Monday, October 3, 2016
Report of the DHS Advisory Committee on Family Residential Centers (and here). An advisory committee, formed in response to the controversy over family immigrant detention, prepared this report, with recommendations. This passage from the beginning o fth ereport is telling:
"The detention of migrant children and families by the U.S. government has been controversial since its inception. Child and family detention has been the subject of a number of federal lawsuits – most notably, the Flores litigation (currently captioned Flores v. Lynch), filed in 1985 and still in active litigation. Since its inception, many reports by government agencies (including the Government Accountability Office (GAO) and various subunits of DHS), the United Nations High Commissioner for Refugees (UNHCR), the American Bar Association (ABA), and advocacy organizations have made similar and negative findings. In this report, the ACFRC adds our voice to those prior critiques. We offer numerous recommendations to improve detention management and conditions. But these should be understood in light of our basic conclusion and first recommendation, which is repeated and discussed in depth in Part I, below:
Recommendation 1-1: DHS’s immigration enforcement practices should operationalize the presumption that detention is generally neither appropriate nor necessary for families – and that detention or the separation of families for purposes of immigration enforcement or management, or detention is never in the best interest of children. DHS should discontinue the general use of family detention, reserving it for rare cases when necessary following an individualized assessment of the need to detain because of danger or flight risk that cannot be mitigated by conditions of release. ..."
Immigration Article of the Day: Crimmigration and the Void for Vagueness Doctrine, by Jennifer Lee Koh
Since the Supreme Court’s 2015 decision in Johnson v. United States, a federal sentencing decision holding that the residual clause of the Armed Career Criminal Act was void for vagueness, the vagueness doctrine has quietly and quickly exploded in the legal landscape governing the immigration consequences of crime. On September 29, 2016, the Supreme Court granted certiorari in Lynch v. Dimaya, an immigration case in which the Court will resolve a circuit split addressing whether part of the federal definition of a “crime of violence”—a classification that triggers nearly automatic deportation and immigration detention – is unconstitutionally vague.
This Article argues in favor of applying the void vagueness doctrine to various statutory provisions that lie at the crossroads of immigration and criminal law, including the provision before the Court in Dimaya. The vision of vagueness articulated in this Article complements the Supreme Court’s recent jurisprudence with respect to the categorical approach, the methodology for assessing the immigration consequences of crime, and is consistent the Court’s decision in Johnson as well as the values animating the vagueness doctrine. Those twin values — providing reasonable notice, and preventing arbitrary or discriminatory law enforcement practices — apply with exceptional force in immigration, an area of law in which the liberty stakes of the crime-based removal grounds are high, notice is critical, and the risk of arbitrariness and discrimination by government actors at multiple levels is acute.
The denial of the motion is no real surprise in light of the fact that the Court currently only has eight Justices. Amy Howe comments on the order on SCOTUSBlog.
The Supreme Court currently is slated to hear three immigration cases this Term. Each of the cases have the potential to be major immigration decisions. Each case raises constitutional as well as statutory issues.
Two of the cases come from the Ninth Circuit. The U.S. Government, which was unsuccessful in each of the cases, sought review in the Supreme Court.
Stay tuned for information about the cases. SCOTUSBlog is a source for briefs, oral argument previews and recaps, and opinion analysis for Supreme Court cases.
The Court starts the Term with only eight Justices, which complicates matters.
Here are the three immigration cases, all that raise important issues of immigration law.
Issue(s): Whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act's provisions governing an immigrant's removal from the United States, is unconstitutionally vague. In a rare move, the Ninth Circuit, in an opinion by Judge Stephen Reinhardt, stuck down a statute including the reference "crime of violence" as unconstitutionally vague. The Board of Immigration Appeals had found that burglary was a "crime of violence" for removal purposes. Dimaya was a lawful permanent resident from the Philippines who had lived in the United States since 1992.
Lynch v. Morales-Santana Argument November 9
Issue(s): (1) Whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children through 8 U.S.C. 1401 and 1409 (1958) violates the Fifth Amendment’s guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so. The Second Circuit, in an opinion by Judge Loheir, found that the gender distinction for citizenship was unconstitutional.
The Supreme Court has been seriously divided on the issue of gender distinctions in the citizenship laws in previous cases (See, e.g., Nguyen v. INS (2001); Miller v. Albright (1998). This case allows the Court to reconsider the issue, with a decision made more difficult with only eight Justices.
