos de Autodefensa Comunitaria (Self-defense Groups) also known as Autodefensas, and Los Caballeros Templarios Guardia Michoacana (Knights Templar—Guard of Michoacan), also known as Los Templarios. In an effort to support these individuals with their asylum cases, do justice to their stories, and draw light to this human rights issue, I offer these views.

As was communicated to me by Maria and Lourdes (pseudonyms for interviewees), young teenage girls are being targeted and forced into prostitution by these drug cartel groups, and disappearing in numbers-fold. It is a commonplace understanding in neighborhoods where these groups dominate that if you are a beautiful young girl, you will eventually be approached by one of these drug cartel representatives and coerced to provide sexual favors for their chiefs/leaders. Young women who refuse to partake in these sex demands are threatened with violence and death threats against their family and loved ones. In a desperate attempt to protect themselves from these gender-based forms of violence, young Mexican women are escaping to the U.S., primarily California.

In addition to targeting young Mexican women, drug cartels also are zoning-in on small business owners in the cities of Apatzingan and Uruapan. Mexican nationals in towns throughout Michoacán, Mexico, report that even the smallest of business owners, including fruit and produce stand owners, are at risk of being confronted by the Knights Templar or the Self-Defense Groups, who demand a monthly monetary levy from their miniscule profits. Again, intimidation tactics and death threats against small business owners are used to coerce business owners into acquiescing with the drug cartels’ extortion and monetary demands. The effects of this drug cartel levy can be financially and emotionally devastating for countless small business owners and their families, as evidenced by small businesses filing for bankruptcy and closing down due to the drug cartels taking their scarce profits. In some cases, small business owners forgo their most basic of personal and family needs such as a daily meal to keep their humble businesses operating and be able to pay the monthly tariff that the drug cartels demand. Per Maria and Lourdes, small business owners who have refused to cooperate with the drug cartels have been found dead, their bodies viciously tortured, and/or have had someone in their family murdered.

Second, in my interviews with Maria and Lourdes, I was informed that the drug cartels have been aggressively evacuating families from their homes in Apatzingan and Uruapan, Michoacán, so as to use these properties for their drug and criminal operations. Many families have been left homeless and forced to flee to nearby cities to temporarily stay with relatives. In instances where no family members are available, entire families have fled to California seeking safety and asylum.

Moreover, the drug cartels have affected other aspects of Mexican society, including access to schools and higher education. College students living in surrounding rural areas in Michoacan, Mexico, who commute to the universities in nearby cities, have been faced with withdrawing from school due to the drug cartel violence that occurs on buses en route to school. Buses traveling to the city from rural areas in Michoacán, Mexico, have been known to be terrorized and ransacked by drug cartels looking to take anything that is of monetary value from bus riders, mostly students and workers. It is typical for violence and feuds between rival cartels to ensue in broad daylight, thereby obstructing the roads traveled by buses en route to school. Thus, because of the risks and dangers involved with traveling to the university, the educational and career opportunities for young people from the surrounding rural areas and small towns in Michoacán, Mexico, are very limited if non-existent.

Given the well-founded fear that these drug cartels, the Knights Templar and the Self-defense Groups, have instilled in the people of Michoacán, Mexico, Mexican nationals throughout this region are desperately fleeing Mexico and traveling to the U.S. with the hopes of being granted asylum and a chance at a new start for themselves and their families. It is important to note that exposure to the Mexican drug cartels’ inhumane and brutal forms of violence have caused severe trauma, anxiety, insomnia, depression, and posttraumatic stress disorder in these asylum applicants, especially their children. Despite the atrocities these individuals have seen in their homes in Mexico, they still have aspirations for a better future that includes the American Dream—achieving a higher education and working to provide for their families. In view of that, these groups of people, who are being persecuted and forced out of their homes through no fault of their own, represent the ideal asylum applicant. On a personal note, my stance is that Mexican nationals, who are fleeing Michoacán, Mexico, due to the drug cartel violence in their home country, should be granted asylum in the U.S. in accordance with asylum eligibility laws. It would be irresponsible, unethical, and unjust for this country not to grant asylum.

bh

May 4, 2015 | Permalink | Comments (0)

Coke's Pro-Immigration Message


Photo via Undocumedia

Have you noticed these in the grocery store? Now you can "Share a Coke with a Dreamer."

