Thursday, April 30, 2015
Twenty-one Latinos in Long Island, New York filed a lawsuit Wednesday alleging that multiple officers in the Suffolk County Police Department (SCPD) systematically targeted them and other Latinos for unfounded, race-based stops after which they were either robbed or given unjustified traffic citations. They also charge the SCPD needlessly permitted this practice to continue within its ranks for 10 years, a crime spree that left local Latinos too afraid to drive their cars, leave their homes or interact with the police.
This lawsuit comes a year after SCPD Sgt. Scott Greene was arrested after being caught on camera taking money from a Latino driver he had pulled over during an undercover officer sting operation. Make the Road New York and LatinoJustice PRLDEF soon learned from dozens of victims who had been too afraid, or thought it pointless, to complain about widespread police criminality. The victims claimed that one or more officers would, in clear violation of police rules, get a hold of the victim’s wallet and then return it a few minutes later with one or two hundred dollars missing.
Attorneys from LatinoJustice PRLDEF and law firm Shearman & Sterling LLP, working on a pro bono basis, are representing the plaintiffs. “People of color should be able to walk and drive the streets of Suffolk County without fear of being harassed and robbed by SCPD officers,” said Juan Cartagena, President and General Counsel of LatinoJustice PRLDEF. “The Constitution and civil rights laws of this country demand nothing less from any law enforcement agency, and it is based upon those laws that we have commenced this action.”
According to the plaintiffs, any Latino in plain view was fair game. Most plaintiffs were stopped and robbed while driving, others while sitting in a parked vehicle and still others while walking down the street. A few had their home invaded by police officers.
LatinoJustice PRLDEF requested that the District Attorney expand the investigation beyond Sgt. Greene. The DA has not replied to the request and in fact has only indicted Sgt. Greene in the robberies.
LatinoJustice PRLDEF has requested numerous times that the Department of Justice investigate SCPD for crimes against Latinos, but to date those requests have been largely ignored.
Congratulations to immprof Betsy McCormick and her students in the University of Tulsa College of Law's Immigrant Rights Project!
Anna Carpenter at TU has tipped us off about some wonderful successes. She writes:
During spring break of this year, Betsy, nine of her students, one undergraduate psychology major, two law school staff, and two dedicated volunteers traveled to Texas to participate in a pro bono project providing representation to immigrant women and children held at Karnes County Residential Center, a privately run immigrant detention facility located 60 miles southeast of San Antonio.
Originally intended to house men only, the 532-bed (and expanding) facility opened its door to women, children, and families in August 2014, partly in response to last summer's dramatic influx of South American refugees at the Texas border. In the weeks leading up to the trip and during their week in Texas, Betsy, her students, the staff, and the volunteers worked with more than 60 detained families conducting intake interviews, preparing detained asylum seekers for credible fear interviews and asylum hearings, and preparing bond reduction motions. Students Tyler Vermillion, Carlie Ruhlman, Zack Brandwein and Marlina Rogers also successfully represented clients in three bond hearings in San Antonio Immigration Court.
Students Zack and Marlina, in what appears to have been an unprecedented result for Karnes families, obtained release for their client and her son without paying any bond. Since returning from Karnes, students have continued their work with their detained clients with the result that every client that clinic students represented at Karnes – including 5 mothers and 9 young children – has now been released from custody.
TU currently has the only law school clinic in the state of Oklahoma focused on immigration, and they are doing amazing and much-needed work.
The New Colossus
Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
"Keep ancient lands, your storied pomp!" cries she
With silent lips. "Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!"
In "Argument analysis: The easy way or the hard way to decide an untimely immigration appeal?," Steve Vladeck on SCOTUSBlog summarizes the oral arguments in Mata v. Lynch. As Vladeck had previously wrote, "The Office of the Solicitor General government had already conceded that the Fifth Circuit was on the wrong end of a ten-to-one circuit split on the hypertechnical question presented: `Whether [it] erred in this case in holding that it has no jurisdiction to review petitioner’s request that the Board of Immigration Appeals equitably toll the ninety-day deadline on his motion to reopen as a result of ineffective assistance of counsel.'”
The only lawyer defending the decision below was Beck Redden LLP associate William Peterson — whom the Court appointed as an amicus.
Turkey is currently host to the largest community of displaced Syrians in the region. Adding to the challenge, the rising refugee inflows have occurred even as Turkey was in the midst of overhauling its asylum and reception system to meet international, and particularly European Union, standards.
The country, which according to United Nations estimates had more than 1.7 million Syrian refugees as of March, has largely shouldered the burden on its own—spending $5 billion as of early 2015, with just 3 percent coming from international community contributions.
