Monday, November 2, 2015
Lita´s Nigthmare is a comic which tells the story of a teenager - Lita - who dreams of being a model and traveling abroad. She meets Carlos, a handsome young man who pretends to be in love with her and promises to take her to another country. Carlos provides Lita false travel documents and leaves the country with her. Upon reaching the destination country, Lita is sold and sexually exploited in a night club. After two years of suffering, Lita tests positive for HIV and is thrown out onto the street by the trafficker. She is finally rescued by the authorities but is very ill and dies. Fortunately for Lita, this was just a bad dream, a nightmare from which she was able to wake up from.
The original comic was developed by IOM Peru with input from the Research Institute for Children and Families (IDEIF in Spanish) under the Regional Pilot Project for the Prevention of Trafficking in Children and Adolescents and Strengthening Knowledge on Sexual and Reproductive Health. The comic was later updated and an accompanying screenplay was produced by IOM Peru’s Migration Management and Emergencies Unit with support from renowned Peruvian actor and director, Ramon Garcia.
IOM Peru has also joined forces with financial services company SURA Peru, to combat human trafficking, and bring the Lita´s Nigthmare theatrical play. With over 3,900 victims of trafficking, mostly young women identified in Peru between 2009 and 2014, the comic is an important step in making sure that the message gets out to a wider audience.
CNN's website posted some photos of items left by refugees that will make you think. One of the pictures is above. The story by Kyle Almond explains that, after arriving in Lesbos, a Greek island in the Aegean Sea, Anna Pantelia lined up with other photographers as they waited for another boat wave of migrants. "I was looking down (at the beach) and I started noticing many objects -- baby clothes, passports," Pantelia said. Strewn across the sand were all items that had been left behind: teddy bears, pacifiers, shoes, flotation devices, cell phones, photos, cigarettes. They belonged to migrants in search of a better life in Europe.
Do not hold your breath on immigration reform. New Speaker of the U.S. House of Representatives Paul D. Ryan said in a series of televised interviews, including "Face the Nation," yesterday that he would not work with the Obama administration on changing immigration policy. This would make it appear that serious discussions of immigration reform will not take place until the inauguration of a new President in January 2017.
Sunday, November 1, 2015
Guest Blogger: Deborah Ibonwa, second-year law student, University of San Francisco
African immigrants in the United States, specifically those from the sub-Saharan region, are having the hardest time trying to integrate and thrive into the American workforce. They can be highly educated when they get here or spend years trying to obtain the necessary qualifications, but ultimately cannot get anywhere economically because of practical, unavoidable reasons and cultural/racial barriers. Most members of this immigrant group (refugees, for example, who do not have a choice as to where they resettle), also are forced to lose their original citizenship when migrating and cannot hope for repatriation in their home country because of centuries-old violence and civil and political unrest.
The Migration Policy Institute reports that “Sub-Saharan immigrants tend to have much higher educational attainment compared to the overall foreign- and native-born populations …”, however, the underemployment rate for this group is 39 percent, compared to 20 percent of college-educated U.S. workers and 25 percent of other foreign-educated immigrants. The problem begins with the lack of necessary documents, which are usually burned or stolen or lost in the midst of turmoil that these people escape from. Without these documents, they have no way of obtaining work that match their experience, meaning they have to go back to school and graduate at the time most Americans retire or start thinking about retirement. The other difficulty comes in with the long path to citizenship, which can take up to a decade for every immigrant, and without which one cannot hope to get a stable job or maintain a stable life for one’s family. Even once all of this is achieved it becomes very difficult for many to build professional networks and gain respect due to the racial and cultural barriers that thrive in our country. For example, older asylees and refugees who retain their accents after learning English are often turned away from jobs because they are not perceived to be the ideal “American” candidate that companies would like their employees to represent. Although refugee populations tend to be less educated than asylees who voluntarily come to settle in the United States, they still face the much of the same issues.
Some states have taken steps toward facilitating the economic integration of Africans, including Michigan and Illinois. Michigan has worked with employment advocacy agencies to build licensing guides for twenty professions in order to help immigrants know how to begin rebuilding their careers. The state also passed a bill that reduces the number of hours needed to get licenses as a barber with proof of recent experience and training. A bill was introduced in Illinois that would prohibit the denial of a professional license because of federal immigration status. The Welcoming America network is a national initiative which began in Tennessee that creates policies to assist immigrants in navigating the U.S. system. The difficulties with integration of Africans on the U.S. economic ladder will hopefully become easier to overcome with the expansion of these and similar state initiatives, but overall this is a major immigration concern for a rapidly growing population that does not receive the attention it needs.
