Wednesday, January 20, 2016
US Undocumented Population Drops Below 11 Million in 2014, with Continued Declines in the Mexican Undocumented Population
• The total US undocumented population continued to decline in 2014, and has fallen by more than a million since 2008;
• The undocumented population in the majority of US states declined after 2008; however, eleven states reached their maximum population in 2014, including Texas;
• With the exception of Alabama and possibly Georgia, restrictive state immigration laws in 2010-2011 had little impact on undocumented population trends;
• The Mexican-born undocumented population was about 600,000 smaller in 2014 than it was in 2010;
• About 250,000 fewer undocumented immigrants from Mexico lived in California in 2014 compared to 2010; and
• From 1980 to 2014, the legally resident population from Mexico grew faster than the Mexican undocumented population.
Here is the executive summary of the report:
Undocumented immigration has been a significant political issue in recent years, and is likely to remain so throughout and beyond the presidential election year of 2016. One reason for the high and sustained level of interest in undocumented immigration is the widespread belief that the trend in the undocumented population is ever upward. This paper shows that this belief is mistaken and that, in fact, the undocumented population has been decreasing for more than a half a decade. Other findings of the paper that should inform the immigration debate are the growing naturalized citizen populations in almost every US state and the fact that, since 1980, the legally resident foreign-born population from Mexico has grown faster than the undocumented population from Mexico.
Abstract: Article II, Section 1 of the U.S. Constitution provides that no one but a “natural born Citizen” is eligible to be President of the United States. Modern conventional wisdom generally holds that the phrase “natural born Citizen” includes anyone made a U.S. citizen at birth by U.S. statutes or the Constitution. But that conventional wisdom is, on its face, open to doubt. If anyone born a U.S. citizen is eligible, the word “natural” in the eligibility clause is superfluous. Further, in general in eighteenth-century legal language, natural meant the opposite of “provided by statute” (hence “natural law” and “natural rights”). And plausible arguments can be made for a narrow meaning of “natural born” on the basis of either traditional English common law or eighteenth-century continental public law. To this point, modern scholarship has provided no comprehensive response to these objections.
Nonetheless, as matter of the Constitution's original meaning, the conventional wisdom is correct. This article defends a broad view of the original meaning of the eligibility clause on the basis of eighteenth-century English parliamentary practice. The key to understanding the eligibility clause is Congress’ power over naturalization, which in turn is best understood by examining parliament’s naturalization power. By the mid-eighteenth-century, Parliament had power to define by statute who would be recognized as a “natural born subject” – a power that, along with others, was called naturalization. In a succession of Acts, Parliament extended this designation (which originally only applied to those born in England) to various categories of people born outside the country. In adopting the phrase “natural born” from English law, the American framers likely understood that they were using a phrase without a fixed definition and subject to legislative alteration through the naturalization power. That conclusion in turn provides sound support for the modern view that Congress can create categories of “natural born” citizens by statute.
Immprof Pratheepan (Deep) Gulasekaram has a take on the US v. TX litigation over at the American Constitution Society blog.
Gulasekaram "contextualiz[es] the political and legal dynamics that have culminated in this landmark case, highlighting the role both partisanship and federalism have played in landing Texas before the high Court." He notes that post-9/11 immigration policy has been characterized by insurmountable party polarization. That, in turn, has had two big consequences:
First, states have stepped more fully into the legislative void, enacting an unprecedented volume of both restrictionist and integrationist policies. Second, the federal executive branch has become much more conspicuous and robust in fashioning immigration policy through both enforcement calibration and litigation. The Texas case implicates both trends, and their partisan roots, simultaneously.
Interestingly, Gulasekaram sees the Texas litigation as the "flipside" of SCOTUS' 2012 ruling on Arizona v. United States.