A new report from the Migration Policy Institute’s Transatlantic Council on Migration, Syrian Refugees in Turkey: The Long Road Ahead, by Ahmet İçduygu, dean of the College of Social Sciences and Humanities at Koç University in Istanbul, examines the policies and conditions of Syrian refugees, as well as the implementation of reforms to Turkey’s migration law. With growing dispersion and movement of Syrian refugees through Turkey to other countries, mainly in Europe, Turkey’s experience and policies towards the arrivals have implications for the broader region.
As the numbers of Syrians overwhelmed the capacity of camps funded and managed by the Turkish state and NGOs, refugees started taking shelter in towns and cities throughout the country. Many struggle to access adequate housing and services, and are forced to find work in the informal economy, often for extremely low wages. The Turkish public, meanwhile, is expressing increased concern about the high numbers of Syrians and there is a growing sense that the newcomers are driving up housing costs and competing with Turks for jobs.
Turkish reception policies were predicated on the assumption that the Syrian conflict would come to a swift conclusion, allowing the displaced Syrians to return home. And indeed, under Turkish law, asylum rights are extended only to Europeans, making Syrians temporary guests, not refugees. As the conflict stretches into its fifth year, however, it has become clear that a shift in policy to encompass longer-term solutions is needed.
While noting the reforms under Turkey’s recent immigration law, the report argues that a number of steps are still necessary to improve the country’s asylum and reception systems and promote the integration of Syrian refugees into Turkish communities. Among them: lifting the policy that limits asylum rights to Europeans and ending the legal immigration preference for individuals of “Turkish descent and culture.”
The report is the third in a seven-part series that draws from a recent Council meeting, “Refitting the Global Protection System to Meet the Challenges of Modern Crises.” Next week, MPI will publish two reports examining innovative approaches that have the potential to reinvigorate the protection regime and help refugees transition from dependence to self-sufficiency. Earlier reports can be read here.
On May 4, MPI will host an event to discuss the worsening Syrian crisis, featuring experts from Refugee Council USA, which had a delegation in the region recently, as well as a top official from the U.S. State Department’s Bureau of Population, Refugees and Migration. Details on the event and livestream are available here.
From the Bookshelves: Uprooting Community: Japanese Mexicans, World War II, and the U.S.-Mexico Borderlands by Selfa A. Chew and Shameful Victory: The Los Angeles Dodgers, the Red Scare, and the Hidden History of Chavez Ravine by John H. M. Laslett
There are two history books that soon will be released that may interest readers of the ImmigrationProf blog.
Joining the U.S.’ war effort in 1942, Mexican President Manuel Ávila Camacho ordered the dislocation of Japanese Mexican communities and approved the creation of internment camps and zones of confinement. Under this relocation program, a new pro-American nationalism developed in Mexico that scripted Japanese Mexicans as an internal racial enemy. In spite of the broad resistance presented by the communities wherein they were valued members, Japanese Mexicans lost their freedom, property, and lives.
In Uprooting Community, Selfa A. Chew examines the lived experience of Japanese Mexicans in the U.S.-Mexico borderlands during World War II. Studying the collaboration of Latin American nation-states with the U.S. government, Chew illuminates the efforts to detain, deport, and confine Japanese residents and Japanese-descent citizens of Latin American countries during World War II. These narratives challenge the notion that Japanese Mexicans enjoyed the protection of the Mexican government during the war and refute the mistaken idea that Japanese immigrants and their descendants were not subjected to internment in Mexico during this period. Through her research, Chew provides evidence that, despite the principles of racial democracy espoused by the Mexican elite, Japanese Mexicans were in fact victims of racial prejudice bolstered by the political alliances between the United States and Mexico.
The treatment of the ethnic Japanese in Mexico was even harsher than what Japanese immigrants and their children in the United States endured during the war, according to Chew. She argues that the number of persons affected during World War II extended beyond the first-generation Japanese immigrants “handled” by the Mexican government during this period, noting instead that the entire multiethnic social fabric of the borderlands was reconfigured by the absence of Japanese Mexicans.
On May 8, 1959, the evening news shocked Los Angeles residents, who saw LA County sheriffs carrying a Mexican American woman from her home in Chavez Ravine not far from downtown. Immediately afterward, the house was bulldozed to the ground. This violent act was the last step in the forced eviction of 3,500 families from the unique hilltop barrio that in 1962 became the home of the Los Angeles Dodgers that is now known as Dodger Stadium.
John H. M. Laslett offers a new interpretation of the Chavez Ravine tragedy, paying special attention to the early history of the barrio, the reform of Los Angeles's destructive urban renewal policies, and the influence of the evictions on the collective memory of the Mexican American community.
In addition to examining the political decisions made by power brokers at city hall, Shameful Victory argues that the tragedy exerted a much greater influence on the history of the Los Angeles civil rights movement than has hitherto been appreciated. The author also sheds fresh light on how the community grew, on the experience of individual home owners who were evicted from the barrio, and on the influence that the event had on the development of recent Chicano/a popular music, drama, and literature.
