ImmigrationProf Blog

Hospitals Deporting Comatose Patients

From David Pitt of the Associated Press:

Days after they were badly hurt in a car accident, Jacinto Cruz and Jose Rodriguez-Saldana lay unconscious in an Iowa hospital while the American health care system weighed what to do with the two immigrants from Mexico.

The men had health insurance from jobs at one of the nation’s largest pork producers. But neither had legal permission to live in the U.S., nor was it clear whether their insurance would pay for the long-term rehabilitation they needed.

So Iowa Methodist Medical Center in Des Moines took matters into its own hands: After consulting with the patients’ families, it quietly loaded the two comatose men onto a private jet that flew them back to Mexico, effectively deporting them without consulting any court or federal agency.

When the men awoke, they were more than 1,800 miles away in a hospital in Veracruz, on the Mexican Gulf Coast.

Hundreds of immigrants who are in the U.S. illegally have taken similar journeys through a little-known removal system run not by the federal government trying to enforce laws but by hospitals seeking to curb high costs. A recent report compiled by immigrant advocacy groups made a rare attempt to determine how many people are sent home, concluding that at least 600 immigrants were removed over a five-year period, though there were likely many more.

In interviews with immigrants, their families, attorneys and advocates, The Associated Press reviewed the obscure process known formally as “medical repatriation,” which allows hospitals to put patients on chartered international flights, often while they are still unconscious. Hospitals typically pay for the flights. Read more...

bh

At Odds with Modernity: Senate's Gang Affiliation Bar

Guest blogger: Curtis Boyd, third-year law student, University of San Francisco

At Odds with Modernity—The New Immigration Bill and the Proposed Gang “Affiliated” Bar to Registered Provisional Immigrant Status

While the Senate’s proposed immigration legislation—the “Border Security, Economic Opportunity, and Immigration Modernization Act”(S. 744)—may finally provide a means for undocumented individuals to apply for legal status, one of the bill’s bars to obtaining the new status will indubitably result in the unjustified exclusion of many predominantly Latino men who, although never convicted of any crime, are likely to be classified as “associated” with a criminal street gang.

Under Section 3701, subsection (c) of the bill, an individual is ineligible for the proposed “Registered Provisional Immigrant Status” if Homeland Security determines by clear and convincing evidence that the individual, “since the age of 18, knowingly and willingly participated in a such gang with knowledge that such participation promoted or furthered the illegal activity of such gang.” In other words, if the Government determines you to be associated with “gang members,” you can be barred from obtaining the new status, even though there are otherwise no other grounds for your exclusion.

Yet, the Government has a poor track record in identifying such “gang affiliates” without casting suspicion on an entire ethnicity of people—also known as racial profiling. The ACLU has filed numerous suits against law enforcement and other government agencies for “gang sweeps” that have overwhelmingly targeted Latinos and other minority groups through illegal detentions and accusations of gang-relation.This has lead to official classification of individuals as “gang members” based on irrelevant factors such as merely living in a particular neighborhood, growing up with certain individuals, or even having a graffiti-print backpack, rather than actual criminality.

While the premise of section 3701(c) seems to be to “pre-empt” the future occurrence of gang crimes by excluding individuals determined to be a part of a criminal gang, this cannot be achieved without inadvertently excluding those wrongly determined to be a part of such gangs. If the goal of the bill is to “Modernize” our immigration system, we should start by attacking underlying prejudices, misconceptions, and stereotypes that have, either implicitly or explicitly, defined immigration policy in this country since it’s founding. Providing the means to exclude those who would otherwise be eligible for the Registered Provisional status based solely on law enforcement’s estimation that an individual is affiliated with a street gang is misguided. The proposals will only continue to perpetuate the marginalization of undocumented Latinos, many of whom come from low-income neighborhoods who may not have a choice who their neighbors, colleagues, or classmates may be, yet may nevertheless be determined by passing law enforcement to be “guilty by association”.

In order to truly “Modernize” our immigration policy, undocumented individuals must be viewed as human beings and future Americans, rather than a outsiders we can group into unsavory categories without proof they have actually done wrong. Eliminating section 3701(c) would demonstrate that as an American, one is judged, and judges others, on the content of an individual’s character. In embodying this principle we would not only “modernize” our national immigration policy, but also humanize the individuals who have been willing to sacrifice so much for the opportunity to one day be called an American.

bh

Breaking News: Supreme Court Decides Moncrieffe v. Holder

Today, the Supreme Court issued its decision in Moncrieffe v. Holder. 