Whereas in 2012, it was a Democratic federal executive using the judicial forum to shut down immigration enforcement regulations from Republican states, in 2016 it is a coalition of Republican states suing to derail the enforcement policy of that same Democratic President. Unlike Arizona, however, it remains to be seen whether the state of Texas can actually invoke the federal court’s power to adjudicate the legality of the President’s program.
The problem, he writes, may well be whether the states have standing to litigate at all. But, depending on how that issue plays out, "the current Texas case could offer states a new avenue to disrupt federal administrative policies and indirectly influence immigration enforcement."
He concludes: "we might see federal courts increasingly used as the battlegrounds" for the highly partisan issue of immigration policy.
Tuesday, January 19, 2016
Not surprisingly, the Supreme Court granted the petition for certiorari in United States v. Texas, and the nation may receive the final word on the lawfulness of the 2014 program expanding deferred action for the undocumented parents of parents of lawful permanent residents and U.S. citizen children. The case raises important, complex, and significant legal issues with national ramifications. Although the immigration issues are critically important, the more general issues implicated by the case, such as the relative power of the Legislative and Executive Branches in the enforcement of the law, go well beyond immigration.
The case is rooted in many years of controversy over immigration and immigration reform. The legal issues are technical and have been, and will be, much-debated over the coming months. Many critics have vociferously challenged the Obama administration’s executive action is attempting to arrogate power bestowed by the Constitution on Congress. My firm sense is that the constitutional dialogue is a healthy one about the boundaries on congressional and executive power on immigration.
To fully understand United States v. Texas, one also must appreciate that it is a product of at least a decade of national debate over immigration. There are many actors in long dialogue on immigration reform.
Over at least the last decade, Congress has debated various forms of immigration reform legislation. An enforcement-oriented bill passed by the House of Representatives led to memorable public protests in cities across the country in 2006. To this point in time, no legislation has been passed and frustration exists among many Americans, immigrants, and political leaders.
In this vein, a potent political movement led by undocumented college students had demanded more narrowly focused reform of the immigration laws. The DREAM Act (Development, Relief, and Education for Alien Minors) has been proposed regularly in Congress, with support from, among others, conservative Senator Orrin Hatch (R-Utah). Although garnering substantial support, it has not attracted sufficient support to be passed. Most iterations of the DREAM Act would allow undocumented persons who came here as children to regularize their immigration status.
Congress has debated many bills that would have reformed the immigration laws. In the most recent attempt, the Senate in 2013 passed a bipartisan comprehensive immigration reform bill that would have provided a path to legalization for undocumented immigrants, reformed legal immigration provisions, and bolstered immigration enforcement. Unfortunately, the bill never was sent to the full House of Representatives.
The failure of Congress to enact immigration reform had impacts as state and local governments in recent years have enacted immigration-related laws. Many of the laws were designed to facilitate immigration enforcement and implicated questions of federalism and federal supremacy. The most well-known law of this type is Arizona’s S.B. 1070, which the Supreme Court struck down as preempted by federal immigration law in large part in 2012 in Arizona v. United States.
Other states, such as California, have sought to better integrate immigrant residents into the greater community. Laws extending driver’s license eligibility to undocumented immigrants, and allowing them to pay resident tuition at public universities, exemplify those kinds of efforts.
The deferred action program has attracted considerable amount of attention. However, the Obama administration has made removals and immigration enforcement high priorities. Through its Secure Communities and later Priority Enforcement Program, the administration targeted immigrants convicted of crimes for removal. The hope was to establish a strong enforcement record and ultimately to convince Congress to enact comprehensive immigration reform. To that end, the Obama administration has set annual deportation records a few years in a row and regularly removes hundreds of thousands of immigrants a year. It also has taken enforcement-oriented positions, including detention of families and recently announced raids, attempting to deter Central Americans fleeing violence from coming to the United States.
The Obama administration implemented the Deferred Action for Childhood Arrivals Program in 2012. In November 2014, the administration announced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). A federal court in South Texas enjoined the implementation of the program and the U.S. Court of Appeals for the Fifth Circuit affirmed the injunction in November. The Supreme Court now will review the case.
