Thursday, August 6, 2015
From United We Dream:
The top 10 polling GOP candidates (by FOX News’ scientific method) are set to participate in the first debate toward the 2016 election tonight in Cleveland.
In an effort to encourage sobriety (if that’s your thing) during the various reported watch party games during tonight’s debate, United We Dream’s communications manager Mario Carrillo has the following suggestion:
“It’s simple. To stay sober, your phrase of the night should be“I support a pathway to citizenship” as your drinking trigger, as currently none of the candidates participating in the main debate have voiced support for citizenship for undocumented immigrants.”
Butif your goal is inebriation,
“Then using GOP classics like, “illegal alien,” “secure the border,” “fence,” “triple fence”, “higher fence”, “border wall”, “drones”, “crocodile infested moat”, “kindly asked to leave” (a Jeb Bush favorite right out of Mitt Romney’s playbook), or any variation of “deport” will surely do the trick.”
“Though the majority of Americans continue looking at Washington to end the congressional gridlock and create a pathway towards citizenship for undocumented immigrants, tonight’s debate will likely feature candidates either attempting to out-Trump each other or present a kinder, gentler face to what has become the GOP policy on immigration: “get out.”
“Immigrant youth will hold the next President accountable to protecting our families from deportation, taking a stance against the criminalization of communities of color, and fighting for legislation that reflects the dignity of our immigrants and provides a path towards citizenship.”
Federal District Court Finds California Department of Corrections and Rehabilitation Violated Title VII by Barring U.S. Citizen from Employment for Previous Use of Invalid SSN
The Employment Law Center has won an important victory in federal district court. A federal court in the Northern District of California ruled that the California Department of Corrections and Rehabilitation (“CDCR”) and the California State Personnel Board (“SPB”) violated federal civil rights law by denying employment to Victor Guerrero, a naturalized U.S. citizen, because he had used an invalid Social Security number (“SSN”) to work while undocumented.
Mr. Guerrero, a 15-year resident of Stockton, California, had applied to work as a correctional officer for CDCR in 2011 and 2013. Both times he was disqualified from the job for the same reason – truthfully disclosing during the application process prior use of an invalid SSN.
In a detailed 33-page ruling, U.S. District Judge William Alsup stated, “There is no indication in the record that Guerrero’s misuse of an SSN under his circumstances ‘pose[d] an unacceptable level of risk’ for CDCR.” The Court “d[id] not find anything in the record that would indicate that Guerrero embodied an unqualified or even a less qualified -- applicant.” As a result, the Court concluded that “CDCR’s effectively single-issue withhold based on [SSN misuse] amounted to an “arbitrary . . . barrier to employment” in violation of Title VII.”
This case could affect a large number of previously-undocumented immigrants who worked on invalid Social Security Numbers but later were able to regularize their immigration status. Reliance on use of such SSNs could well have disparate impacts on Latina/os and other national origin minorities.
A phenomenon among the U.S. immigrant population has give rise to the term, the “Immigrant Advantage”. Sociologists coined this term after noticing that immigrants tend to have higher life expectancies, are often associated with better health, and generally pass more markers of “success,” as compared to native-born Americans.
On the life expectancy and health front, researchers in a study on the Hispanic immigrant population do caution that the numbers may contain biases. These biases result from the relative youth of the Latino immigrant community compared to the native-born population. Moreover, studies do not adjust for immigrants who return home for health or other reasons. A BBC News article notes other influential factors, include the lower smoking rate, better diet, better physical heath due to their more physically demanding jobs, and better emotional health due to a more tight-knit family and community.
