Tuesday, February 10, 2015

European Commission: Smuggling of Migrants in Europe and the EU response

This Fact Sheet provides some very interesting pieces of information about migration in the EU.

What is smuggling of migrants?

To enter the EU, irregular migrants often turn to smugglers. Smuggling of migrants is commonly understood as the intentional organisation or facilitation of the irregular movement of persons across state borders, which is provided in return for financial gain (or other gain) by the migrants to the smugglers.  Smuggling of migrants generally takes place with the consent of the person willing to move. However, the act of smuggling itself is often dangerous and violent, forcing people to unsafe and inhumane travelling conditions.

This is nevertheless distinct from trafficking in human beings, which does not require crossing of international borders, involves physical or psychological violence, coercion, exploitation of position of vulnerability, and is aimed at the exploitation of the victim. The distinction between these two types of crimes can however become blurred in practice because smuggled people can also become victims of violence or some form of exploitation.

Who are the people arriving to Europe?

In 2014, more than 276 000 migrants irregularly entered the EU, which represents an increase of 155% compared to 2013.

Syrians together with Eritreans were the largest group of person apprehended at EU external borders trying to enter the EU in an irregular manner. Other large groups included nationals from Afghanistan, Mali and Kosovo.

KJ

February 10, 2015 in Current Affairs | Permalink | Comments (0)

Paddington: The Unaccompanied Minor


Photo via Fandango

We've written about Paddington before, noting that he's a "model immigrant" who humanizes the migrant experience.

I took my boys to see Paddington this weekend, and I can report that Paddington is something more. He is a child. And he doesn't travel to London because he wants to. He travels to London because he has to. In short, Paddington is an unaccompanied minor.

SPOILER ALERT - the next two paragraphs contains plot points from the first part of the movie.

Paddington is an orphan. The uncle who cared for him is dead, and his last remaining relative, an aunt, is too old to care for him anymore.

But it's the parting words of his aunt, sending him onwards to London because she can't think of how else to provide for him, that really hit home the UMC angle of this movie:

Long ago, people in England sent their children by train with labels around their necks, so they could be taken care of by complete strangers in the country side where it was safe. They will not have forgotten how to treat strangers.

It's that last bit that really gets me: They will not have forgotten how to treat strangers. I think, unfortunately, we have.

-KitJ

February 10, 2015 in Current Affairs, Film & Television | Permalink | Comments (0)

Grammys Lifetime Achievement Award to Flaco Jímenez

  

The Grammys have been covered here on ImmigrationProf. Kanye West made international  news with a much-publicized attack on Beck or publicity stunt, depending on how one looks at it.

One musician award winner should not get lost in the shuffle.  The Recording Academy also honored recipients of the 2015 Lifetime Achievement Award, including Flaco Jiménez.  Jiménez is a Conjunto, Norteño and Tejano music accordionist from San Antonio, Texas.

Jiménez began performing, at the age of seven, with his father, Santiago Jiménez Sr, who was a pioneer of conjunto music and began recording at age fifteen as a member of Los Caporales. He played in the San Antonio area for several years, and then began working with Douglas Sahm in the 1960s. Sahm, better known as the founding member of the Sir Douglas Quintet, played with Jiménez for some time.

Flaco then went on to New York City and worked with Dr. John, David Lindley, Peter Rowan, Ry Cooder and Bob Dylan. He appeared on Cooder's world music album Chicken Skin Music and on the Rolling Stones' Voodoo Lounge. This led to greater awareness of his music outside America and, after touring Europe with Ry Cooder, he returned to tour in America with his own band, and on a joint bill with Peter Rowan.Jiménez, Peter Rowan and Wally Drogos were the original members of a band called The Free Mexican Airforce.

Jiménez won a Grammy Award in 1986 for Ay Te Dejo en San Antonio, one of his father's songs. He was also a member of the Tejano fusion group Texas Tornados, with Augie Meyers, Doug Sahm and Freddy Fender. The Texas Tornados won a Grammy Award in 1990, and Jiménez earned one on his own in 1996, when his self-titled album Flaco Jiménez won the Grammy Award for Best Mexican-American Performance. In 1999, Flaco earned another Grammy Award for Best Tejano Performance for Said and Done and one for Best Mexican-American Performance as a part of supergroup Los Super Seven.