The Supreme Court
The Supreme Court has had regularly heard immigration cases for a number of years, often addressing cases in which the Executive Branch sought to remove long term lawful permanent residents for criminal offenses. Last Term, the Court, for example, decided Mellouli v. Lynch and rejected the effort to remove an immigrant for a minor drug paraphernalia conviction. In 2013, the Court rejected a removal order in Moncrieffe v. Holder based on a conviction involving the possession of a small amount of marijuana for personal use.
The Court’s major immigration decision in recent years is Arizona v. United States. The Court made it clear that federal law was supreme when it comes to immigration and invalidated several provisions of the Arizona law that it found intruded on that power. The decision surprised some Court observers who predicted that the Roberts Court might uphold the Arizona law in its entirety.
United States v. Texas
In United States v. Texas, the technical legal questions are as follows: (1) do the states have standing to challenged DAPA; (2) whether the Secretary of Homeland Security’s guidance known as DAPA seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action is arbitrary and capricious or otherwise not in accordance with law; and (3) whether the guidance was subject to the Administrative Procedure Act’s notice-and-comment procedures. In the background of the briefs is a claim under Article II of the Constitution that imposes a duty on the President unlike that he “shall take Care that the Laws be faithfully executed.” The Supreme Court specifically stated that the constitutional question was before it.
The politically charged nature of the issue brought amici briefs on the cert petition from many different quarters, including a bipartisan Former Members of Congress, Major Cities Chiefs Association, 184 Members of the U.S. House of Representatives and 34 Members of the U.S, Senate, the state of Washington and other states, former federal Immigration and Homeland Security Officials, Mayors of New York and other cities.
The outcome of United States v. Texas will be debated. What does seem clear is that the nation is engaging in a robust national debate about immigration law and policy. We will see how that latest chapter unfolds before the Supreme Court.
In November, the ImmigrationProf blog ran an on-line symposium of commentary on the Fifth Circuit's opinion in Texas v. United States. Now that the Supreme Court has granted cert in the case, you might want to recheck out the commentary.
Minutes ago, the Supreme Court not surprisingly granted cert not surprisingly in United States v. Texas. According to Lyle Denniston on SCOTUSBlog, the case will be set for argument in April and likely decided before the end of the Term in June. In February, SCOTUSBlog will be posting an on-line symposium on the case. Stay tuned!
Immigration Article of the Day: The Prodigal Illegal: Christian Love and Immigration Reform by Victor C. Romero
The Prodigal Illegal: Christian Love and Immigration Reform by Victor C. Romero, Pennsylvania State University, Penn State Law January 11, 2016 Denver University Law Review, Vol. 92, No. 917, 2015 Penn State Law Research Paper No. 2016-1
Abstract: Despite the impasse around immigration reform, most everyone believes the United States’ immigration system is broken. And most agree that the key issue is what to do with the eleven million or so undocumented persons currently residing in the United States. As a Christian immigration law teacher, I have been interested in the debate among the churches as to what such reform should look like. In this Article, I use Professor Jeffrie Murphy’s conception of agapic love as a lens through which to examine reform proposals. I then evaluate the two positions Christian churches have seemed to embrace — permanent legal status on the one hand, full citizenship on the other — from both a gospel and legal perspective. To aid my analysis from the Christian perspective, I turn to Dr. Timothy Keller’s interpretation of the Parable of the Prodigal Son; from the legal perspective, I examine the lived experiences of those subject to our current deportation laws. I argue that a thick conception of agapic, neighborly love requires embracing a pathway to citizenship as the only available reform option.
This Article explores what agapic love might look like in the context of formulating immigration policy regarding the undocumented. Despite what appear to be the strict borders of law that create categories of immigrant status and belonging, the Christian tradition of sacrificial love suggests a willingness to promote equality and reject subordination — in a sense, to set captives free.
