Thursday, September 28, 2017
President Trump, during his campaign, promised a “deportation task force” to swiftly deport the eleven million undocumented noncitizens in the United States. Within his first week in office, he issued two Executive Orders calling for stricter immigration enforcement and a stronger border. The Department of Homeland Security (“DHS”) Memos implementing his interior and border enforcement executive orders indicate that DHS will use every tool to enforce the immigration laws, expanding the use of procedural tools that bypass immigration courts and ensuring that noncitizens remain detained during these “shadow” deportations. Two of these procedural tools, administrative removal and expedited removal, allow an Immigration and Customs Enforcement (“ICE”) officer or Customs and Border Protection (“CBP”) officer – the immigration police – to sign off on arrest and detention with no involvement of an immigration judge. Such a seizure without a probable cause finding by a neutral, detached magistrate, if occurring within the criminal justice system, would clearly violate the Fourth Amendment.
In this article, I build off of prior scholarship and litigation examining Fourth Amendment violations in immigration law to argue that the arrest and detention pursuant to administrative and expedited removal is an unreasonable seizure. I propose a framework for thinking about the Fourth Amendment violations at issue in these shadow deportation procedures. This framework focuses on the reasonableness of the seizure, not the status of the person harmed by the seizure, and not whether the proceedings that follow are punishment. In doing so, this article examines how the Fourth Amendment’s core concerns are present in the immigration law enforcement context notwithstanding immigration law’s plenary power. As such, the article contributes to the scholarship that has both challenged immigration law’s historical exceptionalism and mapped where the plenary power has not trumped.
Wednesday, September 27, 2017
Brandon Stanton's most recent posts record interviews with DREAMers, like this one:
I was on a leadership team in 5th grade. At the end of the year we were supposed to take a trip to Washington DC. We held fundraisers and everything. But when it was time to go, I didn’t have the identification papers to buy a plane ticket. So our teacher Ms. Rivera decided that we’d take a bus. Just so I could go too. That trip changed my life. It made me want to be a lawyer. And Ms. Rivera became one of the closest people in my life. She always kept in touch. She basically watched me grow up...
From Human Rights Watch:
The White House today reported to Congress that it will lower the US refugee admissions program annual ceiling for fiscal year 2018 to 45,000. It is the lowest annual ceiling since the program was established in 1980 and comes as the world sees the highest ever number of refugees. President Barack Obama pledged that the US would resettle 110,000 refugees in 2018 when he addressed a refugee summit at the United Nations last year.
The following comment can be attributed to Bill Frelick, refugee rights director at Human Rights Watch:
“President Trump’s decision to lower the US refugee ceiling is an abdication of US leadership at a time of greatest need for the world’s refugees. This action not only cuts a lifeline for thousands of refugees, but sends a message to countries on the front line of the crisis, from Bangladesh to Lebanon to Kenya, that US pledges of support can no longer be trusted.”
On a recent, perfect morning at Johnson Farms in northern Michigan, workers climb wooden ladders high up into the trees, picking bags strapped across their bodies. The branches are heavy with fruit that glows in the morning sun. Their fingers are a blur, nimbly plucking fruit and filling bushel bags: about 50 pounds per load. It's hard, sweaty work.
Apple season was just getting underway on Old Mission Peninsula, a finger of land poking into Lake Michigan, dotted with lush farms.
The pickers range in age from 21 to 65, and all of them are Mexican. As in the rest of the U.S., growers in heavily agricultural northern Michigan rely overwhelmingly on migrant laborers to work the fields and orchards.
According to the farm owners, the workers either came from Mexico on temporary H2A visas or they have paperwork showing they are in the U.S. legally.
Farmers from Georgia to California say they have a problem: not enough workers to harvest their crops.
It's estimated anywhere from half to three-quarters of farmworkers are in this country illegally, and some growers say that President Trump's anti-immigrant rhetoric has made a chronic worker shortage even worse. Read more...
The reggae band Talawa was formed in 2006, and it released 3 records in ten years. The documentary follows the band and their sound engineer during a journey in Central America and the United States motivated by the false expectations of a tour contract. The video is by the International Organization for Migration.
BuzzFeed News first reported the new rule on Monday. It is set to go into effect on Oct. 18 after a public comment period.
Undocumented workers face a new harsh reality under the Trump administration. Federal law’s prohibition of undocumented work has facilitated exploitation because workers fear being brought to the attention of immigration authorities. The current administration’s aggressive stance towards worksite enforcement will only exacerbate abuses against undocumented workers, such as wage theft, dangerous working conditions, or human trafficking.