Jiménez has also won a Best Video award at the Tejano Music Awards and earned a Lifetime Achievement Award from Billboard Latin Magazine for "Streets of Bakersfield" with Dwight Yoakam and Buck Owens.

KJ

February 10, 2015 in Current Affairs, Film & Television, Music | Permalink | Comments (0)

No comprehensive immigration reform until 2017?

MacArthur Foundation awards $1 million to Berkeley Law Human Rights Center

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The MacArthur Foundation has recognized the Human Rights Center at Berkeley Law for its investigations and research on war crimes and human rights abuses with a 2015 MacArthur Award for Creative and Effective Institutions.

The UC Berkeley Human Rights Center is one of nine nonprofit organizations worldwide receiving the award, announced on February 5. The award comes with $1 million, which the center will use to establish an endowment and to expand its sexual violence program. The MacArthur Foundation, known for its “genius awards” to exceptional individuals, also honors extraordinary organizations that tackle some of the world’s most challenging problems.

In honoring the Human Rights Center, the foundation cited decades of work on war crimes and abuses in more than a dozen countries, spotlighting recent research on wartime sexual violence.

 

Researchers at the UC Berkeley Human Rights Center discuss their efforts to investigate war crimes and other serious violations of human rights. (Video courtesy of the John D. and Catherine T. MacArthur Foundation.)

For more details, click here.

KJ

February 10, 2015 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Regulating Crimmigration by Evan Tsen Lee

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Regulating Crimmigration by Evan Tsen Lee, University of California Hastings College of the Law February 2, 2015 UC Hastings Research Paper No. 128

Abstract: In the last decade, federal prison populations and deportations have both soared to record numbers. The principal cause of these sharp increases has been the leveraging of prior criminal convictions – mostly state convictions – into federal sentencing enhancements and deportations. These increases are controversial on political and policy grounds. Indeed, the political controversy has overshadowed the fact that the Nation’s Article III and immigration courts have struggled with an exquisitely difficult set of technical problems in determining which state criminal convictions should qualify for federal sentencing enhancements and/or deportation. The crux of the problem is that the underlying crime can be viewed in a fact-sensitive manner – which usually benefits the government – or in an abstract, “categorical” manner – which usually benefits the individual. In two recent decisions, Descamps v. United States and Moncrieffe v. Holder, the U.S. Supreme Court has squarely sided with a categorical approach. Yet the implementation of a categorical approach faces three huge challenges: first, it cuts against the widely shared intuition that just punishment should turn on the facts of the case in question; second, it presupposes that federal courts will always be able to ascertain the essential elements of state offenses; and third, a categorical approach resists application to a significant number of existing federal statutes. This Article sketches out a coherent framework for administering a categorical approach across both federal sentencing and immigration, in the process reconciling seemingly inconsistent Supreme Court decisions and suggesting how several circuit splits should be resolved.

KJ

February 10, 2015 in Current Affairs | Permalink | Comments (0)

Monday, February 9, 2015

Obama's Exeutive Actions Subject of Powerhouse Panel Discussion at ABA Mid-Year Meeting in Houston

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Michael Olivas, Leticia Saucedo (middle), and Tom Saenz

Photo Courtesy of ABA Journal

As readers of this blog know, there were quite a few immigration law events this weekend.

Professor Leticia Saucedo filled us in on the panel discussion at the ABA Mid-Year meeting in Houston Texas:

The ABA Commission on Hispanic Legal Rights and Responsibilities (ABA Hispanic Commission), in collaboration with the ABA Commission on Immigration, hosted a panel discussion on The Pros and Cons of the Exercise of Executive Action in Immigration Law at the American Bar Association’s Midyear Meeting on Saturday, February 7, 2015 in Houston, Texas. The panelists explored President Obama’s recent executive action decision to provide temporary legal status to certain undocumented immigrants. Panelists discussed the impact of this decision and how the pending lawsuits against the President will impact its implementation. Panelists included Thomas A. Saenz, President and General Counsel of the Mexican American Legal Defense & Educational Fund, Prof. Michael Olivas, the University of Houston Law Center, and Leticia Saucedo, UC Davis School of Law.