Today there are over 11 million undocumented immigrants in the United States. There are lots of debates going around about it. With it, the rise of different rumors and myths are also surfacing. Here are some of the most common ones you should stop talking about.
#1: Undocumented immigrants are taking American jobs.
FACTS: Basically, these illegal aliens just do the jobs that U.S. people just don’t want. These jobs include farming, gardening, janitorial works, chambermaids and nannies’ jobs, and other household domestics. They are apparently not the exact jobs that Americans want to take. The jobs that the immigrants usually take when they come to the U.S. belong to the minimum wage level.
#2: Undocumented immigrants do not pay taxes
FACTS: Most immigrants pay exactly the same taxes that the natives do. Most of them are working for bosses that do not know they’re illegal, or perhaps suspect they are but do not bother to dig deeper. Thus, an average boss of an undocumented illegal immigrant could deduct all the taxes from his entire bunch of employees-- be it legal or not.
#3: Undocumented immigrants do not learn English
FACTs: Most educational systems in the world are now paying attention to the value of learning English. If the immigrant is a grandpa who comes from a developing country and has not reached the better educational system, then that would be a probable exception.
MYTH #4: Undocumented immigrants don't contribute to the U.S. economy; they just come here to get on welfare.
FACTS: The myth is indeed just a myth. Undocumented immigrants actually have a huge contribution to the U.S. economy. They are working hard and performing significant jobs which are essential to the growth of the US economy. They’re paying the same taxes and are consuming goods—be it groceries, cars, etc.—and are buying the services that could eventually benefit the entire citizenry.
#5: Undocumented immigrants should legally apply to visit or work in the US.
FACTS: This is really ideal. However, it’s close to impossible. The current system for employment-based immigrants only allows around 5,000 low-skill Green Cards annually for the whole U.S.
#6: Undocumented immigrants are the reason for the disproportionate crime rate
FACTS: Lots of studies have demonstrated that the main cause of crime in the U.S. isn’t the rise of immigrants, despite their legal status.
#7: Undocumented immigrants are abusing the health care system.
FACTS: The rule is that undocumented immigrants aren’t entitled to any form of taxpayer funded health care. However, they can enjoy emergency medical treatment.
#8: Undocumented immigrants must be deported from United States.
FACTS: This is an unlikely solution. The entire population of undocumented immigrants (around 11 million) is equal to the whole populations of Oregon, Washington, and Idaho combined. It would be extremely hard for the government to locate and deport all these people.
#9: This problem would be eradicated if the government just takes the move to finish the fence along the southern border.
FACTS: For each 15-foot fence, there’s a 16- foot ladder or some shovel which can dig beneath it. Also, 40% of the undocumented immigrants in the U.S. have come in the legal way. They have initially hired undocumented immigrants to help them out. They just overstayed their visas. This fence idea could help, but it doesn’t solve the case entirely.
#10: The immigration reforms proposed in the U.S. Congress are just a form of amnesty
FACTS: Amnesty means “forgiveness with no penalty”. All of the proposals for immigration reform need payment/ fine of around $1000, learning English, and paying each back tax.
#11: Americans do not support immigration reform.
FACTS: There was a survey conducted that shows 60-70% approval from the Americans.
#12: Denying the driver's licenses to undocumented immigrants could solve the problem.
FACTS: That wouldn’t be possible either. The main reason these undocumented immigrants are flocking in the US is to work. Nearly all workers in the US need a car to work.
#13: If only each employer is required to take verification measures for the social security number of each worker, this problem won’t have worsened.
FACTS: Yes, perhaps. This compulsory verification system for the social security does sound like a great idea. However, this can only happen if there’s an earned legalization program that’s placed in every area all at once.
#14: A law the same with that of Arizona would help in erasing this issue.
FACTS: The law in Arizona can be considered an overreaction and could be best compared to how the US overreacted to immigrants in the past. This law can be vague and could invite discrimination against these immigrants.