Issue(s): (1) Whether aliens seeking admission to the United States who are subject to mandatory detention under 8 U.S.C. § 1225(b) must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months; (2) whether criminal or terrorist aliens who are subject to mandatory detention under Section 1226(c) must be afforded bond hearings, with the possibility of release, if detention lasts six months; and (3) whether, in bond hearings for aliens detained for six months under Sections 1225(b), 1226(c), or 1226(a), the alien is entitled to release unless the government demonstrates by clear and convincing evidence that the alien is a flight risk or a danger to the community, whether the length of the alien’s detention must be weighed in favor of release, and whether new bond hearings must be afforded automatically every six months.
The Ninth Circuit, in an opinion by Judge Kim McLane Wardlaw, affirmed the district court’s permanent injunction insofar as it required automatic bond hearings and required Immigration Judges to consider alternatives to detention. The panel also held that IJs must consider the length of detention and provide bond hearings every six months for class members detained longer than twelve months, but rejected the class’s request for additional procedural requirements.
Immigration Article of the Day: A Massive Loss of Habitat: New Drivers for Migration by Saskia Sassen
A Massive Loss of Habitat: New Drivers for Migration by Saskia Sassen Columbia University - Department of Sociology 2016 Sassen, Saskia. 2016. 'A Massive Loss of Habitat: New Drivers for Migration.' Sociology of Development 2(2):204–33
Abstract: The paper examines three emergent migration flows, each with specific features that can be described as extreme. The effort organizing the paper is to understand conditions at places of origin that lead people to risk their lives in dangerous trips to escape those places of origin. As is by now known, these migrants are not the poorest of the poor in their places of origins. The rapid surge in these flows combined with the conditions they leave behind raise a question that organizes much of the analysis: Are the categories we use to understand and describe migrations – that is, the notion of people in search of a better life, who leave behind a family and home that they want to support from afar and possibly return to – enough to capture the specificity of these emergent flows. My answer is: not quite. One big difference from the past is that part of the story is a massive loss of habitat due to a variety of extreme patterns, from massive land-grabs to poisoning of land and water due to mining. The paper examines how the development models implemented over the last 30 and more years have enabled some of these negative conditions. Further, another major factor reducing the habitat of these migrants is a proliferation of asymmetric wars. Both sets of factors reduce the habitat for more people. One outcome of this combination of elements is these new migrations.
Sunday, October 2, 2016
This Immigrant of the Day, now a naturalized U.S. citizen, has been in the news this past week.
In May 2016, Machado became a U.S. citizen. She has spoken out against Donald Trump, who, during her year as Miss Universe, she claims called her "Miss Piggy" because she gained weight and "Miss Housekeeping" because of her Hispanic background.Trump said that "[s]he was the winner and you know, she gained a massive amount of weight and it was a real problem. We had a real problem."
Donald Trump has intimated that Clinton somehow inappropriately helped Machado become a U.S. citizen.
Truthout reports that protests followed a police shooting in the San Diego, California, suburb of El Cajon. Police shot and killed an unarmed African-American man earlier last week after his sister called 911 to report her brother was having a mental health emergency. Eyewitnesses in El Cajon said 38-year-old Alfred Olango was holding his hands up when he was tased by one police officer and then fired upon five times by another officer.
Olango was a 38-year-old father of two and a Ugandan refugee who moved to the San Diego area 20 years ago. On Wednesday, police confirmed Alfred Olango did not have a gun. The object he pointed at police was a three-inch-long silver e-cigarette.
Click here for more on this story.
Saturday, October 1, 2016
The New York Times reports on the release of a videotaped deposition of Republican Presidential candidate Donald Trump in a piece of civil litigation. A Washington judge made public the videotaped deposition. The video shows Mr. Trump answered questions in his suit against Geoffrey Zakarian, a celebrity chef who backed out of Mr. Trump’s new hotel development at the Old Post Office Pavilion in Washington. Trump is also suing another chef, José Andrés, who backed out of another restaurant. The chefs pulled out after Trump made incendiary comments last year about Mexican immigrants as he announced his presidential campaign. Trump said — “They’re bringing drugs. They’re bringing crime. They’re rapists.” He is suing the companies associated with Zakarian and Mr. Andrés for breach of contract.