Here is the preview of the case.  In a nutshell:

At age 3, Adrian Moncrieffe in 1984 legally entered the United States from Jamaica with his family. He grew up and started his own family, including two children who are U.S. citizens, in the United States. Moncreiffe’s brief states that “he has almost no remaining ties to Jamaica.” In 2009, local police in Georgia pulled over Moncrieffe. Officers found 1.3 grams of marijuana in the car, roughly two-and-a-half marijuana cigarettes. (Although not an issue in the case, the facts of the police stop have the indicators of racial profiling.). The state charged Moncrieffe with possession of marijuana with intent to distribute under a broad Georgia statute that criminalizes the social sharing of small amounts of marijuana as well as the distribution of larger amounts. As a first time offender, Moncrieffe pleaded guilty and completed probation without incident. Two years after the plea bargain, U.S immigration officials detained Moncrieffe and sought to remove him from the United States, claiming that the Georgia conviction was an “aggravated felony.” Under the immigration laws, “illicit trafficking in a controlled substance,” a “felony punishable under the Controlled Substances Act,” is an “aggravated felony.” The Board of Immigration Appeals ordered Moncrieffe removed. The Fifth Circuit, in an opinion by Chief Judge Edith Jones, denied a petition for review. Following Fifth Circuit precedent, the court declined to follow the Second and Third Circuits that have held that convictions like Moncrieffe’s – in which there is no finding of drug quantity or remuneration – is not an “aggravated felony.”

What is perhaps most striking about the facts of the case is that a traffic stop and conviction for possessing less than two marijuana cigarettes put Moncrieffe’s entire life in the United States in jeopardy. What also is striking is that possession of such a small quantity of marijuana can lead to a conviction under a state law prohibiting the possession with intent to distribute.

The question before the Supreme Court was whether a conviction under a state law that includes but is not limited to possession of a small amount of marijuana without remuneration may constitute an aggravated felony, notwithstanding that the record of conviction does not definitively establish that the immigrant was convicted for conduct that would constitute a felony under federal law. The Court held that an "aggravated felony" does not include a conviction under "a state criminal statute that extends to the social sharing of a small amount of marajuana." 

Justoice Sotomayor, joined by Chief Justice Roberts and Justices Scalia, Kennedy, Ginsburg, Breyer, and Kagan wrote the majority opnion, which reversed and remanded the Fifth Circuit decision.  Justice Thomas and Justice Alito filed dissenting opinions.

Analysis of the decision to follow in the next week.

A group of Immigration Law Professors, led by Professor Alina Das, submitted an amicus brief (Download AMICUS) in the case, which is cited at p. 16 of the Moncrieffe opinion. NYU law students Pierce Suen ’13 and Jordan Wells ’13 worked on the brief.

KJ

From the Bookshelves: Illegal Migrations and the Huckleberry Finn by John S.W. Park

Illegal Migrations and the Huckleberry Finn by John S.W. Park

Abstract:  Throughout American history, citizens have encountered people who are "illegal"—that is, people who have no legal right to be in the United States or to freedom of movement because of their immigration status or race. Like Mark Twain's Huckleberry Finn, these citizens face the conflict between sympathy for the unlawful other and the force of the law. In Illegal Migrations and the Huckleberry Finn Problem, John Park explores problems of status and illegality in American law and society by examining on-going themes in American legal history, comparative ethnic studies, and American literature. He observes that in reconsidering racially discriminatory laws, Americans have celebrated persons who were "out of status," as well as the citizens who had helped them avoid American law. Similarly, in confronting illegal immigrants in our own time, many Americans have chosen to ignore or to violate federal laws in favor of assisting such persons. In light of these experiences, Park insists that the U.S. ought to rethink policies that have criminalized millions of immigrants, as the injustice of such rules has encouraged people to disobey the law, thereby undermining broader commitments to principles of equality and to the rule of law itself.

KJ

NY State Senator Advocates Torture of American Citizens for Domestic Crimes

 

The Boston marathon bombing unfortunately is bringing considerable anti-foreigner elements to the forefront.  ImmigrationProf previously reported how, among others Senator Rand Paul, have invoked the bombing as a reason to derail comprehensive immigration reform.  There have been calls (by Senators John McCain and Lindsay Graham, no less) for labelling the lone remaining suspect, Dzhokhar Tsarnaev, as an "enemy combatant" and sending him to Guantánamo.   Adding fuel to the fire, NY State Senator Greg Ball brazenly admits in a vaguely coherent rant on CNN that he would torture the surviving Boston bomb suspect -- a U.S. citizen -- to save lives.  Even Ron Paul says that torture violates international law.