The positive effects of the tighter community spill over to promoting greater ambition amongst immigrants. A New York Times article profiling a Muslim immigrant demonstrates this aspect of the phenomenon. In 2011, Mr. Raisuddin Bhuiyan was working at a Dallas minimart when he was shot and severely wounded in a post-9/11 revenge attack. In Mr. Bhuiyan’s words, the native-born, (presumably white) working class background of his attacker prevented him from the “same shot at the American dream” as his own background from “a loving and sober family, pressure to strive and virtuous habits.” Mr. Bhuiyan’s familial background implanted in him the ambition to achieve his greatest potential. Although so far from his native home and family, the immigrant community in the U.S. cared for Mr. Bhuiyan during his recovery from the attack. From family and community support, Mr. Bhuiyan rose from a minimart worker and severely wounded victim of a hate crime, to earning a six-figure salary in the I.T. industry. His attacker, on the other hand, may have been reared in the U.S., but lacking Mr. Bhuiyan’s support system, found himself facing severe charges for his actions.
Among other advantages, the author of the NY Times article, citing a Census Bureau study, finds that naturalized U.S. citizens generally earn higher educational degrees, have higher marriage rates, lower divorce rates, and more likely to rise out of poverty.
Vicky Yau will soon begin her second year of law school at UC Davis School of Law.
Here is the problem in a nutshell:
"If you get a speeding ticket from a traffic cop, you have a right to fight it. And you don’t have to pay the fine until the case is resolved in court. But things are different if the Department of Homeland Security seeks to have you deported. In theory, you have the right to fight your deportation, potentially all the way to the Supreme Court. But the DHS might deport you before you’ve exhausted your appeals."
Normally, a noncitizen petitioning for review of final order of removal can be deported even while the appeal remains pending. The only way to avoid this risk is to persuade the Court of Appeals to issue a stay of removal. In most circuits, a deportation can be carried out even after a petitioner files a motion for a stay of removal, until the court actually issues a stay. This happened in June to a Guatemalan mother and her daughter who were deported to Guatemala, where they feared violence. Their lawyer filed a motion for a stay, but before the government even responded to the motion, DHS simply flew them to Guatemala City. In an extraordinary step, the chief judge for the Third Circuit ordered the government to find the mother and daughter in Guatemala and “return them to the United States as quickly as possible.”
Deportations pending the appeal of a case is a "danger . . . built into the system." In the U.S. Court of Appeals for the Ninth Circuit, a stay of removal pending an appeal is automatically ordered as soon as a petitioner asks for one, and it remains in place until the government responds and the court has the opportunity to rule on the merits of the request. Unfortunately, even when courts have the chance to make a decision, the system is prone to life-threatening errors. To decide whether to grant a stay of removal, a court must decide whether the immigrant is likely to eventually win her appeal. But the research of the authors of this op/ed found that in about half of the appeals that were ultimately successful, the court initially guessed wrong and denied the stay, leaving an immigrant at risk of an errant deportation.
The Court of Appeals for the Third Circuit yesterday issued a new standing order under which petitioners in immigration cases will receive an immediate stay of removal as soon as the clerk of the court receives a motion for a stay. The new order states in relevant part that:
"In order to ensure that petitioners in immigration matters are not deported before the Court has an opportunity to act on a motion for stay of removal ... the Court adopts a policy of granting a temporary administrative stay pending disposition of the motion for a stay ..."
Immigration Article of the Day: The Importance of Nonphysical Harm: Psychological Harm and Violations of Economic, Social and Cultural Rights in U.S. Asylum Law by Sabrineh Ardalan and Palmer Lawrence
The Importance of Nonphysical Harm: Psychological Harm and Violations of Economic, Social and Cultural Rights in U.S. Asylum Law by Sabrineh Ardalan (Harvard Law School) and Palmer Lawrence (Immigrant Justice Corps), September 10, 2014 Immigration Briefings, Issue 14-09, September 2014
Abstract: This article highlights the importance of considering non-physical harm in developing and presenting asylum cases, drawing on recent examples from federal court cases, decisions by the Board of Immigration Appeals, U.S. Citizenship and Immigration Service training materials, among others. The article first provides an overview of the meaning of persecution under U.S. asylum law and international refugee law. Next, the article addresses evolving interpretations of psychological and emotional harm and violations of economic, social, and cultural rights in U.S. law. The article then concludes with practical guidance on how to develop and present asylum claims involving nonphysical harm.