Wednesday, April 29, 2015
This week's podcast features crImmigration prof César Cuauhtémoc García Hernández, who spoke about European immigration. César pops up around minute 12:04 and he signs off around 33:00.
The show manages to maintain a slightly irreverent and jovial tone while tackling serious and topical immigration issues. Here's a sample question from Stephen: "Now, if you listen to our politicians here in the United States, you'll know that the solution to our immigration problem is more fencing. Probably a taller one. Probably one that is longer and maybe even electrified ... so ... has Europe considered putting a fence in the Mediterranean sea. If so, how tall?"
I also can't resist noting Stephen's musing on whether Europeans, in arguing that their immigration policies aren't racist, might say: "We're also concerned with protecting the Baltic Sea." Touché.
Harvard Professor Deborah Anker and Harvard Immigration and Refugee Clinical Program Win Human Rights Award
It has been announced that Professor Deborah Anker and the Harvard Immigration and Refugee Clinical Program (HIRC) will receive a prestigious human rights award from the American Immigration Lawyers Association at its annual meeting in June.
Anker, director of HIRC, will receive the 2015 Arthur C. Helton Human Rights Award. The award is presented by AILA annually in recognition of outstanding service in advancing the cause of human rights. The award was established in 1983 and renamed in 2003 to honor Arthur Helton, the lawyer and human rights activist killed in the 2003 bombing of the United Nations headquarters in Baghdad.
Anker is the author of Law of Asylum in the United States and has co-drafted groundbreaking gender asylum guidelines and amicus curiae briefs. Her work has been cited by the U.S. Supreme Court and by various international tribunals. She is Senior Researcher for the Refugee Law Initiative, based in London.
Anker is one of the most widely known asylum scholars and practitioners in the United States and a pioneer in the development of clinical legal education in the immigration field, training students in direct representation of refugees and creating a foundation for clinics at law schools around the country.
The Harvard Immigration and Refugee Clinical Program has successfully represented hundreds of refugees fleeing human rights abuses, and has authored appellate briefs, shaping the law in such critical areas (in addition to gender asylum) as children’s asylum, asylum for indigenous peoples, and interpretation of key terms such as “persecution” in international and domestic refugee law.
Guest Blogger: Nubyaan Scott, third-year law student, University of San Francisco:
If you are an American who is reading this article, what is your vision for immigration? Many of us believe in the fact that our current system is ineffective and that reform is necessary. However, in order to reform something, you must have a vision for the result. We should first decide what we want the act of gaining American citizenship to mean to others and to us. In our current system, immigration is effectively divided into three categories: merit, class, and wealth. Merit is based on the idea of the American Dream and America as a meritocracy.
Meritocracy: an elite group of people whose progress is based
on ability and talent rather than on class, privilege, or wealth.
If the phrase “elite group” is a little off-putting at first glance, let me clear that up for you.
Elite: the choice or best of anything considered
collectively, as of a group or class of persons.
Whether unwittingly or otherwise, we certainly belong to an elitist culture. From our sports teams, to our military, to our position as “moral compass” of the earth; America as a whole is the self-proclaimed elite. Some people have argued that the American Dream is dead, while others claim to be living it. Regardless of that, many, if not most of the people who immigrate to the United States of America still believe in the American Dream. And, for many, America equals “the sky is the limit,” while their country of origin equals “the limit is the sky.” The magic and promise of the American Dream enforces the idea that no matter your assigned caste, it is talent and ability that will uplift you into the elite; or at least into the freedom to live as you wish.
And, then we have the class issue. The business side of immigration seems mostly to be based around class. People who work in that side of immigration are primarily concerned with the preservation of the system that will allow the educated class of other countries to immigrate to the U.S. Even our government seems primarily to be concerned with the effects of immigration reform on the business class. This is likely due to the prevailing idea that these people are going to bring money into the U.S. economy. And, that they generally require little-to-no investment by the American government, because they fly in on a Monday and become a part of the 1% by Tuesday afternoon. For many corporations and members of our government, this is what most of our immigration reform efforts should be supporting. The prevailing opinion is that we should relax regulation as much as possible in order to maintain or even increase the presence of this class of immigrants and potential American citizens.
Then, you have the group of individuals who due to wealth are able to give their children the gift of dual citizenship, at birth. Within this group of people, American citizenship is often considered a valuable asset that is not necessarily tied to starry-eyed ideas of the promise of the American Dream. Whether or not this group believes that America is in fact the elite, they nevertheless see value in belonging to our group.* Just in case anyone is unfamiliar with this subject, I’ll provide a brief explanation. Wealthy people who are not U.S. citizens will sometimes (for the reasons mentioned above) decide that their children should be U.S. citizens. And, the easiest way to be afforded that opportunity is to simply be born in the U.S. So, these individuals will often hire companies to arrange for them to give birth in the United States. Things like plane tickets, car services, hotels, nurses, and even hospital stays can be booked ahead of time. And, a woman will fly to America during the last weeks of her last trimester (which of course requires very little documentation, because she is only considered a visitor), and be a tourist until she goes into labor. The woman and her family often will only stay in the U.S. long enough for them to receive a birth certificate, and their child to be cleared to fly. At which point they return to their country of origin. The newly born U.S. citizen may in the future never choose to live in (or visit) the United States; or, they may choose to attend college here (and potentially receive in-state tuition). The point is that they are given an opportunity to choose. And, that is the value that their parents understand.