KJ

Online Version of Border Security, Economic Opportunity, and Immigration Modernization Act. Senate Bill (2013)

UC Davis law alum Andy Bartlett has been hard at work.  Here is his online Law and Software edition of the Border Security, Economic Opportunity, and Immigration Modernization Act. Senate Bill. It is a work in progress. It has over 1000 hyperlinks, which are also "hoverlinks" (hover the mouse over the link and it will show you the reference without you having to click the link). It works on all modern browsers and hoverlinks have been specially adapted to touch screens and the iPad. And it is integrated with the fully linked version of the Immigration and Nationality Act. Links to "proposed" sections of the INA don't "work" - the section does not exist yet.

KJ

Immigration Article of the Day: Gideon's Migration by Ingrid V. Eagly

Gideon's Migration by Ingrid V. Eagly University of California, Los Angeles (UCLA) - School of Law 122 Yale Law Journal 101 (2013)

Abstract: For the past fifty years, immigration law has resisted integration of Gideon v. Wainwright's legacy of appointed counsel for the poor. Today, however, this resistance has given way to Gideon's migration. At the level of everyday practice, criminal defense attorneys appointed pursuant to Gideon now advise clients on the immigration consequences of convictions, negotiate “immigration safe” plea bargains, defend clients charged with immigration crimes, and, in some model programs, even represent criminal defendants in immigration court. A formal right to appointed counsel in immigration proceedings has yet to be established, but proposals grounded in the constitution, statutes, and expanded government funding are gaining momentum. From the perspective of criminal defense, the changing role of Gideon-appointed counsel raises questions about the breadth and depth of immigration assistance that should develop under the defense umbrella. From the perspective of immigration legal services, the potential importation of a Gideon-inspired right to counsel requires consideration of the appropriate scope and design for an immigration defender system. This Essay does not attempt to resolve these challenging questions, but rather provides a framework for further reflection grounded in lessons learned from the criminal system’s implementation of Gideon.

KJ

Immigrant Kids, Adrift

In the wake of the Boston Marathon bombing, Marcelo Suárez-Orozoco and Carola Suárez-Orozoco write about the need to better integrate immigrant youth into U.S. society.  "The alleged involvement of two ethnic Chechen brothers in the deadly attack at the Boston Marathon last week should prompt Americans to reflect on whether we do an adequate job assimilating immigrants who arrive in the United States as children or teenagers."

KJ

News From Boston: Naturalization Delayed Due to FBI Interview With Older Boston Marathon Bomber Suspect, Fears of Terrorist Ties

Julia Preston of the New York Times reports tha Department of Homeland Security officials delayed granting a naturalization petition for U.S. citizenship by Tamerlan Tsarnaev, one of two brothers suspected in the Boston Marathon bombings, after a routine background check revealed that he had been interviewed in 2011 by the FBI. The FBI interviewed Tsarnaev in January 2011 at the request of the Russian government, which suspected that he had ties to Chechen terrorists. According to Preston, federal "officials pointed to the decision to hold up that application as evidence that his encounter with the F.B.I. did not fall through the cracks in the vast criminal and national security databases that the Department of Homeland Security and the F.B.I. review as a standard requirement for citizenship. The application, which Mr. Tsarnaev presented on Sept. 5, also prompted `additional investigation' of him this year by federal law enforcement agencies, according to the officials."

Tamerian's brother Dzhokhar naturalized and became a U.S. citizen last September.  The fact that the bombing suspects immigrated lawfully to this country has led some to question passage of the immigration reform proposal cuurently pending in the U.S. Senate.  Sen. Rand Paul (R-Ky), for example, has called for a delay in the consideration of the reform proposal in a letter to Senator Majority Leader Harry Reid.  For a quick response to those who are using the Boston Marathon bombing as a reason to delay immigration reform, click here.

Senator Rand Paul

KJ

Immigration Article of the Day: Remedies for Unlawful Alien Workers: One Law for the Native and for the Stranger Who Resides in Your Midst? An Empirical Analysis by Michael H. LeRoy

Remedies for Unlawful Alien Workers: One Law for the Native and for the Stranger Who Resides in Your Midst? An Empirical Analysis by Michael H. LeRoy University of Illinois College of Law, April 7, 2013 Georgetown Immigration Law Journal, Vol. 28, No. 2, 2013