Sure, maybe Coke just was thinking of of dreamers in the John Lennon sense. But I'm choosing to see these as a pro-DREAMer message

It's not like Muhtar Kent, the CEO of Coca-Cola Co., has been shy on immigration. In 21013, he penned an op-ed for USA Today in favor of immigration reform.

And in 2014, Coke ended up in the news for it's multilingual version of "America the Beautiful" superbowl ad, which Glen Beck, for one, saw as an "in your face" effort by Coke to "divide people."

I say, way to go Coke. I'd have bought a can myself, but, you know, sugar and caffeine. When you develop "Share a Fresca with a Dreamer," I'll be all in.

-KitJ

May 4, 2015 in Current Affairs | Permalink | Comments (0)

Carly Fiorina for President?!?!

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Joining Republican Senators Ted Cruz, Rand Paul, and Marco Rubio, business executive Carly Fiorina, who unsuccessfully ran for the Senate against Barbara Boxer (D-CA) in 2010,  reportedly will join the race later today for the Republican nomination for the Presidency.

On immigration, Fiorina has opposed comprehensive immigration reform (while supporting the DREAM Act) and opposed any "amnesty" for undocumented immigrants.  She has supported a series of bill to reform the immigration system and supported Arizona's efforts at state immigration enforcement (saying that the Obama administration had not been doing the job).  Fiorina is recently quoted as saying that Jeb Bush, who has been a supporter of some kind of comprehensive reform, has it "dead wrong" on immigration.

KJ

May 4, 2015 in Current Affairs | Permalink | Comments (0)

Sunday, May 3, 2015

Protests Against Family Detention

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The Texas Tribune reports that some 500 protesters gathered outside of the Dilley immigration detention facility yesterday, carrying signs and chanting "shut it down."

ICE responded with a statement that Dilley, and similar detention facilities, are "an effective and humane alternative for maintaining family units."

-KitJ

May 3, 2015 in Current Affairs | Permalink | Comments (0)

Saturday, May 2, 2015

Immigration Article of the Day: Confronting Cops in Immigration Court by Mary Holper

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Confronting Cops in Immigration Court by Mary Holper, Boston College - Law School August 25, 2014 William & Mary Bill of Rights, Vol. 23 No. 3, 2015, Forthcoming Boston College Law School Legal Studies Research Paper No. 333

Abstract: Immigration judges routinely use police reports to make life-altering decisions in noncitizens’ lives. The word of the police officer prevents a detainee from being released on bond, leads to negative discretionary decisions in relief from removal, and can prove that a past crime fits within a ground of removability. Yet the police officers who write these reports rarely step foot in immigration court; immigration judges rely on the hearsay document to make such critical decisions. This practice is especially troubling when the same police reports cannot be used against the noncitizen in a criminal case without the officer testifying, due to both the Sixth Amendment’s Confrontation Clause and Federal Rules of Evidence, neither of which apply in immigration court. In these days of the increasing criminalization of immigration law and prioritization of deporting so-called “criminal aliens,” the police report problem is salient, and impacts thousands of noncitizens every year.

This article argues for a right to confront police officers in immigration court by examining three different ways to conceptualize removal proceedings:

(1) in light of the Supreme Court’s 2010 decision in Padilla v. Kentucky, deportation should be considered punishment, thus guaranteeing all of the protections of a criminal trial, including the Sixth Amendment Confrontation Clause;

(2) under the Mathews v. Eldridge case-by-case balancing test of the due process clause, courts should balance the interests at stake and adopt a right to confrontation and cross-examination of police officers in immigration court; and

(3) if deportation is conceptualized as “quasi-criminal” and thus deserving of some, but not all, of the protections guaranteed at a criminal trial, one of those protections should be the right to confront one’s accuser, especially when the accuser is a police officer.

The scholarship has focused on why other rights guaranteed in a criminal trial – court-appointed counsel, freedom from ex post facto laws, freedom from double jeopardy, proportionality principles, and the Fourth Amendment exclusionary rule – should apply to removal proceedings. An overlooked criminal protection is the right to confront one’s accuser in immigration court.

KJ

May 2, 2015 in Current Affairs | Permalink | Comments (0)