KJ

February 9, 2015 in Current Affairs | Permalink | Comments (0)

Pew Call for Proposals: fiscal and economic impacts of immigration on states and localities

The Pew Charitable TrustsImmigration and the States project has issued a Request for Proposals to engage in research in three areas: 1) the impact of federal immigration laws and policies on states and/or localities; 2) the impact of immigrants admitted by the federal government in the states and/or localities where they settle; and 3) the impact of immigration-related state and/or local laws and policies on states and/or localities.

 

The Immigration and the States project examines the intersection of federal, state, and local immigration laws and policies and their potential impact on all levels of government. Proposals will be accepted to immigration@pewtrusts.org through 5:00 pm EDT on Friday, March 20, 2015. Contracts will be awarded for those proposals Pew chooses to fund. Please see below for the anticipated timeline for proposal review, award, and completion. Individuals and research teams from academic institutions, for-profit organizations, nonprofit organizations, and those without affiliations are eligible to apply.

 

Please see the attached document for more information:

  • Request for Proposals
  • Appendix A: Conditions of Agreement
  • Appendix B: Budget Template

 

KEY DATES

Issuance of Request For Proposals (RFP)

February 9, 2015

Deadline for Questions

February 23, 2015

Answers/ Addenda from Pew

March 2, 2015

Proposal Submission Deadline

March 20, 2015

Anticipated Notification Date

April 13, 2015

Contract Award*

April – June, 2015

Final Deliverable Due Unless Otherwise Determined by Pew*

March 2016

*For projects Pew selects at the proposal stage.

 KJ

February 9, 2015 in Current Affairs | Permalink | Comments (0)

LA Dodgers Pitcher Detained at Airport

From CBS:

The immigration nightmare that Los Angeles Dodgers right-hander Joel Peralta recently endured is a strong example of why major league ballplayers always should carry their own baseball cards for identification.

Peralta and his wife were stopped at the Miami International Airport for six hours this past Friday night because the ICE official handling their entry from the Dominican Republic into the United States found Peralta's visa to be insufficient for "signing autographs" at the Dodgers fan fest. For activities like that, Peralta needed a work visa, instead of the 10-year visitor's visa he carried. If it sounds like a distinction without a difference, you're not alone, but when the season comes around, players residing in the Dominican Republic and elsewhere do need work visas. But this is a fan fest. Read more....

bh

February 9, 2015 | Permalink | Comments (2)

Europe or Die

OECD International migration policies and data

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The OECD manages several databases dedicated to international migration that might be of interest to ImmigrationProf readers: 

OECD International Migration database Provides tables with recent annual series on migration flows and stocks in OECD countries 

Database on Immigrants in OECD countries (DIOC)

Provides comprehensive and comparative information on a broad range of demographic and labour market characteristics of immigrants living in OECD countries
Database on Immigrants in OECD and non OECD countries (DIOC-E)

An extention of DIOC to a number of non-OECD countries for the year 2000

 

February 9, 2015 in Current Affairs | Permalink | Comments (0)

Senator Sessions: Immigration Handbook for the New Republican Majority

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The new chairman of the Senate Immigration Subcommittee, Jeff Sessions (R-AL), wasted no time in advertising his antipathy towards immigrants. Shortly after assuming his post, Sessions released an “Immigration Handbook for the New Republican Majority.”   

The handbook, which consistently claims that immigrants hurt citizen workers and the middle class,  includes sections entitled

Executive Amnesty

Enforcement Collapse

Immigration and the Economy

Immigration and the Welfare State

Immigration Polling and Messaging

The Silicon Valley STEM Hoax

The handbook concludes as follows:

"The immigration debate can be reduced to three essential questions:

Is America a sovereign nation that has the right to control its borders and decide who comes to live and work here?

Should American immigration laws serve the just interests of the country and its citizens?

And do those citizens have the right to expect and demand that the laws passed by their elected representatives be enforced?

If we believe the answers to these questions are "yes," then we have no choice but to fight—and to win."