Abstract: In Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), the Supreme Court ruled that the National Labor Relations Board could not order backpay for an unlawful alien whose employer fired him for supporting a union. While the majority reasoned that the Immigration Reform and Control Act of 1986 would be undermined by the Board’s remedy, four dissenting justices believed that stripping the NLRB of this power would enable employers to violate the law without a real consequence, and encourage more hiring of unlawful aliens. My primary research question asks: In work related disputes, where the plaintiff is a suspected or known unlawful alien, how often do courts use immigration status against these individuals? The answer is that most courts disregard the immigration status of complainants. This research is germane to current proposals for comprehensive reform of immigration laws. The analysis draws from a database of court opinions, decided from 2002-2012, where employers argued that Hoffman Plastic should preclude a monetary judgment to unlawful aliens. Specifically, I find: 1. Depending on the type of complaint, plaintiffs won between 60% (working conditions) and 77.5% (pay) of the rulings. 2. Depending on the law, plaintiffs won between 53.3% (scaffolding law) and 77.1% (Fair Labor Standards Act) of the rulings. 3. Only 5% of the rulings mirrored the outcome in Hoffman Plastic, where courts found a violation of an employment law, but denied a monetary award because of the unlawful status of the plaintiff. The study fills a gap in the research literature by measuring when, and how often, courts apply Hoffman Plastic’s disallowance of monetary remedies. It does not suggest a theory to determine when there should be monetary relief for an unlawful alien, and when this relief should be denied. This is because textual analysis shows that theoretical clarity is impossible given the deep complexity and wild variations in Hoffman Plastic situations. Sometimes, the employer violated immigration law; sometimes, neither the employer nor employee complied with the immigration law; and occasionally, an employee not only lied but stole someone’s identity. Judicial experience in dealing with these issues shows that a case-by-case approach is preferable to a one-size-fits-all approach in legislation. To the extent that Congress takes up proposals to broaden Hoffman Plastic beyond the NLRA, this study presents reasons that courts have given to reject this harsh remedy policy. This brings me to a theme, rather than a theory, that might explain how most courts behaved in my study.

The biblical title of this Article — “One Law for the Native and for the Stranger Who Resides in Your Midst” — connects my findings to the Hoffman Plastic decision. The Supreme Court invited lower tribunals to bifurcate remedies, so that unlawful aliens would receive little or no legal protection. But most courts honored the biblical injunction to apply laws uniformly to “natives” and “strangers.” While most courts in this study did not delve deeply into the ethical implications of Hoffman Plastic, they intuited the moral from the “native” and “stranger” passage in Exodus — when a nation treats immigrants who reside unlawfully in their midst as outcasts, they devalue their laws and debase the welfare of their citizens.

 KJ

Senate Legalization Plan: More Fees for F(r)eedom

Guest blogger: Kimberly Armstrong, third-year law student, University of San Francisco

In response to ”Immigration Plan Includes Controversial Path to Citizenship” 

Apparently the way to reform immigration is to continue to do the same old two-step that has been ineffective in the past, expend financial resources in the billions “securing the border” and increase the costs for obtaining citizenship for those who already cannot afford it.  The Senate legislation crafted by the Gang of Eight is an attempt at effective immigration reform.  However, it seems to be making the pathway to citizenship for the already 11 million people living in this country more difficult than it was before. 

The legislation’s path to citizenship is only available to immigrants who got here before the end of 2011.  How will this be determined, considering those who entered before then might have entered here illegally?  They have to initially pay a $500 penalty, pay back taxes, etc. Let me get this straight, in addition to an initial $500 fine and filing fees, they have to pay back taxes too?  To who, some fake Uncle Sam, is this for real?  So, it is likely that the same individual, who sought legal remedy for unpaid wages, but denied by our justice system due to his unlawful status will be required to pay back taxes?  What documentation will they use to file taxes? A fraudulent W-2 form from an employer who knowingly and illegally hired the individual?  Or, what about those who were unable to work at all?  What earnings can they report in order to be eligible to even pay back taxes?  Aside from these fees, according to the bill, they will also have “criminal background checks to get registered provisional immigrant status.”  This part concerns me just as much as the fees requirement. 

Usually immigration related criminal background checks serve some other purpose, not clearly stated in the bill itself.  While arguably a measure to protect public safety, it’s true intent might be a means to weed out those ineligible under this bill’s suggested rubric/pathway to citizenship.  One of the many problems here, is that a number of individuals might not clear the background check based on their already illegal status, in light of our unique and current criminal-convictions system for the undocumented immigrant.  But, wait, there’s more to consider without being considered…

Renewal after six years, by paying another $500. And then after waiting 10 years in all…” I am a little unclear here.  After waiting six years and paying an additional $500 fee to renew their provisional status, they have to wait another four years, for a total waiting period of ten years?  After which time, “they can [then] apply for legal permanent resident status, which is commonly known as getting a green card by paying another $1,000, which allows them to stay in the country but not get any means tested, federal benefits, including Obamacare.”  Well, thank you very much! 

By now, any applicants still interested would have racked up over two-thousand dollars in application fees alone, not to mention the application fee, plus any back taxes, plus any costs for criminal background checks that might be required at the applicant’s cost, plus any other unknown fees not considered in this bill, but likely associated with simply applying for citizenship under this new pathway.   For instance, attorney’s fees for representation, transportation costs, time lost facing long waits, bureaucracy trying to simply get in the system.  The bill offers the final cherry on top:
“And then they have to wait at least another three years before applying for citizenship. So 13 years, at least, before any of these people could actually become voting citizens.” 

