Monday, June 8, 2015
From the Bookshelves: Marjorie S. Zatz and Nancy Rodriguez, Dreams and Nightmares: Immigration Policy, Youth and Families
Marjorie S. Zatz, a dedicated reader of the ImmigrationProf blog, announces the publication of her new book Dreams and Nightmares: Immigration Policy, Youth and Families, co-authored with Nancy Rodriguez. The book takes a critical look at the challenges and dilemmas of immigration policy and practice in the absence of comprehensive immigration reform. The experiences of children and youth provide a prism through which the interwoven dynamics and consequences of immigration policy become apparent.
Using a unique sociolegal perspective, Zatz and Rodriguez examine the mechanisms by which immigration policies and practices mitigate or exacerbate harm to vulnerable youth. They pay particular attention to prosecutorial discretion, assessing its potential and limitations for resolving issues involving parental detention and deportation, unaccompanied minors, and Dreamers who came to the United States as young children.
The book demonstrates how these policies and practices offer a means of prioritizing immigration enforcement in ways that alleviate harm to children, and why they remain controversial and vulnerable to political challenges.
The University of California Press is offering a 30% discount code: 15E8493
Immigration Article of the Day: Realizing the Promise of Padilla Through a Law School/Public Defender Collaboration by Stacy Taeuberion
Realizing the Promise of Padilla Through a Law School/Public Defender Collaboration by Stacy Taeuber University of Wisconsin Law School May 28, 2015 Wisconsin Law Review, p. 339, 2015 Univ. of Wisconsin Legal Studies Research Paper No. 1352
Abstract: The Supreme Court's 2010 decision in Padilla v. Kentucky thrust the issue of the immigration consequences of crime into the legal limelight. The Court held that the Sixth Amendment's guarantee of effective assistance of counsel requires defense counsel to provide their noncitizen clients with specific advice regarding immigration consequences. Deportation, the Court found, is a uniquely severe penalty that is "intimately related to the criminal process," and that, for many noncitizens, is the most important potential consequence of the criminal process. Suddenly, defense attorneys found themselves deputized as the first line of defense against deportation for their noncitizen clients. By "plea bargain[ing] creatively," the Padilla Court explained, counsel may be able "to craft a conviction and sentence that reduce the likelihood of deportation." Widely hailed as a landmark decision - a "Gideon for immigrants" - Padilla's promise has proved elusive in practice, particularly in the realm of indigent defense. Implementing Padilla has proven a daunting challenge for defender offices across the country given the complexity of the law, the lack of lawyers with the appropriate expertise, and the already stretched financial and personnel resources of indigent defense offices.
Sunday, June 7, 2015
Kenley Jansen (born September 30, 1987) is the closer for for the Los Angeles Dodgers of Major League Baseball. Jansen was born in Willemstad, Curaçao, which for you non-geography buffs is an island off the coast of Venezuela. Jansen's career MLB statistics are here.
Jansen has had some health issues over the last few years but appears to be fine now. Last night, he earned the save and combined with Clayton Kershaw for a one-hit 2-0 shutout of the St. Louis Cardinals.
Jansen relies almost exclusively on a cut fastball in the 92–97 mph range, but it occasionally tops out at 100 mph. His other main pitch is a slider in the low 80s. Jansen has recorded extremely high strikeout rates, garnering 14.6 strikeouts per 9 innings through the 2012 season. This is the second-highest total in history among pitchers who have thrown at least 140 innings.
I have been trying to ignore the news reports but there are just too many to ignore. As previously reported on ImmigrationProf, Ann Coulter continues to tour, talk about her immigration book, and make national controversy. Her latest-- the United States should halt all immigration, including legal immigration, for ten years. In Adios, America,
"Ann Coulter is back, more fearless than ever. In Adios, America she touches the third rail in American politics, attacking the immigration issue head-on and flying in the face of La Raza, the Democrats, a media determined to cover up immigrants' crimes, churches that get paid by the government for their `charity,' and greedy Republican businessmen and campaign consultants—all of whom are profiting handsomely from mass immigration that's tearing the country apart. Applying her trademark biting humor to the disaster that is U.S. immigration policy, Coulter proves that immigration is the most important issue facing America today."
