Wednesday, April 1, 2015
Rep. Bob Goodlatte (R-Va.), chair of the House Judiciary Committee, has concerns about the Special Immigration Juvenile (SIJ) program. He's sent a letter to DHS Secretary Jeh Johnson, highlighting allegations of SIJ fraud.
Goodlatte's fraud concerns stem from a report on NY station WNBC regarding potential SIJ fraud. The report emphasized the fact that family court judges have no way to verify abuse alleged by children coming before them on their first stop to obtaining SIJ status: "Although [their stories] may be completely true, judges say they have no investigative recourse."
The NYT has also covered the issue of potential SIJ abuse and Goodlatte's concerns.
State court judges are skilled fact-checkers and experts in identifying child abuse and neglect. In fact, the reason Congress delegated the factual findings to state courts was their proficiency as child welfare experts. At the federal level, USCIS is statutorily required to review each SIJ application for potential fraud.
Byrne concludes by noting that
SIJ was pioneering in that it was the first piece of legislation that brought immigration law more closely in line with well-established child welfare principles. Increasing administrative barriers or reducing substantive eligibility will only exclude desperate children from the protection they need.
Immigration Article of the Day: Paradoxes of Family Immigration Policy: Separation, Reorganization, and Reunification of Families Under Current Immigration Laws by Maria E Enchautegui and Cecilia Menjívar
Paradoxes of Family Immigration Policy: Separation, Reorganization, and Reunification of Families Under Current Immigration Laws by Maria E Enchautegui, The Urban Institute, and Cecilia Menjívar, Arizona State University, January-April 2015 Law & Policy, Vol. 37, Issue 1-2, pp. 32-60, 2015
Abstract: It is increasingly recognized that immigration laws affect immigrants' integration. Most recently there has been growing attention to how immigration enforcement affects families through forced separations caused by deportations and long‐term family separations across national borders stemming from unauthorized entry to the United States. However, beyond enforcement, there has been little systematic account of how other provisions of immigration law contribute to family separations. In this article we examine how four key provisions in immigration law, far from creating conditions for immigrant families to reunite, contribute to keeping families apart. As such, these provisions shape, in fundamental ways, the structure and composition of immigrant families. Relying on data from the American Community Survey and ethnographic interviews in Phoenix, Arizona, we find evidence consistent with the premise that immigration laws affect the formation, composition, and structure of immigrant families with potential long‐term consequences.
In case you missed KitJ's post on "immigration geography" or even KJ's post of maps depicting which states allow undocumented immigrants to get driver's licenses or may obtain in-state tuition, here are two more maps that offer an interesting look at different state policies affecting immigrants. These maps are courtesy of the New York Times.
Where Laws Have Been Passed Allowing Police to Question People About Their Immigration Status
Which States Are Challenging Programs to Give Work Permits and Protections from Deportation
It would be interesting to see maps of cities within these states that have passed sanctuary laws, adopted noncooperation policies with the federal government or filed amicus briefs in support of President Obama's DACA and DAPA programs.
Tuesday, March 31, 2015
Here is the latest from AP on the latest U.S./Mexico border death trap.
Bodies have recently been seen floating in the Rio Grande. There has been a spike in drownings since October. Immigrants, desperate to avoid detection at a time of increased patrols, are choosing more dangerous and remote crossings into South Texas.
“The canals and areas of the river they are trying to traverse, they typically weren’t trying to go across before,” said Raul L. Ortiz, deputy chief of Rio Grande Valley sector. His sector has already seen at least 16 drownings in nearly six months, nearly a third of them in the canals. The tally is only five short of the number of deaths reported from October 2013 to September, when a historic surge of immigrant women and children were crossing into South Texas. Though illegal crossings have decreased dramatically from last summer, more law enforcement officials are patrolling the border to deter another wave of immigrants.
Selena Quintanilla-Pérez, known by as Selena, was an American singer. Called the Queen of Tejano music, her contributions to music and fashion made her one of the most celebrated Mexican American entertainers of the end of the 20th century. She was named the "top Latin artist of the '90s" and "Best selling Latin artist of the decade" by Billboard magazine.
Yesterday, the U.S. Department of Justice filed a brief in the appeal of the preliminary injunction barring the implementation of President Obama's expanded deferred action program in Texas v. United States. Oral argument on the motion to stay the injunction will be held on April 17.
The brief goes to the merits of the entry of the preliminary injunction and is not limited to the stay motion. It challenges the standing of the states and argues that the plaintiffs are unlikely to prevail on the merits of the Administrative Procedure Act notice and comment claim. The brief further claims that the balance of harms and the public interest weigh strongly against the preliminary injunction. Lastly, the Department of Justice argues that the injunction is overbroad in light of the fact that 24 states, the District of Columbia, and U.S. territories are not party to the action.