Count it up, thirteen years and a few thousand dollars, at least.

Supporters of this bill must be likening this pathway to citizenship to the costs for giving birth to a child in the U.S.  The only difference is that at least the latter has established citizenship rights without having to wait until his or her thirteenth birthday.  I understand the deterrent effect in trying to lower the numbers of undocumented immigrants entering or already in this country, but this pathway lacks consideration from those who will actually be affected by it.  And, the goal of deterrence might actually be curbed.  A fairer system should be implemented Maybe mitigate the wait time of thirteen years by the amount of years a person has already resided in the U.S., where less than thirteen years. Seriously cut some fees, reconsider drafting a bill that might not bring as many dollars, but may make a lot more sense. 

bh

Immigration Article of the Day: The Law and Economics of Family Unification by Alan Hyde

The Law and Economics of Family Unification by Alan Hyde, to appear in 28 Georgetown Immigration Law Journal #1 (2014)

Abstract The US is internationally unique in the percentage of immigrant visas reserved for family members. The practice has been criticized on the grounds that visas for parents, siblings, and adult children might better be reallocated to skilled workers, and Congress has come close to adopting such reforms. This Article argues by contrast that family unification is a very good economic deal for the US. First, the limited data that exist, contrasting immigrant earnings by type of visa, show no sharp distinction in earnings by type of immigrant visa. This is a surprise to one operating entirely within a human capital framework in which all earnings in labor markets are necessarily a function of skills and education. The paradox is resolved by incorporating three economic models of migration or labor markets that are not usually applied to this debate: (1) New Economics of Migration or family investment models, in which families, not individuals, are economic units; (2) network models of labor markets, in which productivity reflects social ties rather than skills as such; and (3) family economics in which a woman’s economic contribution is often reflected in the earnings of her husband, children, or a family firm. Incorporating these models makes sense of three frequently-observed patterns of immigrant economic activity that illustrate why family unification visas are a good economic deal. Immigrant women frequently perform paid or unpaid intrafamily child care. Immigrants frequently work in family businesses. Immigrant wives frequently work while husbands build small businesses or attend graduate school. In each of these common scenarios, the immigrant admitted on a family unification visa is economically productive and almost certain not to be taking a job from a US worker. However, the immigrant’s economic contribution is importantly realized by the immigrant’s children, spouse, or family business. While skilled migration is crucial to US economic success, there is no reason that it should come at the expense of family unification.

Download The Law and Economics of Family Unification

KJ

HLR: Developments in the Law — Immigrant Rights & Immigration Enforcement Introduction

The Harvard Law Review has published "Developments in the Law — Immigrant Rights & Immigration Enforcement Introduction."

Chapter One: Plenary Power, DOMA, and Executive Deference

Chapter Two: State and Local Regulation of Unauthorized Immigrant Employment

Chapter Three: The Role of the Exclusionary Rule in Removal Hearings

Chapter Four: Representation in Removal Proceedings

KJ

Asylum Detention Needs Improvements

As Congress considers legislation to reform the U.S. immigration system, a new U.S. Commission on International Religious Freedom (USCIRF) report, Assessing the U.S. Government’s Detention of Asylum Seekers: Further Action Needed to Fully Implement Reforms, finds that the U.S. government continues to detain asylum seekers under inappropriate conditions in jails and jail-like facilities. This detention is contrary to both longstanding USCIRF recommendations and reforms the Department of Homeland Security (DHS) announced in 2009.

Between July and December 2012, USCIRF staff toured 10 detention facilities nationwide and met with officials and asylum seekers. The goal was to assess progress DHS’ Immigration and Customs Enforcement Agency (ICE) had made on reforms that, if fully implemented, would realize USCIRF recommendations on the detention of asylum seekers. In October 2009, ICE had announced plans to develop a new immigration detention system, with facilities based on civil, not penal, models in locations with access to legal services, emergency rooms, and transportation. “

USCIRF continues to recommend that ICE codify into regulations its 2009 parole process and criteria guidelines under which most asylum seekers found to have a credible fear of persecution are paroled rather than detained. USCIRF also finds that further improvements are needed to expand immigration detainees’ access to legal information, representation, and in-person hearings.

KJ

U.S. Department of State 2012 Country Reports on Human Rights Practices

Today, U.S. Secretary of State John Kerry submitted the 2012 Country Reports on Human Rights Practices to the U.S. Congress. This report is required by law to inform U.S. Government policymaking. It also serves as a reference for other governments, international institutions, non-governmental organizations, scholars, interested citizens, and journalists.