*I realize that the tone of this section (& possibly the entire piece)
may come off as a tad xenophobic or anti-immigrant. I just want to clarify
that I hold neither of those positions. My only goal is to encourage people
to look below the surface of immigration (and reform) and hopefully
develop or expand their opinions on the subject.
Now that I have parsed out my idea of the divisions in our immigration system, I think it would be helpful to provide examples of how these divisions could likely affect real lives. Especially since I think most Americans do not understand the practical barriers of American citizenship for the most demonized group of immigrants (those who enter illegally). For purposes of my argument, I will assign a name and brief background to each category discussed above. I’ll start with Mohinder Meritocracy.
Mohinder is devoted to the idea of becoming an American citizen. He is twenty years old, from an incredibly impoverished community and has the equivalent of a ninth grade education. He has saved up enough money to miraculously convince the U.S. embassy to issue him a visitor's visa to the U.s., and he takes a flight to the U.S. Mohinder fully intends on staying in the U.S. after he lands, but he doesn’t have the resources or knowledge needed to apply for lawful permanent residence or a work visa. Mohinder’s plan is to live with his U.S. citizen sister who is ten years older. They have kept in loose contact over the years, and though she has very little resources herself, she is willing to help him pursue his dreams of citizenship. Mohinder and his sister research what it would take for him to become an American citizen.
They decide that their best choice is for her to apply for a Family-based Immigrant Visa on his behalf. Due to the amount of processing time that it takes for siblings who apply, Mohinder would likely have to wait more than a decade to receive a green card (which would be the first real step in his path to citizenship). So, he decides that his best chance for advancement is to save up as much money as he can working without authorization in the U.S., before returning to India to apply for a green card. Mohinder works various jobs and earns below minimum wage over the next 10 years, in order to save enough money to attend school when he returns to India.
Mohinder decides that he is ready to return to India and begin school, and he manages to do so safely. Because he was undocumented in the U.S. for more than a year, he is subject to the 10-year bar from returning, but he is waiting for his priority date based on his sister's family based petition for him to be reached anyway. Mohinder starts his schooling and eventually graduates and starts a small restaurant which he also lives in. While he is interested in marrying and starting a family, he decides not to because he does not want to take the chance that his new family would have even more difficulty becoming citizens. Now thirty-five, Mohinder gets notification that his priority date is reached, and he can process his immigrant visa application. Mohinder returns to the U.S. and is now one step closer to U.S. citizenship, as a legal permanent resident. After another 5 years, Mohinder now qualifies to become a U.S. Citizen. At this point, Mohinder is gainfully employed, engaged, and living on his own. He is able to be naturalized as an American citizen, and is now ready to invest in his future by purchasing a home and getting married; he is now 42 years old.
Huan Classy is 22 years old and comes from an upper middle-class family in China. His parents were able to afford his college education, and Huan has degrees in computer science and engineering. Due to the connections he made in college, and help from his parents, Huan can afford to develop an innovative App that catches the eye of several Fortune 500 companies in the Silicon Valley. After getting several offers of employment, Huan decides on the company that has had the most success getting Employment-based Immigrant Visas. After a few years, Huan is granted a green card and is a lawful permanent resident. He begins his work in the U.S. and participates in several technological advances over the next five years. Huan is then on his way to American citizenship. Now 30, Huan is wealthy established, and has a healthy portfolio of diversified investments. By the time he completes the citizenship process, he is 35, and married with a baby on the way. Huan’s children will of course also be American citizens, and his family is now a part of the American upper class.
Rosa was born in the United States, so she is an American citizen. She comes from a remarkably wealthy family in Brazil that arranged for her birth in the U.S. At 18, Rosa decided that she would like to attend school in the U.S. After being accepted to Stanford, Rosa’s parents purchased a home in Palo Alto for her, and she moves in before the start of her freshman year. After earning her MBA, Rosa moves back to Brazil, but decides to keep her home in Palo Alto. Rosa eventually invests millions of dollars in residential property in New York City, and Los Angeles as well. Rosa visits the U.S. annually, but doesn’t desire to live here, as her family all reside in Brazil. However, as a U.S. citizen, Rosa is able to assist some relatives in gaining green cards, and potential citizenship as well.