Immigration Impact notes that, "in only 23 pages, managed to distill just about every fact-free sound bite ever conceived by the nativist imagination. From Tea Party mythology about President Obama’s executive action on immigration to old fables about immigrants on `welfare,' the Sessions document runs the gamut of anti-immigrant errors, distortions, and fabrications."  However one looks at the Sessions handbook, it does not bode well for the passage of comprehensive immigration reform in the near future.

Why were we elected, if not to serve the people who sent us here?"

KJ

February 9, 2015 in Current Affairs | Permalink | Comments (0)

Grammy Wrapup - the Immprof Version

Last night's big winner at the Grammy's was Sam Smith. The British singer took home the honors for best new artist, song of the year, and record of the year for his hit “Stay With Me.”

 

The night also featured a performance by Australian singer Sia, with her hit Chandelier.

 

Brittish singer Ed Sheeran performed his beautiful ballad Thinking Out Loud.

 

And Irish singer Hozier teamed with Scottish songstress Annie Lennox, bringing down the house with their version of Hozier's Take Me To Church.

 

In short, the 2015 Grammys were brought to you by the letters P and O.

-KitJ

February 9, 2015 in Current Affairs | Permalink | Comments (0)

White House: Need Develepment in Central America to Reduce Migration

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Photo courtesy of Wikipedia

Immigration Impact reports that President Obama requested $1 billion in his fiscal year 2016 budget proposal to address the root causes of unaccompanied children fleeing to the United States. Vice President Joe Biden announced the plan for these funds in a New York Times op-ed, saying that “[a]s we were reminded last summer when thousands of unaccompanied children showed up on our southwestern border, the security and prosperity of Central America are inextricably linked with our own.” He listed some of the challenges that El Salvador, Guatemala, and Honduras face, including “inadequate education, institutional corruption, rampant crime and a lack of investment.” -

February 9, 2015 in Current Affairs | Permalink | Comments (0)

Timothy Dugdale: Why the Supreme Court Should Revisit the Doctrine of Consular Nonreviewability

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Two weeks from today, the Supreme Court will be hearing oral argument in Kerry v. Din, a case involving application of the doctrine of consular nonreviewability.  ImmigrationProf has posted a number of items about the case.  See here, here, here, here.   Timothy Dugdale in this exclusive guest post considers the issues raised by the case:

Shortly after the fall of the Berlin Wall, books began appearing with titles like, "The Short Century 1914-1989" and "The End of History." After 9/11, it became clear that it would be wise to mothball the kind of dreaming larded through "The End of History" and instead crack the spine of Benjamin Barber's very prescient and gimlet-eyed work, "Jihad vs. McWorld."

In two weeks, the Supreme Court is going to hear oral arguments in Kerry v. Din. It is a case that strikes at the heart of America's millennial heartbreak. America was a country that thought it had won the gold medal as history crossed a profound finish line in 1989, only to know by noon on September 11, 2001, the medal was made of tin. The technocratic neo-liberalism of McWorld may have vanquished the commies but other discontents were ready with projects of mayhem and menace.  America would have to go out into the world - specifically Afghanistan and Iraq - and root out the irritants. And keep the irritants from infiltrating America.

In 2006, Ms. Din, a naturalized American, filed a petition for her betrothed who lived in Kabul. USCIS approved the petition and Din went with her gent to the US Embassy in Islamabad, Pakistan to secure the visa. During the interview, the husband discussed how he had been a low-level functionary in the Taliban government. In 2009, a consular official at the embassy denied the visa petition, citing 8 USC 1182(a)(3)(B) for terrorist activities. Din was having none of it. She filed in federal district court asserting three claims: a claim for a writ of mandamus directing government officials “to adjudicate properly [the] visa application not on the basis of any bad faith or illegitimate reasons”; a claim for a declaratory judgment that 8 U.S.C. 1182(b) is unconstitutional vis-à-vis a U.S. citizen as a violation of procedural due process; and a claim that petitioners had violated the Administrative Procedure Act by arbitrarily misconstruing and misapplying 8 U.S.C. 1182(a)(3)(B).