In the deposition, Mr. Trump sat for about 100 minutes, often with his arms folded and sometimes swaying in his chair. He answered questions about the contracts with the chefs and about his remarks on Mexicans, telling Zakarian’s lawyer that he had been misinterpreted by the news media, which he called “very dishonest.” In the course of the deposition, He explained that his raising the topic of illegal immigration “led to my nomination in a major party in the country.”
I watched part of the deposition Trump. In what I saw, he appeared calm and cordial and not much like his campaign persona.
Friday, September 30, 2016
It is an anniversary of sorts today. On September 30, 1996, the U.S. Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), dramatically changing U.S. immigration policy and setting in motion a massive expansion of the detention and deportation system by more tightly linking the criminal justice system to the federal immigration system. These laws not only criminalized immigrants, but created programs like 287g, establishing agreements to give local law enforcement agencies federal immigration authority. The results have been nothing less than dramatic for immigrants and their communities.
Joan Walsh writes for the Nation:
It’s no accident that three of Trump’s victims—[Alicia] Machado, the Khan family and Judge Gonzalo Curiel—are not white. Hostility to minorities is the animating energy of the campaign. But the candidate’s derangement over Machado surpasses his prior breakdowns—for a good reason. A woman he once controlled, quite literally—making her exercise in front of the media, to prove she was taking his demands to lose weight seriously—is defying him publicly. Another woman, Hillary Clinton, refused to slink into obscurity after her husband humiliated her (last year Trump shared a fan’s tweet asking “If Hillary Clinton can’t satisfy her husband what makes her think she can satisfy America?”) and is currently leading him in the race for the presidency.
Thursday, September 29, 2016
Of possible interest for immigration scholars:
The University of Maryland Law School’s Journal of Race, Religion, Gender, and Class is seeking an immediate submission for its current volume. The journal publishes on a wide range of topics related to race, religion, gender, and class. If interested, please e-mail Robin Cleland at clelandr[at]umaryland[dot]edu. The journal aims to provide a one-day turnaround time with offers on submissions.
The Supreme Court today granted certiorari in Lynch v. Dimaya. The question presented in that case is whether 18 U.S.C. 16(b), as incorporated into the Immigration and Nationality Act's provisions governing an immigrant's removal from the United States, is unconstitutionally vague. The Ninth Circuit, in an opinion by Stephen Reinhardt (joined by judge Kim McLane Wardlaw with a dissent by Judge Consuelo Callahan), held that it was. The court specifically held that a statutory reference to a "crime of violence" was unconstitutionally vague. ImmigrationProf blogger Jennifer Koh previously blogged an analysis of the Ninth Circuit ruling. In addition, here is a summary of the ruling.
The Black Alliance for Just Immigration, along with New York University Law School’s Immigrant Rights Clinic, released a trailblazing report on the experience of Black immigrants in the U.S. The State of Black Immigrants sheds light on the unique challenges facing the nearly 3.5 million immigrants in the U.S. from Africa, the Caribbean, Afro-Latino countries, and elsewhere, due in large part to their race.
Part I of the report provides recently updated demographic data on immigration status, country of origin, geographic location within the U.S., educational attainment, household income, labor force participation, and eligibility for forms of immigration relief for Black immigrants.
Part II focuses on the impact of mass criminalization, providing newly released data on detention and deportation rates for Black immigrants.
Key findings of the report include:
- The number of undocumented Black immigrants in the U.S. increased by nearly 50% from 389,000 in 2000 to 602,000 in 2013.
- Nearly 1 in 5 Black immigrants live below the poverty line.
- Black immigrants have the highest unemployment rates amongst all immigrant groups.
- More than one out of every five non-citizens facing deportation on criminal grounds before the Executive Office of Immigration Review is Black.
- Black immigrants are more likely to be detained for criminal convictions than the immigrant population overall.
- Black immigrants in removal proceedings for a criminal conviction often have lived in the U.S. for a long time and established strong community ties; many are apprehended and placed in deportation proceedings long after the triggering criminal conviction occurred.
- Black immigrants are much more likely than nationals from other regions to be deported due to a criminal conviction.
Adolfo Flores on Buzzfeed reports that California yesterday became the first state to require that undocumented immigrants be told of their right to an attorney before being interviewed by federal immigration authorities while in custody.