Wednesday, August 5, 2015
Camila Alves was born in Brazil on January 28, 1982. She came to the United States at the age of 15 to visit her aunt and, in her own words, "never left."
Alves supported herself by cleaning houses and waiting tables. She slept on a friend's couch and worked to learn English.
At 19, Alves moved to New York City to pursue modeling. She represented brands such as Dior, Levi’s, Jockey, and Mango. Later, she hosted Bravo's TV show Shear Genius.
In 2006, Alves met her husband-to-be, actor Matthew McConaughey. They have three children together.
This week, Alves became a naturalized U.S. citizen. Congratulations!
Bloomberg Business reports on a interesting downturn in one industry in a recovering U.S. economy.
Immigrant detention facilities built during the detention boom are weighing down the finances of some rural counties in the Sunbelt as border apprehensions slow and the federal government releases more immigrants.
"In Texas, nine of 21 counties that created agencies to issue about $1.3 billion in municipal bonds to build privately run detention facilities have defaulted on the debt. A dozen other facilities from Florida to Louisiana to Arizona also have defaulted."
The slowdown in border detentions is putting a fiscal strain on counties that rushed to build jails. "Municipalities that banked on those facilities for revenue and jobs are desperate to keep them afloat as a glut of beds goes empty and walls gather dust."
On Thursday, the Republican presidential candidates -- or 10 of them -- will debate the issues in Cleveland, Ohio. Fox News has announced said that Republican presidential candidates Donald Trump, Jeb Bush, Scott Walker, Mike Huckabee, Ben Carson, Ted Cruz, Marco Rubio, Rand Paul, Chris Christie, and John Kasich will all appear on the prime time debate on Thursday. That leaves Rick Perry, Rick Santorum, Bobby Jindal, Carly Fiorina, Lindsey Graham, George Pataki, and Jim Gilmore to appear during an earlier -- non-prime time -- debate.
As we all know, Donald Trump staked out an extreme enforcement-oriented approach on immigration. The other candidates have scurried to not be outflanked. Even Jeb Bush, who has written a book on immigration reform, now apparently advocates increased border security measures before creating a path to legalization for undocumented immigrants. While others move toward enforcement, Trump now seems to be softening his position some and voices support for legal immigration.
How the debate will go is hard to predict. Although immigration will likely be a topic of discussion, I do not think we will see any big surprises. We will hear that (1) the current immigration system is broken by all accounts; and (2) the nation needs more border security before any kind of enactment of "comprehensive immigration reform," which is code for any path for legalization. A number of candidates, such as Ted Cruz, will likely take potshots at President Obama's executive actions on immigration and decry any "amnesty."
By the way, is it really true that the debate is in Cleveland so that all the candidates can visit the Rock and Roll Hall of Fame in Cleveland?
Shikha Dalmia on Reason.com writes on a topic that has had me thinking for a while. Why is libertarian-leaning Senator Rand Paul in favor of the government's expansion of border enforcement? Here is a teaser:
"There is no functional difference between the war on drugs and the war on immigration. Both use the power of the state to go after the supposed perpetrators of victimless "crimes" (actually, in the case of immigration, the "crimes" are not only victimless, but have only beneficiaries) while running roughshod over civil liberties and decimating minority communities.
This is why it's so baffling that Sen. Rand Paul (R-Ky.)—who is trying to position himself in the GOP presidential field as a new kind of Republican who cares about civil liberties and minorities—wants to wind down the drug war while ramping up the immigration war."
Immigration Article of the Day: Access to Justice for Asylum Seekers: Developing an Effective Model of Holistic Representation by Sabrineh Ardalan
Access to Justice for Asylum Seekers: Developing an Effective Model of Holistic Representation by Sabrineh Ardalan, Harvard Law School July 24, 2015 University of Michigan Journal of Law Reform, Volume 48, Issue 4 (2015)
Abstract: This Article argues that collaboration among lawyers, psychological and medical professionals, and human rights experts is paramount to ensuring the high-quality representation that asylum seekers need. As policymakers around the country consider different models for expanding immigration representation, it is vital that representation be defined broadly to include the range of experts integral to an asylum seeker’s case. Multidisciplinary representation is a functional requirement to ensure that asylum claims are fully developed and articulated to adjudicators.