Eventually the case reached the Ninth Circuit, a circuit that has repeatedly championed the INA as an ur-text of family unity. The judges ruled in favor of Din saying she had a protected liberty interest in her marriage. The consular official was obligated, even though the denial may have been based on one of the security-based exemptions located in a subset of the statute, to tell her why the husband was deemed inadmissible and denied a visa. The judges played it cagey and focused on did the consular official read the statute properly rather than getting to the root of the inadmissibility.

Amongst the amici briefs filed in this case is a very interesting one from a group of retired consular officers. [For discussion and analysis of the brief, see Professor Amanda Frost's post here.].  They freely admit that consular officers make mistakes all the time. Why? Because the officers either don't have access to reliable information about a petitioner or they receive erroneous information about the petitioner through a vast network of interconnected databases, many of them put in place during the War on Terror and have questionable maintenance.

The government has already lost big in Ibrahim v. DNS (ND California 2014), a case concerning a Muslim university student who erroneously ended up on a terrorist watch list because a US  immigration functionary filled out the wrong form. She flew home to attend a conference in Malaysia and was not allowed to return to the United States to complete her doctorate at Stanford. How many other thousands of bogus no-fly and watch list listings are out there? Latif v. Holder (D Oregon 2014) is pretty damning.

It's not just consular decisions that need working on. One of the key expedited removal cases, Li v. Eddy (Ninth Circuit 2001, 2003), involved a Chinese businesswoman arriving in the US with a valid L-1 visa. The local INS charged her with fraud, based on a previous denial that loomed in their database. 1252(e)(5) prevented the Ninth from even considering if she was admissible. Lack of reliable data netted this poor woman a five year ban from the United States, a ban that is really a permanent ban under INA 212(a)(6)© (i).

The Supreme Court should treat Kerry v. Din not as an individual case of a US citizen securing a visa for her alien spouse but rather as a historic reassessment of judicial review of consular decisions. Has America's war on terror created an inadvertent war on free trade, including the free movement of valuable human capital? If the country wants to attract and keep the best and brightest of the world, it has to make sure those people can get into the country, stay in the country and keep coming back to the country that will be their home.

In its Din brief, the government relies on its usual Cold War warhorses of plenary power, Knauff, Mezei and Mandel, to argue that Congress has final say in who can come into the United States. Din could enjoy marital bliss with her alien hubby anywhere but the United States because Congress determines who is an alien and aliens have no due process rights. In light of Kennedy's reasoning in Boumediene and his concurrence in Verdugo, this kind of old school natavism is unacceptable. Family based immigration is one thing; business is another. America now has many trading partners whose citizens enter the US on treaty trader visas and establish meaningful connections to the US. They may be aliens but they are resident aliens. They should not have to leave the US to renew their trading visas. If they must, they should have the safeguard of judicial review of consular decisions, just as they should have the safeguard of full review of border agent decisions. Overhaul of consular reviewability and the expedited removal system should go hand-in-hand.

-- 
Timothy Dugdale, Ph.D.
Founder
Atomic Quill Media

February 9, 2015 in Current Affairs | Permalink | Comments (0)

Sunday, February 8, 2015

The Conclusion of the Michigan Journal of Law Reform Immigration Reform at 50 Conference

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My apologies for getting behind in my blogging from the Michigan Journal of Law Reform  Immigration Reform at 50 Conference but I had to make a mad dash to catch a flight in hopes of avoiding the snow forecast in Detroit for today.

The last two panels focused on incredibly timely and compelling issues.

Panel 3 looked at "States, Localities, and Immigration (Non)enforcement."  Over the last few years, many state and local governments have gotten involved in the immigration enforcement business, often only to have the efforts slapped down by the courts (including the Supreme Court in Arizona v. United States).  At the same time, some state and local governments -- with the California TRUST Act one important example -- have resisted efforts like Secure Communities; such resistance contributed to the abrogation of that program.  Some states have also extended driver's license eligibility, as well as in-state fee eligibility at public universities, to undocumented immigrants.  This distinguished panel offered many insights about what was happening at the state and local level with respect to immigration.