The opening paragraphs of the brief provide a sense of the DOJ's arguments:
"This case involves a challenge brought by Texas and other States to enjoin — nationwide— enforcement policies that the Secretary of Homeland Security adopted to manage the government’s limited immigration enforcement resources and prioritize the removal of aliens who threaten national security or public safety, have committed crimes, or recently crossed the border unlawfully. The challenged policies advance that critical national effort by, among other things, establishing guidelines for deferring action on the removal of other aliens who are not priorities, pose no such threats, and have longstanding and close family ties in the United States. The policies are a quintessential exercise of prosecutorial discretion, an executive function that is not subject to judicial review. And they are an exercise of authority that Congress expressly granted to the Secretary to establish policies for enforcement of the immigration laws, a uniquely federal domain into which States may not intrude. See Arizona v. United States, 132 S. Ct. 2492 (2012).
The plaintiff States disagree with the Secretary’s exercise of enforcement discretion and have invoked the judicial power to countermand it. But their claims are, at bottom, policy disagreements that must be resolved through the political process; they are not an Article III case or controversy."
Immigration Article of the Day: The Enforcement Pathologies of Immigration Policing by Barbara E. Armacost
The Enforcement Pathologies of Immigration Policing by Barbara E. Armacost University of Virginia School of Law March 1, 2015 Virginia Public Law and Legal Theory Research Paper No. 19
Abstract: State and local police have become increasing involved in enforcing immigration law. While so called “immigration policing” is not new, as some scholars have claimed, it has increased in visibility and influence. This is due in large part to state and federal legislation that has broadened the footprint of immigration policing programs, and to increased federal funding, which has enabled state/federal cooperative programs to flourish. The federal government has created many of the immigration enforcement partnerships between federal agents and state and local police. Today, U.S. Immigration and Customs Enforcement lists no fewer than thirteen immigration enforcement cooperatives, including the 287(g) program and Secure Communities, recently renamed the “Priority Enforcement Program.” In addition, state legislatures have also been busy empowering state and local police to do immigration enforcement in their jurisdictions, including in Arizona where an important immigration policing provision was upheld by the Supreme Court in Arizona v. United States.
The increased participation of state and local officials has thrust immigration policing into the limelight and triggered passionate reactions by scholars and the media both pro and con. While these debates have important things to say, this article will assume that immigration policing – in some form – is here to stay. The reason is simple: Immigration policing simply makes sense (or in any event it is too tempting to resist). State and local police are already on the street interacting with citizens, enforcing laws, investigating suspicious conduct, and arresting suspected criminals. Why not ask officers engaged in these activities to pursue any suspected immigration violations at the same time, especially if they can do so without changing their ordinary policing activities? While there are 18,000 federal immigration agents there are over 750,000 state and local police with arrest authority. Conscripting state and local police creates a substantial “force multiplier” for the much more limited federal immigration workforce.
Proponents of immigration policing argue that state and local police can serve as a force multiplier without producing any adverse effect on either federal immigration priorities or state law enforcement priorities. The goal of this article is to dispute this claim. The claim relies on the assumption that state and local officials will continue to make law enforcement decisions uninfluenced by the knowledge that stops, investigations, and detentions in connection with other crimes are a gateway to immigration enforcement. It is well know, however, that police officers routinely use “pretextual” street and traffic stops for minor offenses to investigate other crimes for which they lack probable cause. Not surprisingly, police involved in immigration policing are using street and traffic stops as a mechanism for investigating suspected immigration violations. This strategy both compromises federal immigration policy – by shifting the focus away from dangerous criminal aliens and toward minor offenders – and diverts state and local policing resources away from ordinary criminal enforcement. Moreover, stops with hidden immigration enforcement motivations lead almost inevitably to racial profiling, most of which is either legal or very difficult to challenge.
The second part of the article draws on lessons from the Fourth Amendment context to explore possible solutions that will address these distortions while retaining important benefits from the federal/state/local partnerships. The most important strategy for addressing pretextual policing is to decouple state and local policing from automatic (or the perception of automatic) immigration enforcement. One step toward decoupling is to treat stops and arrests for minor offenses, which create the risk of pretextual stops and racial profiling, differently for purposes of immigration enforcement than stops and arrests for more serious crimes. A number of states have moved in this direction by declining to honor ICE detainers for potential immigration violators unless those individuals have actually been convicted of a serious crime. Other states have adopted policies that bar police from initiating police action for the purpose of investigating suspected immigration violations. ICE has also taken steps to channel its enforcement efforts toward illegal aliens who have committed serious crimes or repeatedly flouted federal immigration.
Such efforts point the way forward in an enforcement world in which state and local immigration policing is here to stay.