The Transparent Review of Unjust Transfers and Holds Act (TRUTH) Act, parts of which goes into effect in 2017, was signed by Gov. Jerry Brown. The law, also requires that police departments give an immigrants’ attorney or advocate the same information they shared with US Immigration and Customs Enforcement (ICE). A public forum must also be held every year to disclose local law enforcement’s role in federal immigration policy. Immigrants will also be advised that they don’t have to speak with ICE agents.
“Behind closed doors, ICE has inserted itself into the fragile relationship between local police and immigrant communities by requesting local police take on the role of federal immigration agents,” said California Assemblyman Rob Bonta, who authored the Truth Act. “With today’s action, California leads the nation with sensible immigration policies that protect the rights of immigrants and shine a light on flawed federal priorities.” Click here to see Assemblyman Bonta's full press release. For the response of the National Day Laborer Organizing Network (NDLON) to the new law, click here.
In addition, Governor Brown also signed into law SB 1139, authored by Sen. Ricardo Lara, D-Bell Gardens, which will prevent a person from being denied into medical school solely based on his or her immigration status. Known as the Medical DREAMER Opportunity Act, it will also ensure that undocumented students, pursuing medical professions, have the ability to compete for scholarships and access the state’s loan forgiveness programs regardless of citizenship status.
While immigrant rights organizations praised Brown for signing these two bills, they also criticized him for his decision to veto a bill known as the Dignity not Detention Act, also sponsored by Lara. The bill, SB 1289, would have made it illegal for a city, county, or a local law enforcement agency from entering into a contract with a private corporation to detain immigrants in civil immigration proceedings for profit.
"Donald Trump's immigration reform is a raging version of the status quo. His vacillations between toughness and softness—designed to reap the political payoff of the moment—are not unique. They are, however, central to his business model and deal-making strategy in which he places himself and his corporate interests before the public good. Trump is not unlike other politicians, including President Obama, who've walked the political tightrope of immigration. It was Obama—once called the "deporter-in-chief"—who ramped up the most devastating deportation machine in U.S history, while at the same time executing deferred action on deportation for undocumented youth who migrated as children and attempting to do so for undocumented parents of U.S. citizens.
At this stage it seems clear that softening on immigration will be limited to Trump's sporadic pandering. Instead, the centripetal force of his racist populism and his inability to retract or apologize will always lead him into murkier, more racist, and unconstitutional waters. As November 8 lurches into view, those of us hoping for a new page to be turned on US immigration policies, have many reasons to be worried."
“They Were Scattered Everywhere, All Drowning.” How a Lampedusa Optician Became a Hero of the Migrant Crisis
A boat carrying nearly 600 migrants capsizes in the Mediterranean in May 2016. 562 were rescued and 5 died. Photo: Italian Navy
Emma Jane Kirby interviews an optician who dramatically rescued many migrants on the high seas. She is the author of the book, The Optician of Lampedusa, which describes itself as "PERHAPS THE MOST DEVASTATING FIRST-PERSON ACCOUNT OF THE REFUGEE CRISIS YOU'LL EVER READ."
Here is an abstract of the book:
The only optician on the island of Lampedusa in the Mediterranean is an ordinary man in his fifties, who used to be indifferent to the fate of the thousands of refugees landing on the coast of the Italian island. One day in the fall of 2013, the unimaginable scale of the tragedy became clear to him, and it changed him forever: as he was out boating with some friends, he encountered hundreds of men, women and children drowning in the aftermath of a shipwreck. The Optician and his seven friends managed to save 47 people (his boat was designed to hold ten people). Hundreds died. This is a poignant and unforgettable account about the awakening of conscience: more than that, it brings home the reality of an ongoing refugee crisis that has resulted in one of the most massive migrations in human history.
More than 360 people died in the disaster off the coast of Lampedusa on October 3, 2013. The original interview with Carmine Menna, the basis for this book, can be heard here.
Wednesday, September 28, 2016
Shock Peace: The Search for Freedom by Ciecie Tuyet Nguyen
With the anniversary of the start of the Vietnam War occurring on November 1, we will take the time to stop and remember those who served and lost their lives for our country. But do we ever stop to think of those who were impacted on the other side of the war? Shock Peace: The Search for Freedom by author and refugee CieCie Tuyet Nguyen explores the war from a different perspective: that of a survivor in the fall of Saigon who unflinchingly recounts the horrors of life after the Vietnam War.