Sub-Saharan African immigrants in the United States have been forced to let go of hopes for stability and thriving careers in their home countries in order to build a safe life for their families in our country. Yet because of a variety of reasons, this highly educated group is underemployed and overworked in classes of employment way below their expertise that do not allow them to make a feasible income. There is some hope in the future to facilitate economic integration, but for now it seems that older generations of these immigrant groups have to work twice as hard as the majority of Americans and focus on building a better future for their children.
Saturday, October 31, 2015
Naturalization ceremony with costumes; via Daily Mail
Happy Halloween, y'all. We hope you're out on the town loading up on candy and merriment. But if you're at home, surfing the web, looking in the blog, we've got a holiday post for you.
Check out the the 6 Tasteful Halloween Costumes You Can Wear To Your U.S. Citizenship Naturalization Ceremony. I'd recommend "Dead Nun." That definitely says "I'm committed to becoming a U.S. citizen."
And file this under who knew? Last year the USCIS held a naturalization ceremony on Halloween just for kids, and they all wore costumes!
Have a great evening.
Reuters reports that nearly 30 women at an immigration detention facility in Texas have begun a hunger strike. In their letters, they highlight “grave injustices,” detentions of up to 18 months, inedible food, and “little or no security.”
“There are grave injustices being committed, detentions spanning eight months, 10 months, a year, a year and a half, so in the end we are being told we have no rights and will be deported, with offensive words and gestures that make us feel worthless,” Magdrola, from Guatemala, wrote in her letter, published by Grassroots Leadership along with 16 letters from other detainees.
According to the rights group, at least 27 women are hunger striking at the T Don Hutto residential center in Taylor, near Austin, asking for immediate release.
Friday, October 30, 2015
In a special report in the Los Angeles Times, Joseph Tanfani, Brian Bennett, and Matt Hansen report that, searching for a way to curb fatal border shootings, Border Patrol leaders decided in 2008 began to supply Tasers, a hand-held device that delivers a paralyzing electric charge, as a way to end confrontations quickly and safely. But in scores of cases, the Tasers became instruments of excessive force.
The Times examined 450 uses of Tasers from 2010 to 2013 that were documented by U.S. Customs and Border Protection agents. At least 70 times, agents fired the devices at people who were running away, even though there was no struggle or clear indication that agents were in danger, according to use-of-force reports. At least six times, agents used the weapons against people who were trying to climb over the border fence back into Mexico. Two people were shocked while they were handcuffed. Two were hit with five cycles of the weapon, even though the agency's policy says no one should receive more than three. Three people died after being hit by Tasers wielded by border agents or customs officers.
In one episode, 24-year-old Alex Martin, who had led agents on a car chase, burned to death after a border agent smashed his car window and fired a Taser inside. The device ignited an explosion and fireball. Others were seriously hurt.
Call for Papers: Symposium on Sanctuary, Detainers, Undocumented Crime and the Law: History, Contemporary Challenges and Possible Solutions
The University of St. Thomas Law Journal (Minneapolis) is calling for papers for the Sanctuary, Detainers, Undocumented Crime and the Law: History, Contemporary Challenges and Possible Solutions Symposium on March 18, 2016 in Minneapolis.
At present, we are thinking to organize interactive panels around the following topics:
1) Sanctuary Movements in History / Historical and Theological Roots.
2) Federal Immigration Enforcement and Relationships with Local Law Enforcement – Constitutionality of Detainers, the Demise of Secure Communities and the Rise of PEP
3) Sanctuary Ordinances and Efforts to Limit their Effect at the State and National Level.
4) Undocumented Crime – by and against undocumented immigrants.
We are pleased to issue this Call for Papers for the Symposium. Abstracts should be no more than 750 words and must include author(s), professional/academic affiliation, and email. Please indicate the thematic focus (1 – 4) of your paper (and you can suggest whether it would be appropriate for more than one panel).
We invite submissions not only from lawyers but other related fields as well (e.g. history, political science, theology).
Abstracts should be sent to: VOWIEBE@stthomas.edu
Dates to Remember:
Abstracts due: November 16, 2015, 5pm.