Monday, March 30, 2015
The Center on Law, Race and Politics at the Duke University School of Law will hold its Present and Future of Civil Rights Movements Conference on November 20-21, 2015. This symposium will examine the future of American civil rights through the interdisciplinary lens of critical race studies, bringing together scholars and practitioners from the legal and social science communities to engage with each other and create conversations towards a more equitable future. We encourage paper and panel proposals on a wide range of topics including, but not exclusively encompassing, the following:
Present and Future of Civil Rights Movements in relation to
- Race and criminal justice
- Minority communities, wealth, and access to credit
- Race and healthcare
- Affirmative action
- Undocumented students and immigration reform
- School disciplinary policies and the school-to-prison pipeline
- Reproductive rights
- Passing and assimilation
- Discourses about post-racialism
- Multiracial identity
- Race and the Workplace
- Race and the Family
- International conceptions of equality law
Each proposal must include a cover page with paper title, presenter, affiliation, and a current email contact, along with a C.V. of each presenter and an abstract of no more than 250 words. Please submit materials via email to DukeLawCLRP@gmail.com with the subject line: CRS Symposium Proposal.
The deadline for submission is June 15, 2015. Scholars whose submissions are selected for the symposium will be notified no later than July 15, 2015. We encourage early submissions, as selections will be made on a rolling basis.
Please visit the Center website for more information.
If one asks people in Mexicali, Mexico, just across the border from Calexico in the Imperial Valley of California, about their most notable regional cuisine, they won’t say street tacos or mole. They’ll say Chinese food. There are as many as 200 Chinese restaurants in the city. North of the border, in Imperial County, the population is mostly Latino, but Chinese restaurants are packed. There are dishes in this region you won’t find anywhere else, and a history behind them that goes back more than 130 years.
There’s a specific legal reason for all of this, according to Professor Robert Chao Romero, author of The Chinese in Mexico, 1882-1940 (2010) “The restaurants you see now are remnants of the Chinese population that used to fill the U.S./Mexico borderlands in Mexicali and in Baja California,” he says. Romero teaches in both the Chicano Studies and Asian American Studies departments at UCLA. “The Chinese started to go to Mexico after the Chinese Exclusion Act was passed in the United States,” he says. Many Chinese immigrants later came to the United States.
Tina Susman reports in the Los Angeles Times on the complaints of dairy farmers about how the the current immigration laws makes it hard to get workers.
Mike McMahon's Latino employees need to go to the bank, the pharmacy or the grocery store, he makes sure someone drives them to town, waits while they run errands, and then brings them safely back to his dairy farm. The risk of deportation of dairy workers is a risk that dairy farmers in this agricultural region have faced for years, but it is hitting them harder as immigration reform languishes in Washington and the nation's demand for milk-heavy products like Greek yogurt soars.
"It's just crazy," said McMahon, who has several hundred cows at his farm more than 200 miles north of New York City. "I'm a lifelong Republican," he said, shaking his head. "But I'm telling you, there are days when I think about switching."
Most people think of border and immigration issues as happening in the Southwest, but it's a real across the entire country. Locals won't do the dirty, manual jobs, farmers say, and immigration laws limit farmers to importing only seasonal agricultural employees. That does not help dairy farmers, who need year-round workers. "The nation's food system is at risk if we can't get this fixed," McMahon said.
Last month, Dean Norton, a dairy farmer who is president of the New York Farm Bureau, traveled to Washington to argue for reform, including a guest-worker program catering to dairy farmers.
Remote Adjudication in Immigration by Ingrid V. Eagly, UCLA School of Law; University of Oxford - Border Criminologies March 19, 2015 Northwestern University Law Review, Vol. 109, No. 4, 2015, Forthcoming UCLA School of Law Research Paper No. 15-09
Abstract: Increased reliance on televideo technology is a central challenge to the legitimacy of modern courts. Supporters view televised adjudication as an essential tool that has no negative effect on judicial decisionmaking, whereas critics urge that it unfairly biases judges against litigants who must pursue claims over a television screen. What has gone unnoticed in this judge-focused discourse is the potential for remote adjudication to discourage litigant participation in the adversarial process. This Article is the first large-scale, empirical analysis of the consequences of televideo on judges, lawyers, and litigants in immigration cases. Based on a natural experiment with televideo adjudication in the federal immigration courts, it reveals an outcome paradox: detained televideo litigants are more likely than detained in-person litigants to be deported, but not because judges unfairly disadvantage televideo cases at trial. Instead, these inferior results occur because detained litigants assigned to televideo courts exhibit depressed engagement with the adversarial process — they are less likely to retain counsel, to apply to remain lawfully in the United States, or to seek an immigration benefit known as voluntary departure.