The article first explores the legal and financial barriers to accessing counsel. It then addresses the challenges that asylum seekers face when forced to present their cases without access to holistic representation. Next, it discusses barriers to inter-professional collaboration in asylum representation. It concludes by recommending a model of holistic representation for asylum seekers.
Tuesday, August 4, 2015
Photo by A Syn
Since 2013, ICE has used a computerized Risk Classification Assessment to determine whether to detain or release migrants facing deportation.
Mark Noferi and Robert Koulish have analyzed the RCA in their recent paper: The Immigration Detention Risk Assessment, 29 Georgetown Immigration Law Journal 45 (2015). Noferi and Koulish conclude that RCA has not reduced over-detention because mandatory detention laws often dictate the outcome of detention decisions.
Instead of fixing the problem of over-detention, RCA may have simply added "a scientific veneer to enforcement that remains institutionally predisposed towards detention and control."
For more on this issue, see the Immigration Council's blogpost ICE’s Computerized Detention Decision-Maker Can’t Work Because of Mandatory Detention Laws. The post contains links to the documents obtained by Noferi and Koulish under FOIA which form the basis for their conclusions.
The annual Central States Law Schools Association conference will take place at The University of Toledo College of Law on October 9 & 10. The conference is not subject specific, but usually includes panels on immigration, international law, and criminal law. From experience, I can report that CSLSA provides a friendly, intimate, and collegial setting in which to present scholarship.
Although CSLSA is a regional association of law schools, membership is not a prerequisite to attend and present. Faculty from all schools are welcome.
Registration is open now through September 8.
I hope to see you in Toledo!
This Migration Information Source Spotlight looks at Filipino immigrants in the United States.
Filipino immigrants constitute one of the largest foreign-born groups in the United States. Since 1990, the Philippines has been consistently among the top five countries of origin, and was the fourth largest in 2013, accounting for 4.5 percent of the 41.3 million total immigrant population in the United States.
Three major waves characterize the history of Filipino immigration to the United States.
Following the U.S. annexation of the Philippines in 1899, the United States began sponsoring select Filipino students to study at U.S. colleges and universities. Over the next three decades, increasing numbers of Filipinos migrated to the western part of the country, largely California and Hawaii (then a U.S. territory), to fill agricultural labor shortages once occupied by Chinese and Japanese laborers. Filipino migration was made easier by their status as U.S. nationals, as they were not subject to the restrictions faced by other non-European groups in the early 20th century.
The second wave of Filipino immigration began in the aftermath of World War II.
While the postwar period saw a modest influx of Filipinos, particularly higher-educated professionals, their numbers grew considerably in the third major wave of immigration after 1965.
In this Academy Award-nominated short documentary, worlds collide when a former neo-Nazi skinhead and the gay victim of his hate crime attack meet by chance 25 years after the incident that dramatically shaped both of their lives. Together, they embark on a journey of forgiveness that challenges both to grapple with their beliefs and fears, eventually leading to an improbable collaboration...and friendship.
FACING FEAR retraces the haunting accounts of the attack and the startling revelation that brought these men together again. Delving deep into their backgrounds, the roots of the ideologies that shape how they handle the reconciliation process are exposed. Self-doubt, anger and fear are just a few of the emotions they struggle through as they come to terms with their unimaginable situation.
Julian Zatarain arrived from Mexico in 2007 when he was 13. The 21-year-old college student has volunteered for the Red Cross and with an organization that helps young people like him get access to educational resources. Yesterday, Zatarain accepted an appointment to the Huntington Park parks and recreation commission.
Their appointments mark a step by the city to boost the participation of undocumented immigrants in city government. Experts say the move reflects a growing effort in heavily Latino cities to push for more inclusion of people without legal status in public life. "Several years ago, Maywood — which is next door to Huntington Park — made national headlines by declaring itself a `sanctuary' for those who are in the country illegally and repealed practices that some considered anti-immigrant."