While these individuals may seem to have very different incentives and diverse backgrounds, they actually share common motivations. They seek American citizenship because they value the increased choices and opportunities that come along with it. That is, arguably, the inherent value in citizenship in this country. So, the question we have to decide on is whether we want a group of people with ultimately the same motivations to be led down such different paths, mainly based on a combination of luck and what advantages they may or may not have. Is this what we want American citizenship to be? If so, we are effectively telling the world that because we value citizenship in our country so greatly, if you lack class or wealth (or extenuating circumstances; i.e. asylum cases), in many cases you must plan and devote decades of your life to becoming “one of us.” Some would say that is actually devaluing what it means to be American; that it can simply be bought like a label. If so, then there in fact is no American dream and our beloved meritocracy is actually a delusion.
The central question this symposium interrogates is: how is Asian migration changing? Whether people are coming or going, migration has profound economic, political and cultural impacts in both origin and destination countries. This symposium aims at examining the question of how Asian migration is changing from a comparative, transnationalism and interdisciplinary scholarly perspective as well as an on-the-ground perspective from migrants themselves.
For details on the conference this Friday, click the link above. For the schedule for the conference, click here.
Sponsors include Asian American Studies/College of Letters and Sciences, Division of Humanities, Arts & Cultural Studies/University Outreach and International Programs/ Temporary Migration Cluster/Institute for Social Sciences/AB 540 & Undocumented Student Center/East Asian Studies/East Asian Languages & Cultures/Middle Eastern & South Asia Studies/Cultural Studies Graduate Group/Cross Cultural Center/ Women and Gender Studies/ Asian Pacific American Systemwide Alliance
Tuesday, April 28, 2015
Tomorrow, the House Judiciary Committee, Subcommittee on Immigration and Border Security, holds a hearing entitled “Birthright Citizenship: Is it the Right Policy for America?" For analysis, see this article from The Hill. As the title of the hearing suggests, the hearing's goal seems to be to place into question the 14th Amendment's birthright citizenship provision: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."
Three of the four witnesses agree that birthright citizenship is a "policy" matter, not something guaranteed by the Constitution.
Founding DirectorThe Claremont Institute's Center for Constitutional JurisprudenceDr. Eastman Testimony.pdf (365.2 KBs)
A.W. Walker Centennial Chair in Law, University of Texas at Austin School of LawTestifying in his personal capacityGraglia Testimony.pdf (1017.6 KBs)
Legal Policy AnalystFeere Testimony.pdf (1.2 MBs)
PresidentRichard Cohen Testimony.pdf (398.7 KBs)UPDATE (Apr. 29): Democratic Leader Nancy Pelosi released this statement today as House Republicans on the Judiciary Committee’s Immigration Subcommittee held a hearing on the possibility of eliminating the birthright American citizenship guaranteed under the 14th Amendment:
“Evidently, there is no American principle too sacred not to be surrendered in Republicans’ race to pander to the most radical, anti-immigrant corners of their party. Today’s hearing is an appalling Republican effort to reverse one of our most fundamental constitutional guarantees: people born on American soil are Americans.
“House Republicans that refused to give the American people a vote on comprehensive immigration reform are giving a hearing to one of the most loathsome, xenophobic proposals in recent memory.
“The Republicans’ unconscionable assault on birthright citizenship dishonors our history, betrays our future, and insults millions of proud first-generation American citizens. The American people deserve better than such a vile effort to narrow the definition of citizenship in our country.”KJ
Guest Blogger: Elisha Yang, third-year law student, University of San Francisco:
The EB-5 immigrant investor visa is one of the five employment-based preference categories issued by the United States Citizenship and Immigration Services (USCIS). In 1990, Congress created this EB-5 visa to help stimulate the U.S. economy through job creation and capital investment by foreign investors. Through this program, qualified immigrant investors and their immediate family members are granted lawful permanent resident status in the U.S. when they invest in a commercial enterprise that benefits the U.S. economy that creates at least ten jobs. Those who are approved receive a two-year conditional green card, which can later be adjusted to permanent resident status. Achieving permanent resident status is an essential step to obtaining U.S. citizenship--typically the end goal for an EB-5 immigrant investor.
There are two particular ways to apply for an EB-5 visa. The first option, involving direct investment, requires the investor applicant to individually create, invest in, and manage a business that meets the statutory requirements of the EB-5 visa. For a foreign investor, this option does not often appear attractive because of the onerous conditions required, in addition to the fact that all the responsibilities are placed on the applicant. The second option, frequently identified as the Regional Center Program, allows the investor applicant to passively invest in an approved and designated regional center, which would then be the responsible entity for meeting the requirements of the EB-5 visa. The investment requirement through this program is reduced from $1 million to $500,000. Naturally, a majority of investors choose the latter route.