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Monday, January 18, 2016
CNN reports that later today the UK parliament will debate whether to bar Donald Trump from the country because of his call to ban the admission of all Muslims to the United States. A petition to bar Trump from the UK because of his "hate speech" garnered more than 500,00 signatures.
UPDATE (Jan. 19): Parliament held the debate on January 18. According to press accounts, many members condemned Trump's statements and positions but Parliament was divided whether to ban him from the country. According to the BBC, Conservative Home Secretary Theresa May has banned more than 200 people since 2010. One of them is U.S. blogger Pamela Geller who was banned in 2013 as a result of her anti-Muslim remarks and propaganda.
Hero Norway, Bloomberg Business reports, "is the leader of a burgeoning Scandinavian industry that charges the Norwegian and Swedish governments a fixed fee—$31 to $75 per person per night in Norway—to house and feed refugees." The company provides short-term dormitories where refugees can stay after crossing a border and awaiting security screening, a second tier area where they can wait for immigration screening, and longer-term facilities for those awaiting resettlement.
In return, Hero Norway expects 2015 revenues of "$63 million, with profits of 3.5 percent" (though there's some debate the profit margin may be higher). Their business is second only to a Swiss company, ORS Services, which in 2014 earned $99 million in profits caring for refugees in Switzerland, Austria, and Germany.
The Adolfsens have a background in hospitality and experience running everything from preschools to nursing homes, hotels (mostly Best Westerns), apartment buildings, cruise lines, and ski resorts.
Bloomberg asks the tough questions that plague everyone thinking about for-profit immigration detention: "In their monetization of the refugee crisis, will the Adolfsens provide superior, more efficient havens, or will they cut corners and skimp on services to improve profits? And does their bottom-line approach threaten a depth of caring that transcends hard cash?" There are no easy answers.
Hero Norway is providing a much needed service, and it is managing to do so profitably. Going forward, "the prospects for Hero Norway’s continued success are high. Neither Sweden nor Norway has plans to stanch the flow of newcomers, and the Swedish government has said it will spend up to 30 percent of its 2016 foreign aid budget on resettling refugees."
As the nation remembers Dr. Martin Luther King Jr, it is worth noting that, as the times in which we live frequently remind us, there clearly is an intersection between immigration and civil rights in the 21st century. The fight for rights by the DREAMers, as well as immigrant rights advocates across the nation, is reminiscent of the political movement for civil rights a generation ago. Besides the commonality of political action and mass movements, the anti-caste principle -- and that all people are created equal -- animated the two movements.
In 2010, Seth Hoy wrote this thoughtful article entitled "Dr. Martin Luther King, Jr., and the Intersection of Immigration and Civil Rights" on Immigration Impact. Former ImmigrationProf blogger Jennifer Chacón also has a thoughtful law review article on Dr. King, civil rights, and immigration rights.
Sunday, January 17, 2016
Hip hop artist and actor Mos Def, now known as Yasilin Bey, has been ordered to leave South Africa after violating the country's immigration laws.
Bey, his wife, his mother, and his four children, arrived in the country on tourist visas. They overstayed.
Bey was caught after producing a "world passport" when trying to leave the country.
Saturday, January 16, 2016
Republic Presidential frontrunner has raised the question. Immigration and constitutional law professors have debated the issue. Now a court has been presented with the question whether Senator Ted Cruz is eligible to be President of the United States.may decide
The Wall Street Journal first ran with the story about a Houston lawyer who has filed a complaint Thursday in U.S. District Court in Texas asking for a judgment concerning whether Mr. Cruz is eligible to be president. Cruz was born in Calgary, Alberta to a U.S. mother. The Constitution requires that the president and vice president be “natural-born” citizens.
"Plaintiff prays for a Declaratory Judgment holding that Defendant Candidate Ted Cruz is not constitutionally eligible to be elected President and/or Vice President of the United States. No monetary damages are involved and no claim for recovery of attorneys’ fees or costs’ made. Plaintiff prays for accelerated expedited decision . . . ."