Admissions notification: December 1, 2015
Final Papers due: June 17, 2016
Symposium Sponsor: University of St. Thomas Law Journal
Travel support for presenters will be available.
The New York Times has a compelling story about unaccompanied minors coming from the Middle East to Germany. Estimates place the total number of unaccompanied minors in Germany at 30,000. To put that in context, the United States (with 27.53 times as much physical space and nearly 4 times the population as Germany) received roughly 68,500 unaccompanied minors in FY 2014 and 40,000 in FY 2015.
Germany is struggling to provide for these young arrivals. One city, Passau, has a "youth welfare office" with a budget of €2m and a staff of 25, who, in former times, protected "neglected and abused children from drug-addicted parents and domestic violence." Now, the staff works hard to find "foster families, homes, psychological support, legal guardians and schools for the young Syrian, Afghan and Somali arrivals."
Children as young as 8 are making the journey alone. More typically, Germany is seeing young boys aged 14-17. The few girls who arrive have been severely traumatized by sexual violence.
Immigration reporter Elise Foley has an update on the Central American Minors (CAM) program for the in-country refugee and parole processing of minors in Honduras, El Salvador and Guatemala. CAM was created to deter the flow of unauthorized entries by unaccompanied minors by giving parents a "safe, legal and orderly alternative to the dangerous journey" across the U.S.-Mexico border.
So far the United States has interviewed 90 out of nearly 4,000 applicants. Foley reports that while "most of those interviewed were found eligible for help, none of them have come to the U.S."
The problem is that applicants are using the program because their lives are being threatened. Yet the slow pace of the program requires them to stay where they are being threatened in order to remain eligible for eventual relief.
Fox News picked up on this story. Accusing the Border Patrol of “unjust killings, …. racial profiling, use of force, and unjust violence,” protesters at University of California, Irvine succeeded in stopping the Border Patrol from taking part in an Oct. 22 career fair.
"We regret to inform the community that out of concern for the safety of CBP Recruitment Officers, U.S. Customs & Border Protection will no longer be participating in the UCI Fall Career Fair,” a U.S. Customs and Border Protection spokesman told FoxNews.com, instead referring students to the agency’s recruitment website.
The move followed a Change.org petition drive. The petition claimed “having Border Patrol agents on campus is a blatant disregard to undocumented students’ safety and well-being” and is insulting to “mixed-status families.” The petition claimed the mere presence of Border Patrol representatives could prove traumatic for students.
UCI’s administration was “prepared to take every step necessary to ensure their safety and the safety of the attendees,” said a university spokeswoman, adding that the university never received any threats to safety.
U.S. Department of State Takes Small but Important Step to Protect Spouses of Same-Sex Asylum Seekers
The U.S. Department of State’s recent change to the guidelines that inform refugee admissions makes it easier for lesbian, gay, bisexual, and transgender, or LGBT, refugees and asylees to have their partners join them in the United States. The State Department officially changed the interpretation of the term spouse under the Process Priorities, or P-3, family reunification program in order to allow same-sex partners of qualified refugees and asylees in the United States to file an affidavit of relationship in order to join their partners in the United States—even if they are not legally married. Many LGBT asylum seekers in the United States are fleeing persecution from their home countries because they are LGBT and unable to marry.
“The State Department has made a small but important change to its regulations, which will allow for more LGBT asylum seekers to reunite with their families in the United States,” said Sharita Gruberg, Center for American Progress Senior Policy Analyst and author of a column released today on the department’s change in policy. “Given that so few countries recognize same-sex marriages, the State Department’s former requirement of marriage documents meant that LGBT refugees had to choose between safety and living with the ones they love. Though the policy change is an important step toward equality within the refugee system, it must be expanded from the limited number of countries recognized in the P-3 program.”
Due to logistical hurdles, the P-3 program only recognizes a small pool of countries and leaves out some of the countries that are the most blatantly hostile to LGBT people. The column calls for the establishment of universal P-3 status, which will open family reunification to all refugees and asylees regardless of country of origin. Short of this measure, the column suggests the use of humanitarian parole—which would allow partners of asylees and refugees to enter the country for enough time to marry in the United States and extend protected status to their partners.
Click here to read the column.
University of Louisville President Ramsey is at the lower right, in the multicolored poncho.