Since its inception, the EB-5 program has been largely underutilized by city governments, economic development corporations, foundations, and other organizations actively promoting inner city investment. A number of reasons could have been triggering such a result. The Initiative for a Competitive Inner City (ICIC) reasons that the lack of popularity in this international financing mechanism might have been due to the relative obscurity and complexity of the program as well as the negative reputation it developed from a few high profile cases involving fraud. There are currently about 440 EB-5 Regional Centers in the U.S., and we are recently seeing an increasing interest in creating new ones in response to the spike in EB-5 visa applications.
In 2013, over 80 percent of EB-5 visas were issued to Chinese nationals. The program also attracts investors from India, Mexico, South Korea, Canada, and the United Kingdom, among other countries. In fiscal year 2014, the State Department issued 9,228 EB-5 visas. Today, the overwhelming number of I-526 petitions filed by Chinese nationals may result in a retrogression of EB-5 visas. In August 2014, the State Department announced that no more EB-5 visas would be issued for the remainder of the year until the beginning of the 2015 fiscal year. According to the May 15, 2015 Visa Bulletin, the State Department will impose a cut-off date of May 1, 2013 for EB-5 investor visas for persons born in China. This means that no more spots will be available to the Chinese for the rest of the U.S. government’s fiscal year, which ends September 30.
Greenberg Taurig, an international law firm, estimates that the waiting line now for an EB-5 visa will stretch to two to three years. The developing backlog will have a significant impact on applications for investors hoping to enroll their children in U.S. colleges and universities. If they apply too close to the child’s 21st birthday, he or she will age out and will no longer be eligible to enter the U.S. with a dependent visa through an investor parent.
With a high demand for the EB-5 visa, Congress might find it useful to study successful investment-based immigration programs used in other countries. For example, Canada offers a highly competitive investment-based visa program, which provides multiple avenues for foreign investors to pursue. The Federal Entrepreneur Program awards permanent resident status to those who demonstrate an ability to become economically established in Canada by proving two years of suitable business experience and meeting the personal net worth requirement. On the other hand, Canada also offers the Immigrant Investor Program, which is passive in nature but has a much higher net worth and investment requirement. With these two avenues, Canada has been able to gradually increase as well as diversify the foreign investors it attracts.
This September, the Regional Center Program will expire, but this is not the first time. Congress has continuously extended the program periodically. Last month, Congressman Jared Polis of Colorado introduced a bill in the House to permanently extend the program. His bill is called the “American Entrepreneurship and Investment Act of 2015.” Permanence, however, does not yet seem likely, as the program requires amendments and reform to resolve loop holes that create problems subject to much criticism from the public at large. What will likely occur is that another three or five-year extension is granted.
As we have reported on ImmigrationProf, immigration is a big issue in the upcoming United Kingdom elections. The BBC summarizes the various political parties positions in immigration here. The Labor Party, along with others, have moved in a more pro-immigration enforcement stance. The UK Independence Party (official website) currently a distant third in the polls, supports the UK leaving the European Union and its internal labor migration among the EU nations.
Monday, April 27, 2015
Karnes in the News: Private Prison Company Sued For Allegedly Putting Hunger-Striking Moms In Solitary Confinement
Three immigrant women who say they were punished for joining a hunger strike in a Texas family detention center on Thursday sued U.S. Immigration and Customs Enforcement and GEO Group, the private company that operates the facility. The class action lawsuit was filed in federal court against ICE Director Sarah Saldaña and personnel at the Karnes County Residential Center, seeks to prohibit ICE and GEO from putting women and their children in isolation as punishment for protesting, and from threatening to separate mothers from their children. The University of Texas Civil Rights Clinic filed the lawsuit on behalf of the women.
The women were part of a wave of families that crossed the border without proper authorization and have sought asylum in the United States. The vast majority traveled by land from the violence in the Central America countries of El Salvador, Honduras and Guatemala.
Guest Blogger: Erich Snow, second-year law student, University of San Francisco:
At the beginning of any substantive law course law students are typically shown a traditional case where the law and common sense diverge, and the students are allowed to see how the law makes decisions in that field. Consider an old English case for murder, Regina v. Dudley & Stevens, in which Dudley, Stevens, another man called Brooks, and a boy named Richard Parker were stranded on a rowboat after a shipwreck. They had no way of knowing when or even if they would be rescued. The seamen were all starving and dying of thirst. The boy fell into a coma after drinking seawater and was about to die. Dudley and Stevens agreed that the boy would be killed for his flesh and blood, so that the men might live for a bit longer. Parker was killed and eaten and the four men were later rescued. They were rescued after the point at which, had they not eaten Parker’s body, they would have starved. The men were tried for murder, and found guilty, even though anyone who was familiar with the facts would immediately understand the murder to be justified. The reason this is the first case law students read in their Criminal Law casebooks is to show the decision-making process the court follows in that area of law. As a student, I have never accepted “that’s just the way it is” as an adequate explanation. When the law permits arbitrary or clearly wrong results, it is because the law has failed in some respect.