In the Republican debate earlier this week, Donald Trump that Cruz seek a declaration from a court on the question whether he satisfies the constitutional citizenship requirement to be President.
Friday, January 15, 2016
Immigration Article of the Day: The Mediterranean Migration: A Clash of Titans' Obligations? by Barbara Miltner
The Mediterranean Migration: A Clash of Titans' Obligations? by Barbara Miltner, UC Davis School of Law December 2015 The Brown Journal of World Affairs, Fall/Winter 2015, Vol. XXII, Issue I UC Davis Legal Studies Research Paper No. 476
Abstract: Nearly 670,000 migrants crossed the Mediterranean to reach European shores in the first ten months of 2015. The influx has been characterized as the greatest migration crisis since World War II. The associated death toll is equally alarming. In April alone, over 800 migrants died in the largest maritime refugee disaster on record, provoking calls for an immediate response. Following an emergency summit, EU leaders reacted by launching new criminal anti-smuggling measures and an intensive maritime surveillance program in the Mediterranean, among other measures. The response has been criticized for its emphasis on militarized border control strategies at the expense of humanitarian protection measures in relation to maritime rescue and asylum screening. Certainly, such an enforcement-oriented approach to border controls is not new, but it is legally problematic. This article examines the latest European response to the Mediterranean migration crisis from an international legal standpoint. It considers aspects of the proposal with regard to the roles and conduct of individual member states, as well as those of the EU border control agency Frontex. The article examines recent jurisprudential developments, both within and beyond the European sphere, to highlight new and emerging legal limitations on state actors at sea.
The Obama administration has experienced difficulties formulating a coherent approach to the issues raised by Central Americans fleeing widespread violence in their homelands. It recently has come under fire for the announcement of raids designed to arrest and deport Central Americans who are subject to removal orders.
As part of an effort to address concerns with the numbers of Central Americans coming to the United States, Secretary of State John Kerry earlier this week announced that the United States will further expand the U.S. Refugee Admissions Program to help vulnerable families and individuals from El Salvador, Guatemala, and Honduras, offering a safe and legal alternative to the dangerous and irregular journey many are currently taking in the hands of human smugglers. The U.S. "will collaborate with UNHCR and its NGO partners to identify persons in need of refugee protection – people targeted by criminal gangs, human rights defenders who have been targeted, and others. We also continue to explore additional options, including for those who may be at imminent risk of harm. Expanding resettlement opportunities is a key part of our broader response to the situation in the Northern Triangle, and the needs of refugees around the world."
The announcement was vague on the details and there are not many in the various press reports about the announcement
Expanded refugee admissions processing would seem to only help reduce the flow of migrants from Central America if increased numbers of refugees were admitted by the United States. In fiscal year 2015, the President only proposed the admission of 4000 refugees from all of Latin America. If the numbers are not increased to improve th elikelihood of obtaining refugee status, persons fearing for their safety may simply take the risk of journeying to the United States and seek entry without authorization.
Expanded refugee processing would not address the migrants from Central American who have already come to the United States. Other forms of relief., such as Temporary Protected Status, might allow these migrants to have refuge here.
Senator Ted Cruz's eligibility for President came up in the Republican debate and he sparred a bit on the issue with Donald Trump. Many observers thought that Cruz got the better of the exchange. Click here for details.
Generally, immigration was not a big issue in the debate, although Senator Marco Rubio and Ted Cruz jabbed at each other a bit on the issue.
Thursday, January 14, 2016
This Migration Information Spotlight shows that the number of Asian immigrants in the United States has increased exponentially over the last 50 years, and Asia is now the second-largest region of birth of U.S. immigrants. The growth of this population dates to the abolition in 1965 of national-origin quotas that barred immigration from Asia. This article delves into key data on Asian immigrants, from settlement and employment patterns to immigration pathways, and more.