A fictional account based on historical facts and the personal experiences of the author, Shock Peace follows young Trinh’s journey as she searches for freedom. A Vietnamese teenager, Trinh has lived through the dark days that led to the fall of Saigon in 1975 and three years under the new regime. The book follows Trinh as she witnesses human rights and freedom stripped brutally away from herself, her family and her countrymen. After struggling with poverty, starvation, desperation, and control, the yearning for freedom propels Trinh and her family to make a daring move - an attempt to escape by boat and face the threat of attack by pirates. At the cost of freedom, 500,000 of her countrymen had perished, most by drowning as they tried to flee. Will Trinh's family be able to find the freedom they seek?
A moving statement on the strength of the human heart, themes recounted in Shock Peace: The Search for Freedom include:
- The true account of what had happened to South Vietnam during the first decade after the fall of Saigon
- The life stories of Saigon's refugees and their tragedies in Vietnam's darkest period, when peace, prosperity and reunification were supposed to emerge from the ashes.
- How human rights, peace and freedom are the best gifts your country has given you.
- While unexpected circumstances might change one’s life for the worse, with the resilience to survive, one might be able to get back to where they once were.
- That cruelty should be exposed not to bring about revenge or to lead to war, but to bring empathy and change.
Immigration Article of the Day: Jennifer Chacón, A New Hope: Bringing Justice Back into Removal Proceedings
Former ImmigrationProf blogger Jennifer Chacón has this thoughtful reply ("A New Hope: Bringing Justice Back into Removal Proceedings") to Jason Cade's provocative article, Return of the JRAD, on NYU Law Review Online. My response to Cade's article can be found here.
Here is an abstract of Professor Chacón's article:
In his article, Return of the JRAD, Professor Jason Cade makes a strong and viable case that the Department of Homeland Security (DHS) can and should take into account nonstatutory Judicial Recommendations Against Deportation (JRADs) and other criminal justice signals of diminished criminal culpability when deciding whether or not to charge a noncitizen with deportability. Professor Cade’s proposal is a good one. The overall effects of his proposal will be modest. It can neither eliminate racial disparities in the criminal justice system and deportations nor end capricious distinctions between similarly situated criminal defendants in removal proceedings. On the other hand, it has no notable downsides and some significant potential upsides. Part I explains why exercising discretion along the lines that Cade proposes is firmly within DHS’s discretion and why such modest and rational exercises of discretion are unlikely to spark political backlash. Part II elaborates upon the potential benefits of Cade’s proposal. First, by encouraging criminal sentencing judges to issue nonstatutory JRADs, the Cade proposal promises to provide DHS with useful information otherwise unavailable at the charging stage, thus increasing charging fairness. At the same time, his proposal would make a positive change in the way that at least some criminal sentencing judges think about immigration consequences in criminal sentencing. Ultimately, it might even change the way that we talk, think, and write about the nexus of immigration and criminal law—better exposing the common failings and the interconnections of these systems to scholars and practitioners other than those who routinely work at their intersection.
World leaders convened in New York last week for a pair of summits focused on multilateral responses to the growing challenge of refugee crises and unmanaged migration flows. Even before the summits convened by the United Nations and a day later by the Obama administration were concluded, assessments of their outcomes were underway. In a new commentary, Migration Policy Institute (MPI) President Emeritus Demetrios Papademetriou and Policy Analyst Susan Fratzke weigh the results. "While score cards for these types of events are difficult to keep, it is clear that the summits offered reasons for both disappointment and hope," they write. On the plus side of the ledger, the two summits offered evidence of the high priority being placed on these issues by national leaders. The meetings also may have set the stage for the next, and possibly more substantive, conversation initiated when UN Member States agreed to forge a pair of compacts on better management of migration flows and coordination of equitable responses to refugee crises by 2018. The U.S.-led summit and an affiliated CEO roundtable also produced results, with more than $1.1 billion in pledged assistance and investments directed at refugees and migrants, and commitments to double refugee places. On the downside, the authors note that the commitments—including on responsibility sharing—fell short of the concrete outcomes that architects of the UN summit and advocates had envisioned, and that it remains to be seen whether the $4.5 billion in pledged government financial commitments to humanitarian agencies represents new money or a repackaging of older promises. What does seem clear, they write, is that there will be a tug of war between the multilateralism on parade at the summits and the national sovereignty inherent in the ways in which governments view issues of migration and international protection. I invite you to read this thought-provoking commentary.