KJ

Family Immigration Works--Even for Siblings from the Philippines

Guest blogger: Jeni Frudden, third-year law student, University of San Francisco

My mother met my father in 1976 when he was stationed in the Philippines for the Peace Corps. It is a love story that is often remembered on Valentines Day. It is the story of my father who had won some extra money at a cock-fight in Manila and with his earnings decided to treat himself to a nice dinner on February 13, 1976. My mother ended up being his waitress, he would end up asking her out for a Valentine’s date, and she would later end up his wife.

My mom immigrated through her marriage to my father and came to the States as a lawful permanent residence. Though my mom could have adjusted her status relatively soon after entering the United States, it was only when my mom’s 22 year old brother died of tuberculosis in the Philippines that she decided she would become a citizen and petition for her two brothers to join her in the States in an effort to “save them.” The impact that the current family-based visa system has had on my family is nothing less than astonishing. My own family is a perfect example of the importance of family-based visas.

In 1991 my mother petitioned for her unmarried brother and his three daughters to come to the U.S. It wasn’t until 22 years later that she received notice that the visa had been granted. Just two weeks ago my three cousins and their father flew together to the United States to settle in Iowa where my parents have made a home. When I called home the other day, my father jovially answered the telephone in Filipino (a language I once knew, but without practice have forgotten).

My three cousins and parents were sitting in the kitchen having breakfast. When my mom came on the phone she laughed and told me my dad had just tried to offer the girls a glass of cold milk. “Ayako” they said – I don’t want it. Laughing my mom recounted the story of how when she first arrived in the States my father’s parents sat her down for a dry turkey sandwich and cold glass of milk, “I almost gagged! Cold milk is just something we didn’t grow up having” my mom exclaimed.

This was a story just as familiar to me as the Valentine’s Day love story. I know all about the difficulties my mom had when she first came to the United States. Unable to speak the language, and only knowing my father, she jokes that she “cried the entire first year and a half until I had your brother.” When I asked my cousins if they cried leaving the Philippines, they said no, noting that they had no reason to cry boarding the plane with their family and deplaning in Iowa to join my other uncle who immigrated in 1993, his wife, and their two American-born children. Unlike my mother, my cousins and their father are immigrating to the U.S. with a support system in place to help them find jobs and navigate their new home.

My mother has been here for over 26 years, 4 years more than the time she spent growing up in the Philippines. With the help of her youngest brother (who also came to the U.S. on a family-based visa) she has become a successful business woman running her own catering company and becoming famous for her food stand outside of Iowa Hawkeye football games (if you’ve ever been to Iowa City on game day you might know her as the ‘pork-on-a-stick-lady’).

My mom’s story of immigrating to the U.S. and the trials and triumphs she has found here are proudly retold by her three children, who know that she truly exemplifies the American dream. Now that my cousins are here I wonder what stories and successes they will bring to the family narrative. I imagine that they will be around to help out around the house and share more meals with my aging parents in a way that my brother and I, in California, and my sister, in Colorado, cannot. I imagine that they will be there for my two elementary-aged cousins, Anthony and Angelina, to teach them about Filipino culture and practice speaking Filipino so that they will not forget the language as I once did. Most of all I’m relieved that they arrived before the latest round of immigration reform, which may very well decide that family reunification doesn’t matter in the way that my family knows it does.

Lawmakers have now proposed to do away with visas for non-immediate family members. The new bill proposes that 18 months after the proposed legislation is enacted, citizens, like my mother, would no longer be able to sponsor siblings. The new merit-based immigration system severely limits family based petitions in favor of job-based skills and education.

At the San Francisco Immigrant Rights Commission Hearing this past February, Lillian Galedo, Executive Director of Filipino Advocates for Justice, noted that “family reunification has been a cornerstone of U.S. immigration law since 1965, based on the logic that immigrants thrive and are more likely to succeed in their integration in their new country when they have a base of mutual support and are surrounded by their loved ones. This works.”

She’s right. It does work. It worked for my immigrant mom to have my uncle there for emotional support while my dad underwent brain surgery. It worked for my family when my uncle was around to help my mom after she had a kidney transplant. It works for me who will now have a broader base of familial support. It will work for my American-born cousins who will now get a chance to practice Filipino with their newly arrived cousins. It will work for my newly arrived family who will be supported in their integration into the States.