The University of Louisville has apologized after its president, James R. Ramsey, and other university officials drew sharp criticism for appearing in a photograph in stereotypical Mexican costumes, complete with sombreros, reports The Courier-Journal, a newspaper in Louisville, Ky.
Abstract: This article originated as part of a symposium at the University of Oklahoma College of Law held on the occasion of the 125th anniversary of the Supreme Court’s decision in Chae Chan Ping v. United States, often called The Chinese Exclusion Case. Immigration law’s plenary power doctrine, traditionally traced to that decision, has persisted despite a steady and vigorous stream of scholarly criticism; its vitality is reflected in the Court’s 2015 decision in Kerry v. Din. This essay undertakes to explain why.
Contrary to some accounts, the Court’s strong deference to the political branches does not derive from the concept of sovereignty. Justice Field’s opinion for the Chae Chan Ping Court invoked sovereignty not to trump rights claims but to solve a federalism problem – structural reasoning that locates the immigration control power squarely in the federal government rather than the states, even though that power is not explicitly enumerated in the Constitution. In any event, that a power is labeled sovereign does not necessarily entail that it lies beyond judicial review or deserves extraordinary deference.
The Chae Chan Ping Court’s deference to the political branches instead rested primarily on the close linkage between foreign affairs and immigration control decisions. This essay illustrates why such linkage is more significant than is often appreciated, even today, as the federal government seeks to work in a complex and uncertain global context, where many powers and enforcement tools taken for granted in the domestic arena simply are not reliably available. The Court implicitly remains willing to give the political branches leeway to use immigration authorities in rough-hewn ways, even though deference does mean that some governmental acts deriving from illicit motives rather than genuine foreign affairs considerations may go unremedied in court. The Court adheres to a strong deference doctrine out of concern that lower courts, if given wider authority to review, will overvalue individual interests and undervalue governmental interests. In an increasingly dangerous world, the Supreme Court is unlikely to overrule the plenary power doctrine. Academics and activists should respond by focusing more attention on policy analysis and advocacy addressed to the political branches, forums where constitutional values can be pursued and successfully – if unevenly – vindicated, as Justice Field recognized.
Listen to this heartwarming Capital Public Radio report on an undocumented immigrant who received relief under President Obama's Deferred Action for Childhood Arrivals program. Laura Aguilar wasone of an estimated 11 million people who live the United States without authorization. As a child she did not have a choice about whether she wanted to move to California from Mexico. After nearly 20 years here, Laura says she’s an American and she intends to make her life in the United States and give back to her community.
On September 18, 2015, Laura Aguilar Sanchez received a white clinical coat as one of 89 students welcomed to UC San Francisco's School of Dentistry. She is one of three undocumented students accepted to the Class of 2019.
A U.S. citizen is seeking asylum in Canada because he says he’s afraid of being killed by police in this country because he is black. Kyle Lydell Canty argued his case at an Oct. 23 hearing before Canada’s Immigration and Refugee Board.
“I’m in fear of my life because I’m black,” Canty told IRB member Ron Yamauchi. “This is a well-founded fear.”
Canty, who crossed the Canadian border in early September, argued that black people in the U.S. are “being exterminated at an alarming rate.” He cited the police shooting of Michael Brown in Ferguson, Missouri, and the death of Eric Garner at the hands of police in New York City last year. .
Canty, who was born in New York, has lived in six different states. He said police have harassedhim for being black in every place he has lived.
Thursday, October 29, 2015
The following is a summary, from the perspective of two practitioner and immigration law professors, of a few of the highlights of the National Immigration Project membership and litigation meetings held last week on October 22 and 23. The membership meeting addressed topics such as implementation of the Priority Enforcement Program (PEP), detention, strategies for those who would have qualified for DAPA, retaliation by DHS, U non-immigrant status, criminal-immigration issues, and asylum developments. (For the agenda, see here.) The litigation meeting covered ISAP-related litigation, 8 CFR 103.5 motions challenging DHS-issued orders, circuit court jurisdiction over reasonable fear denials, the Luna-Torres v. Lynch litigation, and other topics. (These notes will not address the all-day continuing legal education seminar the day prior.) Our discussion focuses on problems observed, more than potential solutions so as not to reveal potential future litigation strategies, though there were many productive and inspiring conversations regarding strategy.