Given the current climate, this article explores how states and localities can resist the federal prohibition by legalizing undocumented work. We live in times of resistance, with “sanctuary cities” that refuse to cooperate with federal immigration enforcement. Seizing on this moment, state and local resistance can offer more immediate accountability for addressing the plight of undocumented workers while disrupting the ways in which the federal immigration framework defines the illegality of undocumented work. To start, this article reviews how the incongruence between the lived experiences of undocumented workers and the federal immigration framework creates an underclass of workers. Next, it develops a typology of state and local resistance measures that recognize, protect, or promote undocumented work and considers whether these measures can succeed given concerns about federalism and governmental retaliation.
This article concludes by discussing why state and local resistance is worthwhile. Beyond the palpable benefits of addressing exploitation, state and local resistance can help undocumented workers overcome exclusion by increasing their sense of belonging. Community members too benefit from the strengthening of workers’ rights and the contributions to the local economy. At the same time, such resistance changes social norms and provides a powerful critique of the federal prohibition on undocumented work. Ultimately, this article is the first to examine how state and local resistance focused on undocumented work can lend itself to building social movements that promote immigrant inclusion by redefining the legality of undocumented work.
Tuesday, September 26, 2017
Have you heard of "H4 Dreamers" ? The concept was new to me, but interest groups like Skilled Immigrants in America have been tweeting about #H4Dreamers (and creating memes like the one above) for the past few weeks.
Laura D. Francis over at Bloomberg BNA has the details.
The issue is children of H1B workers, particularly workers from India. These children came to the U.S. "accompanying" their parents on an H4 status. But when they turn 21, they are no longer eligible to retain their H4 visas. They need their own status. And right now, that pretty much means seeking an F student visa and hoping to secure their own H1B upon graduation.
Of course, this wasn't what their H1B parents had hoped for. They'd hoped to secure green cards before their children were longer considered, for purposes of immigration law, children.
But green cards for Indian citizens are backlogged. And many H4 children will age out before their parents can obtain LPR status.
Like DREAMers, children of H1B workers grew up in the United States and never envisioned returning to their countries of origin. Their parents argue that H4 Dreamers should perhaps be viewed with even more sympathy than traditional DREAMers since they are lawful immigrants. There is, however, no currently proposed legislation to help this population.
Argument preview: The constitutionality of mandatory and lengthy immigrant detention without a bond hearing
Here is my preview of the oral argument on October 3 in the Supreme Court in Jennings v. Rodriguez, which involves a challenge to immigrant detention under the Immigration and Nationality Act. My conclusion:
"Whatever the outcome, a decision in the case will have an immediate and significant impact. In a January 2017 executive order, which included numerous immigration-enforcement initiatives, President Donald Trump announced an end to the “catch and release” of immigrants facing removal from the United States. Detention without bond became official immigration-enforcement policy. The court’s decision in Jennings v. Rodriguez is therefore likely to bear on the administration’s ability to implement its immigrant-detention program."
ABC News reports that a vast 86 percent of Americans support a right to residency for undocumented immigrants who arrived in the United States as children, with support crossing the political spectrum. Two-thirds back a deal to enact such legislation in tandem with higher funding for border control.
Possibly in light of President Donald Trump’s decision to phase out the Deferred Action for Childhood Arrivals program, disapproval of his handling of immigration overall reaches 62 percent in this ABC News/Washington Post poll. Just 35 percent approve.
Additional hurdles for Trump are his demand for a wall on the U.S. border with Mexico -- again 62 percent oppose it -- and substantial concerns about his immigration enforcement policies.
Americans were asked whether they support “a program that allows undocumented immigrants to stay in the United States if they arrived here as a child, completed high school or military service and have not been convicted of a serious crime,” all elements of DACA, established by Barack Obama by executive order in 2012. Support spans demographic groups, including three-quarters of Republicans and conservatives, 86 and 87 percent of independents and moderates, and 97 and 96 percent of Democrats and liberals.
Support reaches 94 percent among Hispanics, 93 percent among blacks and 84 percent among whites. Strong support, 87 percent among Hispanics and 85 percent among blacks, declines among whites to 61 percent.
Trump early this month said he would rescind DACA, giving Congress a six-month window to act before nearly 800,000 undocumented immigrants lose protection from deportation. He later reached a tentative agreement with top congressional Democrats for DACA legislation accompanied by upgraded border security.
As noted, 65 percent support that potential compromise -- a bipartisan result, with 76 percent support among Republicans, 66 percent among independents and 59 percent among Democrats. Similarly, 71 percent of moderates, 66 percent of conservatives and 56 percent of liberals back the deal. Just 27 percent of Americans in this poll, produced for ABC News by Langer Research Associates, are opposed.
Just 30 percent of Americans say Trump has immigration enforcement “about right,” compared with the 44 percent who say this was so before he took office. Nearly half (45 percent) say immigration enforcement under Trump is “too tough,” much higher than the 6 percent who say this was the case before he took office. That said, 49 percent say enforcement was “not tough enough” before Trump took office; just 22 percent say so now.