Crisis in the Dominican Republic: Hundreds of Thousands on Precipice of Losing Everything, Yet No One Seems to Care?
Ediberto Roman on the Huffington Post analyzes the crisis for many persons of Haitian decent living in the Dominican Republic. The Dominican government has publicly stated that mass deportations of its citizens of Haitian descent will commence on or about June 17, 2015. It has massed a fleet of buses to deport these Dominicans to a land largely foreign to these people. The Dominican military, for its part, is ramping up efforts at collective deportations, sweeping up anyone who "looks" Haitian, and dumping them in Haiti. No world leader and few media outlets are focusing on this human rights tragedy.
In 2013, the Dominican Constitutional Court, citing the country's 2010 constitution, retroactively stripped the citizenship of people born after 1929 to parents without Dominican ancestry, declaring that they were residing in the country illegally or with temporary permits. The court effectively stripped the citizenship to its citizens of Haitian descent. "In other words, despite the language of its own constitution, human rights norms, and decades of reasonable practice, in one stroke of a pen, the Dominican government actually held that generations of Dominican citizens were stateless under a logic that makes even our own tragic racially motivated decisions of Dred Scott (the 1800s decision holding African-Americans incapable of becoming citizens) and Korematsu (the WWII decision upholding the internment U.S. citizens of Japanese descent) seem logical."
Saturday, June 6, 2015
Photo via twitter
Among other things, Mehta writes:
Would there be similar outrage if an American law firm contracted away its human resources functions and stopped hiring additional HR personnel? Or if an entrepreneur wanted to sell a newly designed stroller with interesting gizmos in the US market, but arranged to have the manufacturing done in China?
Mehta is no doubt correct. But I'm not sure that he's drawn the right analogy.
Disney eliminated its IT force. It hired another company to provide IT services. And that company staffed the positions, positions previously held by (presumably) competent U.S. workers, with foreign workers. And, for that reason, it should be no surprise that this touches a nerve. We're used to the outsourcing of manufacturing. But this sort of transaction is news to the American public.
Let's not kid ourselves. It's Disney. And that's important because of the company's high profile, its place in American culture, and the fact that it is so admired for its innovative and effective management.
And, as I've said before, Disney has a history when it comes to creative use of foreign labor.
In today's weekly address, President Obama recognized June as Immigrant Heritage Month. He said it was an opportunity to "share our American stories." No, really, he wants you to actually share your stories by posting them to a special site on whitehouse.gov.
The president also took the moment to address the need for "fixing our broken immigration system." He chastised Congress for not voting on S. 744 and said: "In the meantime, I'm going to keep doing everything I can to make our immigration system more just and more fair."
Photo via Wikipedia
Today, jockey Victor Espinoza rode thoroughbred American Pharaoh to victory, winning the Triple Crown. After already placing first in the Kentucky Derby and the Preakness Stakes, tonight the dynamic duo won the Belmont Stakes as well. This is the first time since 1978 that this level of success has been achieved in the United States.
Victor Espinoza was born in Mexico, where he lived with 11 siblings on a farm outside of Mexico City. Some 25 years ago, Espinoza drove a bus in Mexico City, trying to finance a career as a jockey.
Espinoza first saw success at Mexico City's Hippodromo de las Americas in 1992. The next year, he immigrated to United States and became a leading apprentice rider in California.
Espinoza has said:
“Work hard and treat your career as a job. Always remember, it’s easy to get to the top, it’s very difficult to stay there. When you’re doing good, you need to work harder. I would say, look forward, never look back. Everybody has a right to have fun, but your job has to come first.”
Congratulations on your success today!
Friday, June 5, 2015
Photo Eric E. Johnson
One segment offers an interactive timeline of events that have "laid a foundation for the first- and second-generation children in classrooms today and those who will follow."
In terms of law, the timeline starts with the Naturalization Act of 1906 and runs through 2002's No Child Left Behind.
Obviously, more contributions could be cited. As we covered here last month, it seems like the timeline could be expanded to 1885 with Mary Tape's lawsuit against the San Francisco School District. Nonetheless, it's an interesting and engaging collection that may be of interest to readers.