Rick Su, SUNY Buffalo

Hiroshi Motomura, UCLA Law

Margaret Hu, Washington & Lee

John Sandweg, Frontier Solutions and former Acting Director of Immigration and Customs Enforcement

Moderator: Nicholas Bagley, Michigan

 

Panel 4 was entitled "Immigration’s Humanitarian Crises and Responses."  In the summer of 2014, the reported "surge" of unaccompanied minors from Central America grabbed the headlines.  The latest wave of migrants seeking refuge in the United States -- past waves in the modern era included Central Americans fleeing civil war in the 1970s and 1980s and Haitians fleeing political violence and economic devastation in the 1980s and 1990s -- again raised issues of what the U.S. government's response should be.  This panel of distinguished scholars and activists offered thoughtful responses to America's responses to humanitarian crises.

Deborah Anker, Harvard

Sabi Ardalan, Harvard

Fernando Chang-Muy, Penn

Melissa Crow, American Immigration Council

Howard Chang, Penn

Lee Gelernt, American Civil Liberties Union

Moderator: Kristina Daugirdas, Michigan

 

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Closing Remarks by Stephen Legomsky, Washington University Law School.  It is always great hearing the last word from Professor Legomsky, in large part because he is one of the most accomplished immigration scholars on the planet but also because he is one of the funniest people in the law professor business.

KJ

February 8, 2015 in Current Affairs | Permalink | Comments (0)

Unaccompanied Immigrant Children and the “Priority Docket”: New York’s Experience

 

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Unaccompanied Immigrant Children and the “Priority Docket”: New York’s Experience (February 10 @ 6:30 pm - 8:00 pm) is a program that should be of interest to our New York City area readers.

On August 13, 2014, the Immigration Court in New York began to prioritize deportation proceedings for recently arrived unaccompanied immigrant children. This free program will discuss legal, policy, personal and practical issues relating to unaccompanied children in immigration proceedings, and in particular New York’s experience with the priority docket.

Date: RESCHEDULED FOR FEBRUARY 10, 2015 DUE TO SNOW

Time: Reception at 6 pm; program from 6:30 pm – 8:00 pm Location: New York Law School, Auditorium (A014), 185 West Broadway, New York, NY, 10013

CLE: 1.5 Continuing Legal Education credits will be offered through this program (transitional and non-transitional)

Panelists: Jojo Annobil, Attorney-in-Charge, Immigration Law Unit, Legal Aid Society

Annie Chen, Associate Program Director, Center on Immigration and Justice, Vera Institute of Justice

Desireé C. Hernández, Staff Attorney, Safe Passage Project

Virna Wright, U.S. Immigration Judge

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Moderator: Lenni Benson, Professor of Law, New York Law School; Director, Safe Passage Project

KJ

February 8, 2015 in Current Affairs | Permalink | Comments (0)

Immigration Document Services from H&R Block

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The United States is slowly but surely headed toward tax season.  Venturing into a new and somewhat related market (in the sense that it involves filing incredibly complex forms with tons of personal information with the federal government), H&R Block, a large tax preparation service company, is now providing "immigrant document services."

According to an article on its website, H&R Block has a "new office concept which offers many services in the heart of Houston, Texas. It’s called Taxes and Multiservicios. This is a pilot program that began last January, and it aims to meet the demand for certain services of interest to the Latino community, beyond just filing taxes. José Leal, Regional Director in Houston Metro Area, Texas, explained that Taxes and Multiservicios is an innovative concept where you can not only file your taxes, including the ITIN service, but you can also complete your immigration forms, and very soon, you could also transfer money abroad." 

What do our readers thing of this new concept?  H&R Block arguably is providing a much-needed service to many members of our community. 

KJ

February 8, 2015 in Current Affairs | Permalink | Comments (0)

Amanda Frost on the Former Consular Officers Brief in Favor of Judicial Review in Kerry v. Din

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Although law professors often submit amicus briefs in Supreme Court cases in the hope that their scholarship will influence legal doctrine, their arguments often fall on deaf ears. But an amicus brief co-authored by Professor Jeffrey Kahn challenging the doctrine of consular non-reviewability should capture the Court’s attention, in part because Kahn is representing former consular officials who argue in favor of judicial review of their decisions.