Matching the number who disapprove of Trump’s handling of immigration overall, 62 percent oppose his promise to build a wall along the Mexican border; this has held steady since Trump first proposed it. Fifty-five percent also oppose cutting legal immigration by half, another proposal backed by Trump. In contrast, 79 percent support requiring employers to verify that new hires are here legally – a current requirement, with stricter enforcement on the table.
In a general measure of suspicion, just 12 percent of Americans think undocumented immigrants commit more violent crimes than other people in the country. The vast majority instead say they commit violent crimes at either an equal or lesser rate than U.S. citizens (64 percent and 19 percent, respectively). Approval of Trump’s handling of immigration is stronger among those who think undocumented immigrants commit more violent crimes than U.S. citizens (78 percent); it drops to 33 percent among those who think crime rates are the same, and 12 percent among those who think they’re lower among undocumented immigrants.
Views on Trump’s handling of immigration are highly partisan. Three-quarters of Republicans and 61 percent of conservatives approve, vs. a third of independents and moderates, 10 percent of Democrats and 8 percent of liberals.
Differences also emerge by demographic groups. Forty-three percent of men approve, vs. 28 percent of women. Americans over age 40 are more apt than younger adults to approve, 42 vs. 24 percent among those younger than 40. And while 46 percent of whites approve, this drops to 13 percent among both blacks and Hispanics alike.
This ABC News/Washington Post poll was conducted by landline and cellular telephone Sept. 18-21, 2017, in English and Spanish, among a random national sample of 1,002 adults. Results have a margin of sampling error of 3.5 points, including the design effect. Partisan divisions are 31-23-36 percent, Democrats-Republicans-independents.
The survey was produced for ABC News by Langer Research Associates of New York, N.Y., with sampling, data collection and tabulation by Abt Associates of Cambridge, Massachusetts. See details on the survey’s methodology here.
As Kit Johnson blogged about yesterday, Alternative for Germany (Alternative für Deutschland, AfD) had a big election win in the German elections. Voicing nationalist anti-immigrant, anti-refugee, anti-Euro views, AfD has become the German parliament's third most powerful political party.
The videos above offer a flavor of the AfD party. As Fox News put it, "Like Trump, Germany's anti-immigrant party shows unexpected strength."
The Guardian has what I think to be a balanced view of the German election results and the implications of the AfD's breakthrough election.
Immigration Article of the Day: Making Immigrants into Criminals: Legal Processes of Criminalization in the Post-IIRIRA Era by by Leisy Abrego, Mat Coleman, Daniel E. Martínez, Cecilia Menjívar, Jeremy Slack
Making Immigrants into Criminals: Legal Processes of Criminalization in the Post-IIRIRA Era by By Leisy Abrego (University of California, Los Angeles), Mat Coleman (The Ohio State University), Daniel E. Martínez (University of Arizona), Cecilia Menjívar (University of Kansas), Jeremy Slack (The University of Texas, El Paso)
Criminalizing immigrants has underpinned US immigration policy over the last several decades. This paper examines the processes of immigrant criminalization in three contexts: 1) the legal history that has produced the current situation, 2) enforcement programs and practices at the border and interior, and 3) the consequences for immigrants and their families living in the United States. In examining such processes, this paper extends the discussion of the criminalization of immigrants beyond the existing literature, on two basic counts. First, it focuses on legislative changes that paved the way for the passage of the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA) in 1996, which was a crucial year for the criminalization of immigration. Second, this paper documents how the criminalization of immigrants turns people and indeed whole communities, into law enforcement objects through specific programs and practices, and how immigrants experience this in their family, school, and work lives.
Monday, September 25, 2017
This weekend, the Clinical Law Review -- a peer-edited journal devoted to issues of lawyering and clinical legal education -- held its annual Writers' Workshop at NYU School of Law. The purpose of the Writers' Workshop is to provide an opportunity for clinical teachers who are writing in any subject to meet with other clinical law teachers to discuss their works-in-progress and receive constructive feedback on how to further develop their articles. Attendees meet in small groups organized by subject matter, which are generally facilitated by one or two past or present members of the Board of Editors for the Clinical Law Review. NYU Law School also provides scholarships to a number of participants, designed to allow clinical faculty who receive little or no travel support from their law schools to participate in the Workshop.
This year (like prior years) included a strong showing of immigration scholars. Richard Boswell and I co-facilitated an immigration group consisting of drafts written by David Baluarte, Caitlin Barry, Jason Cade, Carrie Rosenbaum, and Phil Torrey (all pictured above). Muneer Ahmad and Sameer Ashar facilitated groups on immigration and clinic design/experiential education, respectively, and other participants of the Workshop included Sarah Sherman-Stokes, Debbie Gonzalez, Bernie Perlmutter, Pooja Dadhania, and Christine Cimini.