In an immigration case decided in 1953 by the Supreme Court of the United States called Shaughnessy v. United States ex rel. Mezei, the court uses a similar rote application of the law, which leads to a similarly “correct” result as in the Regina case. In the immigration case, Mr Mezei lived in the United States as a foreign citizen from 1923 to 1948. He left for Romania in 1948 to visit his ailing mother. Mr. Mezei was not allowed into Romania, but instead had to remain in Hungary while different visa attempts were made, unsuccessfully, both to enter Romania and to exit Hungary. Eventually, after nineteen months, Mr. Mezei attempted to return to his home in the United States. He was detained at Ellis Island, and the US government cited national security as the reason he was denied entry. Mr Mezei was not imprisoned per se; he was free to travel to any country besides the United States. However, after Mr. Mezei was denied entry into Great Britain, France, Hungary, and over twelve countries in South and Central America, it became clear that his situation was one of indefinite detention: a seemingly-unconstitutional prospect. The problem with this result, however, is that it is the correct one, inasmuch as the existing law was properly applied to Mr. Mezei’s case.
Justice Jackson wrote a unique dissent to the Mezei decision in which he employed striking language as a tool, because legal analysis out of the context of the resulting indefinite detention would have led to the result the majority reached—clearly the wrong result in Justice Jackson’s esteem.
Justice Robert H. Jackson served as the United States chief prosecutor in the Nuremburg trials in 1945 and 1946. Once he returned to the Supreme Court to resume his duties after the military war tribunal, Justice Jackson was far more cautious of procedural safeguards, and was far more likely to rule against government overreaching, having experienced the extreme version of rote application of the law during his time in West Germany prosecuting former Nazi leaders. The Mezei decision was written in 1953, one year before Jackson retired and 6 years after he returned from West Germany. This caution and protectiveness is apparent when Justice Jackson suggests that it would be more beneficial to live in a country which used Soviet substantive law and American procedural law, instead of American substantive law and Soviet procedural law. The failure in this case, he thought, was a failure to consider the arbitrary result of applying substantive law, and failure to apply procedural due process to Mr. Mezei’s entire situation in context.
The dissent contains some beautiful language: “Since we proclaimed him a Samson who might pull down the pillars of our temple, we should not be surprised if peoples less prosperous, less strongly established, and less stable feared to take him off our timorous hands.” Justice Jackson doesn’t hold back his contempt: “Government counsel ingeniously argued that Ellis Island is his ‘refuge’ whence he is free to take leave in any direction except west. That might mean freedom, if only he were an amphibian.” What Justice Jackson’s dissent does not hold is any reference to law or jurisprudence (aside from one mention of Knauff v. Shaughnessy, but rather than following the law from Knauff, Justice Jackson lauds the fact that the court was able to avoid “perpetrating an injustice”). The dissent, which would not be accepted in any law school final exam, is an examination of American ideals. It takes a critical look at the Attorney General’s attempt to thwart what Justice Jackson sees as the best guard against tyranny—procedural due process protections.
He cites no precedent aside from the Constitution itself (and even then he only cites it in a secondary or even tertiary sense). Justice Jackson is saying that the fact that this result is acceptable and legal in the American Legal System means the American Legal System itself is broken in a certain aspect. The first sentence of the dissent is “[f]ortunately it still is startling, in this country, to find a person held indefinitely in executive custody without accusation of crime or judicial trial . . . .” The last two sentences are “[i]t is inconceivable to me that this measure of simple justice and fair dealing would menace the security of this country. No one can make me believe that we are that far gone.” Justice Jackson’s optimism, not misplaced, is that the crack through which Mr. Mezei has fallen is reparable. The system is not terminally broken. He concedes that the law, properly applied, allows for this result. His contention is that the law, properly applied, shouldn’t lead to this result.
Justice Jackson has to resort to compelling penmanship because the primary tools of the Supreme Court, namely, stare decisis, would land him in the same camp as the majority. This is liberating for Jackson, and his tone suggests a caged bird spreading its wings for the first time in a long time, or a master clockmaker dusting off their workbench and tools. This is why Justice Scalia is also compelling to read, and why Lord Mansfield the Scot is so difficult. The danger of only saying what the law is and not what it should be (historically saying what the law is has been the purview of the Supreme Court) is that common sense and the shifting ideals of a dynamic society are often left out. Rather, the jurisprudence is doomed to follow the course of society, but remain decades behind the Zeitgeist at any given time.
Roberto Suro and Marcelo M. Suárez- Orozco highlight this statistic in an op/ed in the New York Times: "Now at least one of every 15 children living in the United States has an unauthorized parent, and nearly all of those children are native-born United States citizens."
In a recent report, the authors assessed more than 50 research studies of the children of unauthorized immigrants conducted by scholars in a variety of fields. This growing body of work shows that fear and uncertainty breed difficulties that manifest themselves in delayed cognitive development, lower educational performance and clinical levels of anxiety.