Kerry v. Din addresses the doctrine of consular non-reviewability, under which courts are barred from reviewing a consular officer's decision to deny a visa application. In this case, the Ninth Circuit found an exception to that doctrine, reasoning that because the consular officer’s denial of a visa to the husband of a U.S. citizen impinged on the wife’s constitutional rights she had a right to judicial review of that decision, which in turn required the consular officer to give reasons for the denial.  Kahn has co-authored an amicus brief supporting Din, and the brief repeatedly cites Kahn’s academic writing to support the point that consular officers’ decisions should be subject to judicial review in some cases. Unusually, however, it is not submitted on behalf of Khan or other scholars.  Rather, Kahn is representing six former consular officers. Because these amici are in a unique position to understand the role of consular officials in processing visa applications, their involvement gives Kahn’s scholarly arguments greater credibility than they would have had on their own.

The amicus brief contends that not all visa application denials are based on an exercise of consular discretion, as the government’s brief suggested. Rather, these former consular officers explain that they were often forced to deny visas to applicants based on the applicants' inclusion in databases and on watchlists maintained by the Department of Homeland Security, the FBI, and other federal agencies. The consular officers were not told why the applicants’ names appeared in these databases, and they had no right to question their inclusion.  Here, the visa application for Din's husband appeared to have been denied because his name showed up on one of these databases, and not because the consular official processing his application had any reservations about his eligibility for the visa. The brief explains that “[s]hielding the denial of his visa from judicial review [would] erroneously cloak database and watchlist entries in the garb of consular discretion.”

The brief contends that judicial review is a necessary “safety valve” for visa denials that rest on databases and watchlists, which are not always reliable. Kahn has written a book in which he critiqued the government’s use of these databases, in part because of the low standards and minimal oversight that can lead to errors.  (My colleague at American University, Jennifer Daskal, has made similar arguments with respect to the no-fly list in a Cornell Law Review article).  Khan also served as an expert witness in a case in which a federal district court found that a Malaysian student studying in the United States was erroneously placed on the no-fly list, barring her from travel and leading the government to revoke her F-1 student visa, all because an FBI agent mistakenly filled out the wrong form.  That case is cited prominently in the amicus brief as an example of why judicial review of consular visa denials is needed in such cases.  It will be interesting to see whether the Justices take up this issue at oral argument.

 Amanda Frost is Professor of Law at American University Washington College of the Law.

February 8, 2015 in Current Affairs | Permalink | Comments (0)

Saturday, February 7, 2015

Live From Denver: Individual Rights in Immigration Proceedings


LtoR: Tsankov, Krishnaswami, Graybill, Markowitz

The final panel of the the DU crimmigration conference focused on individual rights in immigration proceedings - focusing largely on legal representation. It was a wonderfully diverse panel including an immigration judge (Mimi Tsankov, in her personal capacity), immprofs (Lisa Graybill - DU and Peter Markowitz - Cardozo), as well as attorneys from the Rocky Mountain Immigrant Advocacy Network (Charyanya Krishnaswami and Abbie Johnson).

IJ Tsankov spoke about legal counsel in immigration court proceedings and efforts by the Denver immigration court to address the needs of unrepresented individuals - such as self-help materials, legal orientation programs, and lists of legal services providers.

Krishnaswami and Graybill spoke about detention and representation in the Rocky Mountain region, focusing on the Aurora immigration detention facility run by GEO Group. They spoke about the effect of detention on adjudication, how representation impacts adjudication, barriers to representation, and how the legal needs of detainees are currently being address in region.

Markowitz further humanized the problem of representing detained individuals. He spoke of Sonia, a young Haitian woman detained and separated from her young children (2 and 5) for TWO YEARS despite the fact that she successfully fought pro se against detention early on (DHS appealed and she was detained during the appeal) and despite the fact the fact she was subject to discretionary detention in any event. (When she was released and reunited with her children they were 4 and 7). So, what's the solution to the "vast and profound" problem of unrepresented detainees? According to Markowitz, we need judicial recognition of the right to legal counsel at least for detained individuals.

Johnson spoke about the rights of children in immigration proceedings and how children are treated in immigration proceedings. Answer: they go through the same things adults do. They are detained. They appear in court without representation. They are deported.

-KitJ

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