To learn more about this historic social movement, see Alvvaro Huerta and Alfonso Morales. “The Formation of a Grassroots Movement: The Association of Latin American Gardeners of Los Angeles Challenges City Hall.” Aztlán: A Journal of Chicano Studies 39 (2): 65–93 (2014).
The Economist has an eye-catching headline: The future's Asian. The short article points out that Mexican immigration is on the decline while immigration from China and India is on the rise, noting "these new migrants are even younger, and well-educated."
Check out their chart:
Thursday, June 4, 2015
In this New America Media article, David Bacon looks at how a majority of California farmworkers are struggling to survive. More than a third of the farmworkers population makes less than the minimum wage, while the other third earns the exact minimum. Many suffer from various health issues as the result of years of backbreaking work. Undocumented farm laborers find movement back and forth across the militarized border far more dangerous and expensive than before, and many are stuck even when picking season has ended. In a three parts series, Bacon gives his analysis of the situation and provides two moving portraits of struggling Triqui farmworkers.
Looking Beyond Asylum: New MPI Report Outlines Building Blocks to Implement a More Comprehensive Humanitarian Protection Strategy
With more than half of all registered refugees displaced for at least five years and forced displacement at levels unseen since World War II, there is growing recognition that the global protection system is failing both those it was designed to protect and the communities that offer refuge.
Responsibility for providing protection is falling extremely unevenly on countries and communities closest to the regions of crisis. This reality undermines overall public support for the refugee system in countries of first asylum. But publics in wealthy countries in Europe and elsewhere that seemingly have “gold-standard” protection systems are also experiencing increasing "protection fatigue."
A new report from the Migration Policy Institute’s Transatlantic Council on Migration discusses the growing strains on the protection system before proposing a series of goals that national governments and international actors should pursue to facilitate the development of an innovative, comprehensive protection system that better meets the needs of today's refugees and host communities alike.
In Beyond Asylum: Rethinking Protection Policies to Meet Sharply Escalating Needs, Transatlantic Council Convenor and MPI President Emeritus Demetrios G. Papademetriou urges policymakers to respond proactively to instability and the inevitable displacement before it becomes unmanageable—as seen with the rising flows crossing the Mediterranean in search of refuge in Europe, in Southeast Asia's Bay of Bengal and Andaman Sea, and elsewhere.
Investment in sustainable livelihoods and better living conditions for both refugees and host communities in the crisis region; wider legal channels for protection and alternative ways for refugees to submit claims (such as external processing); and the development of fairer, more effective asylum adjudication, reception and return policies are all necessary elements, Papademetriou suggests.
“The scale of current protection demands has made the need for policy innovations clear, even to those outside the humanitarian community, and has created an ideal opportunity to experiment,” Papademetriou writes.
Among the recommendations, the report urges policymakers to move beyond the traditional care-and-maintenance model of protection by finding ways to empower refugees to gain access to secure living situations and the means to support themselves as quickly as possible. Policymakers “need to consider refugees not just as victims in need of shelter, but social and economic actors with a need for individual fulfillment and opportunities, and the potential to contribute to their host communities through their skills, international networks, access to unique streams of aid and resources, and purchase of local goods and services,” Papademetriou writes.
The Council Statement is the final report in a seven-part series resulting from the Transatlantic Council meeting “Refitting the Global Protection System to Meet the Challenges of Modern Crises.” Earlier reports in the series, which examines the strains on the global protection system and proposes innovative policy responses, as well as describes Turkey’s handling of major Syrian inflows and U.S. treatment of rising migration of unaccompanied minors from Central America, can be read here.
Immigration Article of the Day: British Imperialism, the Indian Independence Movement, and the Racial Eligibility Provisions of the Naturalization Act: United States v. Thind Revisited by Doug Coulson
British Imperialism, the Indian Independence Movement, and the Racial Eligibility Provisions of the Naturalization Act: United States v. Thind Revisited by Doug Coulson, Carnegie Mellon University - Department of English May 25, 2015 Georgetown Journal of Law & Modern Critical Race Perspectives 7 (2015): 1-42
Abstract: This article reexamines the United States Supreme Court’s opinion in United States v. Thind, which held that high caste Hindus were not “white persons” and were therefore racially ineligible for naturalized citizenship, through a rhetorical history of the briefs, judicial opinions, National Archives and Records Administration documents, and British intelligence documents related to the case. As the Court’s final statement on the racial eligibility provisions of the early Naturalization Act, Thind has been the subject of significant scholarly commentary regarding race and citizenship in the United States and heralded as a crucial Asian American civil rights case.