ImmigrationProf previously posted about "Fresh Off the Boat", the ABC sitcom based on celebrity chef' Eddie Huang's memoir. (Huang has been critical of the depiction of his life in the show.). It is the first network primetime show to feature an Asian-American family in 20 years.
The show is set in 1995 and 11-year-old hip-hop loving Eddie Huang has just moved with his family from Chinatown in Washington D.C. to suburban Orlando. They quickly discover things are very different there. Orlando doesn’t even have a Chinatown—unless you count the Huang house.
In Fresh Off The Boat's season finale, Jessica, the family matriarch, worries over whether or not she and her kids have assimilated too much, a common concern of immigrant parents.. For a further look at the finale on NPR, click here.
According to the report, the new gallery will focus on modern migration to the United States, including migration from Mexico:
"Though the exhibition unabashedly celebrates the idea of arrival and naturalization, visitors expecting a sentimental view of the journey to the United States or a gauzy salute to American immigration policies will find some sharp rebukes. For instance, a panel titled `Feet People' says that until a half century ago, when caps were imposed, Mexican workers had routinely crossed into the United States to fill agricultural, construction and service jobs, because there were no immigration quotas on other independent nations in the Americas. . . . . Further, the panel notes, the Border Patrol `began militarizing the 2,000-mile United States-Mexico border and deporting any unauthorized immigrants' in 1993. `This fortification has pushed men, women and even children, who seek to cross on foot without documentation, even deeper into remote and dangerous terrain,' the panel continues. `They cross deserts and mountain ranges on foot and swim contaminated irrigation ditches. They crawl through sewer pipes and tunnels. To find work and reunite with family members, hundreds risk their lives every week to reach the United States.'”
David Noriega on BuzzFeed.com reports that thousands of undocumented immigrants who gained work permits as part of the Obama administration's Deferred Action for Childhood Arrivals program are losing their ability to work legally as the federal government struggles to renew their authorizations on time.
A couple of teenagers are playing a game in a culvert next to the U.S. border fence with Mexico. One of them is apprehended by a U.S. border guard; the other one is shot and killed as he hides behind a pillar. On the Mexican side. The kid's family tries to seek damages in U.S. court. On April 26, the U.S. Court of Appeals for the Fifth Circuit, in a full en banc ruling, put an end to that quest. Click here for a photo of the young man who died and more on the story.
The court decided that under the control of Verdugo the kid didn't have any meaningful connections to the United States - he was not part of "the People" and thus couldn't invoke the Fourth Amendment. The majority also ruled that the Fourth Amendment was the sole challenge even open to the family.
Constitutional rights are not interchangeable. When a litigant asserts multiple constitutional claims arising from the same conduct, we must “identify the specific constitutional right allegedly infringed . . . .” . . . . If it becomes apparent that “a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.’ ” Albright v. Oliver, 510 U.S. 266, 273, 114 S. Ct. 807, 813 (1994) (citations and internal quotation marks and footnote omitted).
The ruling becomes more interesting in Judge Prado's concurrence. Prado takes on the interplay between Verdugo, Boumediene and Fifth Amendment rights. Was Boumediene limited to an analysis of the Suspension Clause and the grant of habeas corpus? Prado argues that Boumediene is the shining new avatar of constitutional extraterritorality. Hernandez suffered the ultimate penalty of arbitrary official conduct, covered by the Fifth Amendment. Prado also makes the crucial linkage between Justice Kennedy's "functional" approach in Verdugo and that of Boumediene.
Boumediene, and its functionality-focused reading of the Court’s previous extraterritoriality decisions, is instructive here. Confronted with a novel extraterritoriality question, we must apply the only appropriate analytical framework the Court has given us: the Boumediene factors. Adapted to the present context, three objective factors and practical concerns are relevant to our extraterritoriality determination: (1) the citizenship and status of the claimant, (2) the nature of the location where the constitutional violation occurred, and (3) the practical obstacles inherent in enforcing the claimed right. . . . As the panel majority’s original opinion explained, the Boumediene factors, coupled with an analysis of the operation, text, and history of the Fifth Amendment, militate in favor of the extraterritorial application of substantive due process protections on these facts. See Hernández v. United States, 757 F.3d 249, 259–63, 267–72 (5th Cir. 2014), vacated in part and reinstated in part on reh’g en banc, --- F.3d --- (5th Cir. 2015).
What does Hernandez mean for immigration litigation? At some point, the Supreme Court is going to have to address the situation of an alien who has lived in the United States for many years and then is illegally removed from the United States in an exclusion proceeding that violated due process. Under the control of Kiyemba, only the executive branch can authorize his return. Under the competing controls of Verdugo and Boumediene, citing a holy trinity of voluntary meaningful connections, Suspension Clause violations and Fifth Circuit due process violations, a federal court should be able to declare his or her release after full habeas review.