Unfortunately, if lawmakers have their way, it will no longer work for other immigrant families. It is striking to me that the proposed Senate immigration bill seeks to undermine the importance of family-based immigration and the role it plays in supporting successful immigrants like my own mother.

bh

Preempting Immigration Detainer Enforcement Under Arizona v. United States by Christopher N. Lasch

Preempting Immigration Detainer Enforcement Under Arizona v. United States by Christopher N. Lasch University of Denver Sturm College of Law April 17, 2013 3 Wake Forest J. of L. & Pol'y __ (forthcoming 2013)

Abstract: The power of the states to participate in immigration enforcement has been hotly debated. With its June 25, 2012 decision in Arizona v. United States, the Supreme Court dealt a hard blow against state involvement in immigration enforcement. This article addresses the impact of Arizona’s preemption analysis on one particular kind of state participation in immigration enforcement: compliance with federal immigration detainers by prolonging detention of suspected immigration violators who would otherwise be released from custody. I consider whether states, while not required, may nonetheless choose to prolong detention in compliance with immigration detainers. Or is prolonged detention foreclosed completely by Arizona? Part I briefly discusses the immigration detainer’s role in immigration enforcement. Part II considers whether (applying the preemption lessons of Arizona) any presumed state authority over immigration enforcement is preempted in the immigration detainer context. I conclude that any residual state authority to enforce federal immigration laws after Arizona is preempted, at least with respect to immigration detainers. This is true with respect to both civil and criminal immigration enforcement. State and local law enforcement officials choose to comply with federal immigration detainers at their peril. While local officials may communicate with federal officials regarding suspected immigration violators and notify federal officials of the impending release of a targeted prisoner, prolonging the detention of a prisoner on the supposed authority of an immigration detainer is preempted. Honoring immigration detainers by prolonging detention may expose local officials, agencies, and municipalities to civil liability under both federal and state law.

KJ

Bombing Suspects Reportedly Are Legal Immigrants

"Authorities say that the 2 Boston bomb suspects are brothers, are legal permanent residents of Chechen origin - @NBCNews, @PeteWilliamsNBC" 

Here (and here) is more information about the Boston Marathon bombing suspects.  Preliminary reports are that the brothers came with their parents from Russia in 2002 and 2003 and the family sought asylum in the United States.  The brothers' immigration and citiozenship status is outlined here.

CNN reported early this morning that one of the suspects has been killed and one is on the run.

Will the fact that the Boston Marathon bombing suspects are immigrants affect the debate over immigration reform?  Even before the suspects were identified, some leaders from the right, including Congressman Steven King (R-Iowa), named immigrants as among the top likely culprits for the bombing.  Not surprisingly, Congressman King opposes the immigration reform proposal unveiled earlier this week:

"The Gang of Eight's bill is aggressive and outrageous amnesty," said King. "It is instant legalization of all illegal immigrants in the United States, with very few exceptions. It contains only promises: the promise of a plan for border security, of a backup plan for the border security, and of workplace enforcement in the form of making E-Verify mandatory. What makes anyone think President Obama would enforce any future immigration laws when he has violated his own oath of office to take care that the laws be 'faithfully executed'? I expected this from Democrats who have long understood their brand of more taxes, more borrowing, and more government giveaways, and know how to sell it. It is the Republicans who should know better. Republicans who support this bill have effectively said to Americans, 'we are prepared to sacrifice the Rule of Law on the altar of misguided and erroneous political expediency'."

In an immigration reform hearing on Friday morning, Senator Charles Grassley (R-Iowa) quickly jumped on the tighten the borders/national security bandwagon.

KJ

Generational Difference and Fear in Mexican Immigrant Communities

Guest blogger: Lorena Nuñez, second-year law student, University of San Francisco

The fear that undocumented people—and those that love them—feel is real. When I read news feeds about the roughly 470,000 DACA eligible young people who have yet to file their applications for deferred action for fear of deportation, I get it.  When my undocumented aunt refuses to go to Sea World with the family because it means driving to San Diego, California—a city notorious for checkpoints—I sympathize. When I hear that my cousin, an American citizen, and her undocumented husband are not seeking to adjust his immigration status for fear that he will have to leave the United States in order to do so, I congratulate her for being smart.  When my undocumented ex-husband did not want to cross the border unlawfully after receiving a 10-year ban from re-entering the United Sates for fear that he would die in the attempt, I understood. Unlike my smart cousin, my ex-husband and I tried to adjust his status but we failed. 

My brother-in-laws did not appreciate the reach of this fear. To all five of my Latino (four Mexican and one Costa Rican) naturalized citizen brother-in-laws who themselves shared a border-crossing experience in common with the man in my life at the time, my ex-husband was just not “man” enough. They could not understand, let alone accept, that my ex-husband would not make the trek across the desert to be with his wife out of fear for his life.  