The article begins by analyzing the case’s overruling of the majority of lower courts which had found high caste Hindus to be racially eligible for naturalization, two of which the Court had expressly approved of only three months earlier in Ozawa v. United States, a reversal of the Court’s own position not addressed in Thind or by prior studies of the case. In an effort to account for this reversal, the article considers Thind’s political activities in furtherance of Indian independence and the effort of British and American intelligence officials to oppose his naturalization on the basis of his political activities, the parties’ competing citations of British authorities on the significance of India’s caste system for the racial classification of Asian Indians, and how Justice Sutherland’s opinion both responds to and evades the arguments in the case in a manner that suggests a political decision. The article concludes by considering the rhetorical dimensions of race, citizenship, and law.
In "Executive Action on Immigration and the Judicial Artifice of `Lawful Presence'” on Dorf on Law, Anil Kalhan critically analyzes the Fifth Circuit's refusal last week to issue a stay of the preliminary injunction entered by Judge Andrew Hanan in Texas v. United States. That injunction, of course, put President Obama's expanded deferred action program on indefinite hold.
Professor Kalhan begins:
"At least rhetorically, the language of the opinion, written by U.S. Circuit Judge Jerry E. Smith and joined by U.S. Circuit Judge Jennifer Walker Elrod, is more measured than Judge Hanen’s cloddish, 123-page screed—although concededly, that is a rather low hurdle to clear. Aside from a long footnote endorsing a patronizing argument for why the increasingly discredited term “illegal alien” should not be understood as “an opprobrious epithet,” Judge Smith’s opinion contains little of the gratuitous anti-immigration rhetoric found in Judge Hanen’s opinion, which I have analyzed both here at Dorf on Law and in a forthcoming article in the UCLA Law Review Discourse.
Substantively, however, the opinion suffers from precisely the same basic flaws."
Click the link above to read Professor Kalhan's critique of the majority's analysis.
Wednesday, June 3, 2015
In October, Disney laid off some 250 information technology workers from its Lake Buena Vista, Florida, offices. As Julia Preston of the New York Times reported today, those workers have been replaced with foreign nationals, specifically H1B visa-holders.
Photo Eric E. Johnson
The NYT article takes Disney to task for hiring foreign nationals to do exactly the same work as the Americans who previously held the positions. This is despite the fact that – as immprofs know – H1B visas are intended to not adversely affect the wages and working conditions of Americans.
Disney, perhaps unsurprisingly, didn't hire the H1B workers directly. Rather, the company made the decision to outsource its IT needs. And the company to which it outsourced filled the open positions with H1B workers.
Why would Disney do this? Undoubtedly because it's cheaper. Ronil Hira, a professor of public policy at Howard University, has estimated the wage savings at between 25 and 49 percent.
Saving money with foreign labor is not new for Disney. As I wrote in a law review article (The Wonderful World of Disney Visas), Disney invented and lobbied for the Q visa to do exactly this. And it has artfully used the J visa for cost savings as well.
I can update the numbers from that paper: Q visas currently save Disney about $19.1 million a year, and J-visa workers save Disney an additional $16 million annually.
The outsourcing of IT jobs reported in today's news is another example of how malleable the visa system can be in the hands of a powerful player.
Ruthann Robson on the Constitutional Law Professors blog reports that a New York appellate court has held that a recipient of relief under the Deferred Action for Childhood Arrivals (DACA) program can be licensed to practice of law in New York. See In the Matter of Application of Cesar Adrian Vargas Download Vargas
In 2014, the California Supreme Court in In re Garcia ruled that an undocumented immigrant was eligible to practice law in California. Later in 2014, the Florida Supreme Court ruled that a DACA recipient was not eligible to be licensed to practice law in Florida.
After considerable litigation, DACA recipients are currently eligible for driver's licenses.