Drawing on interviews of stakeholders and court observations from the highest-volume detained immigration courts in the country, this Article advances several explanations for why televideo litigants are less likely than other litigants to take advantage of procedures that could help them. These include: (1) litigants’ perception that televideo is unfair and illegitimate; (2) technical challenges in litigating claims over a television screen; and (3) the literal barrier that remote adjudication places between the immigrant respondent and other courtroom actors. These findings invite reexamination of the conventional judge-focused theories about remote adjudication and begin an important conversation about technology’s threat to meaningful litigant participation in the adversarial process.
KJ blogged about how Governor Christie recently joined the 26 other states in Texas v. United States in their efforts to stop President Obama's executive action programs. And Kit Johnson's post on "immigration geography" offers a really helpful visual perspective on this matter.
The issue of states' positions on immigration law, however, is more nuanced when we examine the views of other states and cities, including those located in states that are suing the United States.
In particular, there are states that support President Obama's programs. Indeed, thirteen states (including Washington, California and New York) have filed an amicus brief supporting the United States. State Attorneys General, including Washington's and California's, also submitted their brief in support of the United States.
On the municipal level, 33 cities, NYC, Los Angeles, and San Francisco, have also filed their brief on behalf of the United States. Interestingly, the mayors of Newark, NJ and Houston, TX have signed on to this brief. The mayor of Brownsville, TX also submitted a brief (on behalf of Congresswoman Filemon-Vela (D-Brownsville).
The NYT today covers states taking different approaches to immigration. "This is immigration geography: Some states are reluctant to accept undocumented immigrants, while others are moving to incorporate them," writes Julia Preston.
The accompanying info-graphics are not to miss.
For a nuanced read on state approaches to immigration, check out immprof Stella Burch Elias' terrific work The New Immigration Federalism.
We are all aware that 26 states jointly sued the United States to stop the executive action programs that President Obama issued in November 2014. As KJ recently blogged, the State of New Jersey is the latest to join this effort. (The most recent development in Texas v. United States may be found here).
These divergent state policies regarding programs for undocumented immigrants have different practical realities for immigrants and their families as reported by Julia Preston in the NYT today. Undocumented immigrants in states such as Texas who are unable to obtain driver's licenses must drive to work and school without one. By contrast, those who live in states such as Washington, which allows all persons to have driver's licenses regardless of immigration status, have been able to drive to school, work, grocery stores, hospitals, etc. As litigation continues on Texas v. United States, this article reminds us of the importance on examining the impact that a "house divided" on immigration law have on the day-to-day lives of immigrants.
Sunday, March 29, 2015
In response to murmurings about Senator Ted Cruz's candidacy for President (Cruz was born in Canada to a U.S. citizen mother), Neal Katyal and Paul Clement in the Harvard Law Review Forum have this to say about the U.S. Constitution's "natural born Citizen" requirement for the Presidency:
"There are plenty of serious issues to debate in the upcoming presidential election cycle. The less time spent dealing with specious objections to candidate eligibility, the better. Fortunately, the Constitution is refreshingly clear on these eligibility issues. To serve, an individual must be at least thirty-five years old and a “natural born Citizen.” Thirty-four and a half is not enough and, for better or worse, a naturalized citizen cannot serve. But as Congress has recognized since the Founding, a person born abroad to a U.S. citizen parent is generally a U.S. citizen from birth with no need for naturalization. And the phrase “natural born Citizen” in the Constitution encompasses all such citizens from birth. Thus, an individual born to a U.S. citizen parent — whether in California or Canada or the Canal Zone — is a U.S. citizen from birth and is fully eligible to serve as President if the people so choose."
"Some of them have been building their collections since childhood. Sen. Lindsey O. Graham (S.C.) is up to 12 now, including an AR-15 assault weapon that he has talked about using if law and order ever breaks down in his neighborhood. Former Texas governor Rick Perry is so well-armed, he has a gun for jogging. Others were city kids who didn’t own guns until later in life. Sen. Marco Rubio (Fla.) bought a .357 magnum revolver in 2010, the year he ran for Senate, saying the gun was for protection. Two other city-bred presidential hopefuls — former Florida governor Jeb Bush and New Jersey Gov. Chris Christie — don’t own a gun at all."
“We need to defend the Second Amendment!” Sen. Ted Cruz (R-Tex.) said at a recent “Lincoln-Reagan” dinner for Republicans in Lincoln, N.H. . . . “I’m pretty sure New Hampshire’s definition of gun control is kind of what it is in Texas. Gun control means hittin’ what you aim [at].”
The Chapman Law Review (vol. 18, number 2) has published a symposium entitled "Stalemate on Immigration Reform" with contributions by Scott Rempell (unaccompanied minors and the "border surge"), Wendi Adelson (immigrant admission to the bar), Mariela Olivares (toward gender equality in immigration law), Marisa Cianciarulo (the impacts of the expiration of INA § 245(i)), and Carrie Rosenbaum (the California Trust Act). I also included a piece on immigration reform. See Download Johnson