I highly recommend this Workshop for clinical law teachers (including fellows and non-tenure track clinicians) looking to receive scholarship feedback in a supportive environment. The Workshops typically take place in late September at NYU.
"Because of the new ban’s terms, the Supreme Court will most likely find that the pending challenges to the revised [Executive Order (EO)] are moot. The Court has just canceled its scheduled October 10 argument on EO 13780 pending briefing on the new ban’s relevance to the case. Challenges to the new ban should emerge almost immediately. If the experience with the prior EOs is illustrative, the administration may find itself back before the Supreme Court in the spring of 2018. At that time, perhaps the Court will weigh in on the merits and protect the INA’s structure from further incursions."
This upcoming training in Los Angeles -- the first of its kind that I've seen -- may be of interest to blog readers:
STATE PARDONS: APPLICATION PROCESS AND USE IN THE IMMIGRATION CONTEXT
Please join us to address the process and criteria for applying for California state pardons and their effect on removal and naturalization eligibility.
Sponsored by: Immigration Committee of the National Lawyers Guild-LA Chapter; ACLU of Southern California, UCLA Law School Criminal Defense Clinic
When: Tuesday, October 3, 2017
5:30 pm – 7:30 pm
(registration & light dinner begin at 5:00 pm)
Where: MALDEF Building - downtown Los Angeles
634 South Spring Street, Los Angeles, CA 90014
CLE CREDITS: 2.0 COST: $60 general public; $35 NLG/NIP members and non-profit staff
Speakers: Ingrid Eagly, UCLA Law School Criminal Defense Clinic; Jennie Pasquarella, ACLU of Southern California; Tony Pullara, Law Office of Tony Pullara
Moderator: Stacy Tolchin, Law Offices of Stacy Tolchin
For more info contact Vera Weisz, vera[at]wilawgroup[dot]com.
Penn State Law’s Center for Immigrants’ Rights has updated its resource page to include items related to last night’s Proclamation (Muslim Ban 3.0).
Below is a list of new resources and here is the link.
Resources on Trump Executive Orders & Proclamations
Presidential Proclamation on Enhancing Vetting Capabilities & Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats (Muslim Ban 3.0), September 24, 2017.
On September 24, the President issued a Proclamation that indefinitely blocks the entry for certain individuals from eight countries: Iran, Iraq, Libya, Chad, North Korea, Syria, Somalia, Sudan and Yemen (Sudan has been dropped).
- Muslim Ban 3.0 Fact Sheet, Penn State Law Center for Immigrants' Rights Clinic, Muslim Advocates, and American-Arab Anti-Discrimination Committee, September 25, 2017.
- President Donald J. Trump Strengthens Security Standards for Traveling to America, The White House Office of the Press Secretary, September 24, 2017.
- Press Release: Donald J. Trump Announces Enhanced National Security Measures, The White House Office of the Press Secretary, September 24, 2017.
- FAQ: Proclamation on Enhancing Vetting Capabilities & Processes for Detecting Attempted Entry Into the United State by Terrorists or Other Public-Safety Threats, The White House Office of the Press Secretary, September 24, 2017.
- Fact Sheet: Proclamation on Enhancing Vetting Capabilities & Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, The White House Office of the Press Secretary, September 24, 2017.
From the Bookshelves: Sponsored Migration: The State and Puerto Rican Postwar Migration to the United States by Edgardo Melendez
Sponsored Migration places Puerto Rico’s migration policy in its historical context, examining the central role the Puerto Rican government played in encouraging and organizing migration during the postwar period. Meléndez sheds an important new light on the many ways in which the government intervened in the movement of its people: attempting to provide labor to U.S. agriculture, incorporating migrants into places like New York City, seeking to expand the island’s air transportation infrastructure, and even promoting migration in the public school system. One of the first scholars to explore this topic in depth, Meléndez illuminates how migration influenced U.S. and Puerto Rican relations from 1898 onward.
AfD, Germany's "anti-immigrant, anti-euro" and "right-wing nationalist" party has vaulted its way into German parliament for the first time. Not only that, AfD has become the parliament's third most powerful political party after Angela Merkel's CDU (conservatives) and the SPD (social democrats).
Alexander Gauland, an AfD leader and now MP, told the press: "One million people, foreigners, being brought into this country are taking away a piece of this country and we as AfD don't want that... We say I don't want to lose Germany to an invasion of foreigners from a different culture. Very simple." He said that AfD's victory was a mandate to "uncompromisingly address" migration.
Merkel was reelected to serve a fourth term as Germany's chancellor, but her election this time around is very different in light of AfD's victory. She has acknowledged the "concerns, worries and anxieties" of AfD voters. Time will tell how and whether she'll address them and what that might mean for Germany's immigration policy.