There is a disconnect between the older Mexican generation that arrived in the 1980s as adults and today’s generation that are coming of age while in the “citizenship status closet,” those that are undocumented but grow up never telling anyone. Those that arrived in the 1980s, or better yet, crossed the Mexico–US border in intervals throughout the year to support their families in Mexico, think of the border crossings as habitual and difficult. Sure, they were scary too, as my brother-in-laws claim, but they never seriously considered that on one of those times they might never again see their families. The question for them was not “if” but “when” to cross, again. Theirs was a surmountable fear, a challenge where their masculinity and bravado won—or at least they like to describe so today when asked about their experiences. Either my brother-in-laws like to put up a “macho” front or there really is a more palpable fear today.  I think it is both.

While I do not actually believe that crossing unlawfully as my brother-in-laws did was ever without any real risk, crossing the border unlawfully today is almost an entirely different concept.  When I was young girl I remember overhearing adult conversations about “coyote” fees, human smuggler fees, ranging from $1,000 to $2,000 a head. Today, the price per head can be upwards of $8,000.  In addition to the prohibitive costs, families will not even consider taking the risks with young girls for fear that they will be raped by the smugglers or by others in the group. And even if neither the exorbitant costs nor rape are fears that actually stop them, heat stroke or the relentless and armed border patrol agents might. 

Unfortunately, those like my brother-in-laws who adjusted their status thanks to the Immigration and Control Act of 1986 (better known as the amnesty law) do not understand those like the DACA eligible youth who are hesitant to apply for this relief.  They wonder why young people are not taking advantage of the “break” they are given and admonish them for being “tapados,” a colloquial term in Spanish that means ignorance stemming from a rural upbringing: a country-bumpkin-ness if you will. It is true that the Deferred Action for Childhood Arrivals (DACA) provides some relief to young people in the form of protection from deportation and a valid work visa for at least two years, but it is not a pathway to citizenship and DACA eligible youth know that and worry.  They have a right to worry and fear that after the two years are up, their information and those of their (undocumented) loved ones can be used against them to their detriment.  The political climate is just not what is used to be and they are well aware of that reality. The problem is that uncles, parents and older cousins experienced immigration issues at a time when such a thing as amnesty was even politically viable. The idea of an amnesty-like immigration reform today is virtually laughable. 

So when we hear that there are still thousands DACA eligible youth not “taking advantage of the opportunity,” it is for good reason. They have many real fears. The choice to apply for this relief is a deeply personal one. The pro-immigrant rights community should understand where they are coming from or at the very least accept that they cannot truly understand and therefore defer to youth’s decision-making and risk-taking abilities. It ain’t like it used to be back in the days, as my brother-in-laws like to say. 

bh

Immigration Article of the Day: (Un)Reasonable Suspicion: Racial Profiling in Immigration Enforcement After Arizona v. United States by Kristina M. Campbell

(Un)Reasonable Suspicion: Racial Profiling in Immigration Enforcement After Arizona v. United States by Kristina M. Campbell University of the District of Columbia - David A. Clarke School of Law August 9, 2012 Wake Forest Journal of Law and Policy, Forthcoming

Abstract: On June 25, 2012, the United States Supreme Court issued its landmark decision in Arizona v. United States, striking down three of the four provisions of Arizona’s notorious S.B. 1070 challenged by the United States Department of Justice as preempted by federal immigration law. Despite agreeing with the government that the majority of Arizona’s attempt to regulate immigration at the state level through S.B. 1070 was impermissible, the Supreme Court let stand the most controversial section of the law, Section 2(B) – the so-called “show me your papers” provision. Under Section 2(B), state and local law enforcement officials in Arizona are required to check the immigration status of persons whom they have “reasonable suspicion” to believe are undocumented. It is the meaning of “reasonable suspicion” in the context of immigration enforcement – and how state and local law enforcement will apply this requirement – that has given rise to concerns of racial profiling once the law goes into effect.

This Article examines the “reasonable suspicion” requirement of S.B. 1070’s Section 2(B), and argues that enforcement of this provision will give rise to stops, detentions, and arrests based on constitutionally impermissible factors such as race, color, and ethnicity that will ultimately stymie the efforts of Arizona and other jurisdictions to enact state-level immigration enforcement laws. Part I discusses the enactment of S.B. 1070 in 2010, and the decisions by lower federal courts enjoining major provisions of the law. Part II analyzes the United States Supreme Court’s decision in Arizona v. United States striking down the majority of S.B. 1070 as preempted by federal immigration law. Part III discusses Section 2(B) and the “reasonable suspicion” standard that permits state and local law enforcement to inquire as to the immigration status of persons they believe may be undocumented. The Article concludes with Part IV, which argues that Section 2(B) will ultimately be deemed unconstitutional due to the inability to enforce it in a manner that does not impermissibly rely on racial profiling, and that its demise will lead to more state reliance on cooperative immigration enforcement with federal authorities – such as the Secure Communities program – and bring about the end of attempts to pass state-level immigration enforcement regulations.

KJ