This inclusion is also occurring at the state level. California this year began issuing driver's licenses to people without legal status. This summer, the California Legislature passed a measure that provides healthcare to many immigrants who are in the country without proper authorization.
Palgrave MacMillan has announced a new Politics of Citizenship and Migration series. The series publishes exciting new research in all areas of migration and citizenship studies. Open to multiple approaches, the series considers normative, conceptual, comparative, empirical, historical, methodological, and theoretical works. Versatile, the series publishes single and multi-authored monographs, short-form Pivot books, and edited volumes. Broad in its coverage, the series promotes research on citizenship and migration laws and policies, voluntary and forced migration, rights and obligations, demographic change, diasporas, political membership or behavior, public policy, minorities, transformations in sovereignty and political community, border and security studies, statelessness, naturalization, integration and citizen-making, and subnational, supranational, global, corporate, or multilevel citizenship.
Immigration Article of the Day: Trust in Immigration Enforcement: State Noncooperation and Sanctuary Cities after Secure Communities by Ming Hsu Chen
Trust in Immigration Enforcement: State Noncooperation and Sanctuary Cities after Secure Communities by Ming Hsu Chen, University of Colorado Law School; University of Colorado, Boulder - Political Science August 1, 2015, 91 Chicago-Kent Law Review, Forthcoming
Abstract: The conventional wisdom, backed by legitimacy research, is that most people obey most of the laws, most of the time. This turns out to not be the case in a study of state-local participation in immigration law enforcement. Two enforcement programs involving the use of immigration detainers, a vehicle by which the federal government (through ICE) requests that local law enforcement agencies (LEAs) detain immigrants beyond their scheduled release upon suspicion that they are removable, demonstrate the breakdown of conventional wisdom. In the five years following initiation of the Secure Communities program, a significant and growing number of states and localities have declined to cooperate with federal immigration detainer requests or enacted sanctuary policies -- ultimately leading to the demise of the Secure Communities program and a reworking of federal-local partnerships in immigration enforcement through the Priority Enforcement program that replaced it in November 2014. The balance of crime control and community trust in immigration enforcement is being reset as the political pendulum swings as Congress considers legislative reforms to curb local resistance to detainers following the killing of Kathryn Steinle in July 2015.
This Essay finds that state and local non-cooperation in immigration enforcement -- a timely example of uncooperative federalism -- is influenced by attitudes toward the legitimacy of executive action -- distinct from attitudes toward the law’s legality, morality, or politics. Both cooperation and noncooperation contribute to a policymaking feedback loop in ways more complicated than existing theories of cooperative federalism and executive action presage.
EDITOR'S NOTES: This essay is part of the Association of American Law Schools' Symposium on Executive Action held in January 2015, with submissions being published in the Chicago-Kent Law Review. Other contributors include Raquel Aldana, Jill Family, Catherine Kim, Marcilynn Burke, Sudha Setty, Mary Treuthart, and Rachel Salcido.
Monday, August 3, 2015
Today, Republican Presidential candidate Jeb Bush announced a six point plan for enforcing the immigration laws, with ensuring border security an apparent prerequisite for any kind of path to legalization for the 11-12 undocumented immigrants in the United States.
Here are the six points:
1. A forward-leaning Border Patrol with the flexibility to deploy resources to meet threats.
2. Use new technologies to achieve continuous surveillance of the border.
3. Bolster border infrastructure and improve access to federal lands.
4. Require electronic verification of employment eligibility.
5. Identify and send home the people who are entering the United States and overstaying their visas or otherwise violating the terms of their admission.
6. Crack down on sanctuary cities that undermine efforts to enforce immigration laws.
It seems fair to say that the Bush 6 point border security plan is more moderate in tone (if not on its intended impacts) than Donald Trump's statements on immigration enforcement. Still, Bush's plan focused on enforcement seems much less balanced in approach than his 2013 book on immigration reform, Immigration Wars, with Clint Bolick.
For more on the Bush plan, click here.