Timothy Dugdale, an occasional blogger on ImmigrationProf, has his own case before the U.S. Court of Appeals of the District of Columbia Circuit. Here is his post about the case:
On Monday, the appeal of my challenge to an expedited removal was docketed in DC Circuit court - Timothy Dugdale v. Loretta Lynch 15-5146. I am now in the belly of the beast. As a pro se litigant I suppose I should be shivering my timbers. This is the second most powerful court in the country after all. Strangely, though, I'm feeling pretty sanguine. The Zen of pro se litigation is to focus not on yourself but the job at hand, arguing about questions of law and constitutional issues. In district court, Judge Christopher Cooper claimed jurisdiction on all three of the prongs of judicial review under 1252(e)(2). In addition, he punted with sympathy on the constitutionality of the expedited
removal statute itself but implicitly agreed that under Chada I had standing to challenge the law that was used to deport me from the United States.
The last time any judges considered this question was in AILA v. Reno (2000), almost ancient history when you consider all that has gone on in the world and in American jurisprudence. With that in mind, I am pouring over the Supreme Court briefs for Kiyemba and Boumediene. These two cases, although not immigration law cases, nonetheless square off on the contested terrain between
the executive and judicial branches. The DC Circuit in its seminal 2009 Kiyemba ruling invoked Mezei and Knauff as controls over the exclusion and admission of aliens with no significant ties to the United States per Verdugo. On the other hand, the Supreme's ruling in Boumediene addresses not just the extraterritoriality of the constitution but sets benchmarks for the adequacy of habeas substitutes, which of course is what the expedited removal statute is.
The big issues, then, are the Suspension Clause and the Due Process Clause. The DC Circuit in its AILA v. Reno ruling focused mainly on the Article III standing of the AILA to bring a suit. Since then, there have been no expedited removal cases in that court. Ah but when you dig deeper into the closet, you find Rafeedie v. INS. More on this in my next post.
Professional basketball in the United States has become increasing international in scope, with many more players from nations other than the U.S. playing in the NBA today than a decade ago. Not surprisingly, both teams in the finals have some foreign born players:
1. Matthew Dellavedova, Australia
2. Kyrie Irving, Australia
3. Timofey Mozgov, Russia
4. Tristan Thompson, Canada
5. Anderson Varejao, Brazil
1. Leandro Barbosa, Brazil
2. Andrew Bogut, Australia
3. Festus Ezeli, Nigeria
4. Ognjen Kuzmic, Bosnia and Herzegovina
Immigration Article of the Day: Giving Credit Where Credit is Due: What We Can Learn from the Banking and Credit Habits of Undocumented Immigrants by Nathalie Martin
Giving Credit Where Credit is Due: What We Can Learn from the Banking and Credit Habits of Undocumented Immigrants by Nathalie Martin, University of New Mexico - School of Law, UNM School of Law Research Paper 2015-08
Abstract: Undocumented immigrants currently make up more than 5% of the U.S. labor force and 7% of school-age children. Numbering over eleven million, undocumented immigrants unquestionably comprise a significant segment of the population, yet most lack financial security and stability on multiple fronts. In addition to the everyday risk of deportation, many risk being taken advantage of on the basis of their immigration status, in both employment and debtor-creditor relationships. While some of these financial conditions are well-chronicled, this Article describes the first empirical study of the debtor-credit relationships of undocumented immigrants. Through live interviews, this Article recounts the general financial impediments undocumented immigrants face in trying to work, pay taxes, raise children, participate in the U.S. economy, and simply survive. Among other topics, this Article explores whether undocumented immigrants use traditional financial institutions or more informal ones, and whether predatory lenders such as payday and title lenders have made inroads into immigrant communities. It further explores our study participants’ perception of and attitudes toward various forms of credit, with the hope of using this sample to gain more generalized insights into the credit uses and attitudes of undocumented Americans as a whole in today’s consumer credit economy. Through our study, we were able to uncover a few of the grim realities of living in the financial shadows, with only precarious means of financial support, distanced from social safety networks at home, at legal disadvantage, and without a place at any policy-related table. Indeed, we conclude that the financial condition of many undocumented immigrants is far more precarious than one might imagine, as shown through our data that 74% of the persons interviewed would not be able to cover a $100 emergency if it came up. We also discovered fear of and disdain for credit among many undocumented persons, demonstrating sensible ideas about credit, which many of us in the mainstream population could learn from.