One issue that stood out was the numerous and varied reports of rights violations in several contexts including Immigration and Customs Enforcement (ICE) and collaboration with sub-federal authorities, retaliation against those in custody including use of solitary confinement and denials of access to counsel, ICE arrests of noncitizens with criminal convictions from probation meetings, traffic courts, as well as home arrests/invasions involving the use of elaborate schemes and trickery that appear to be unofficially or perhaps even officially sanctioned.
While NIP does a fantastic job of creating a for advocates nationwide to share stories and pursue collaboration, the seeming increase in stories regarding the volume and nature of rights violations, suggests the need for even more collaboration, and if possible, investment in more national efforts to pursue unified strategies, or strategies that are locally tailored, but informed by experiences of advocates around the country. On a more positive note, the increase in attendance, and the increase in capacity that represents are what will continue to make NIP and its member agencies, students, and individual advocates forces to be reckoned with in the struggle for immigrant rights.
Before getting into our synopsis of some of the high points of the meetings, as an emerging scholar, I (Carrie) was reminded of the importance and value of being a practitioner, law teacher, and scholar, simultaneously. The ability to relate the stories of other advocates to my scholarship and that of my peers, and then take the theories of scholars and litigation experts to the classroom, and the practice of law, is invaluable. At the same time, I would like to see even more cross-pollination of those working in the trenches and scholars so that our work can be even more mutually reinforcing than it already is. Also, my observations at the meetings reminded me that, as I have explored in my scholarship, the remedies that currently exist in the law intended to prevent or deter law enforcement misconduct are inherently flawed, inadequate, and will continue to fall short in protecting and remedying rights.
Carrie has consciously chosen to use the term “prisons” instead of “detention centers” and “incarceration” instead of “detention” because these terms are more accurate because conditions of confinement have been described by those imprisoned, and human rights organizations as akin to criminal incarceration. In some respects it is even more punitive because those incarcerated may have never violated any U.S. law, particularly those reaching the border and requesting asylum. The government has chosen the term “detention center,” which while accurate because they are technically civil centers, misrepresents their true nature. In line with advocates at the meeting, we use the term “shackles” instead of “ankle bracelet.” The government and their corporate contractors use the term “bracelet,” which similarly downplays and minimizes the true confining nature of this form of custody. We encourage others to similarly adopt these terms.
And now, some of the high points of the meetings:
Stories Related to the Priority Enforcement Program (PEP)
Advocates are seeing widespread problems across the country with ICE’s latest misguided enforcement effort, the priority enforcement program (PEP). Some of the questionable tactics reported include arresting low-priority people who happen to be with the person that the fugitive team is looking for, ICE officers being present at traffic court or other courts to arrest people while attending hearings, and illegal home raids. In California, there are statewide reports of violations of the TRUST Act. Speakers from the Immigrant Legal Resource Center, ACLU, and the New Orleans Worker Center for Racial Justice highlighted some of the problems in their areas.
It appears that because of recent policy-based limitations on ICE collaboration with local law enforcement, instead of local sheriffs holding an individual for 48 hours after their criminal sentence is complete, during which time ICE may make a transfer to ICE custody, they are pursuing potentially illegal or problematic alternative tactics. While under PEP, ICE is supposed to be able to obtain “notification” of pending release of someone who may be a priority for immigration apprehension and removal, ICE is interpreting the term “notification” beyond its literal meaning by seeking active collaboration from local police to arrange for in-custody transfers to ICE custody. Thus apparently ICE is treating in-custody transfers as equivalent to “notification.”
Another example of an alternative tactic to ensure ICE obtains custody of an individual who completed a criminal sentence was an instance where local jailers indicated that a former prisoner was free to leave, yet withheld his personal clothing and shoes while ICE happened to show up to arrest the individual. Advocates discussed measures police departments could implement to ensure that ICE and sub-federal law enforcement agents are complying with PEP as well as state and federal law.
Another example of misconduct reported was within the context of home raids and checkpoints. In one city, after a local jail stopped doing ICE holds, ICE field officers began collaborating with local police to set up checkpoints for vehicles. Local police would decide whom to stop, potentially ask questions about national origin, and ICE field officers would do biometrics/fingerprinting in the field. Based on the description of the tactics, it sounded like officers may have lacked reasonable suspicion or probable cause to make the stop and instead relied impermissibly on racial profiling. This sounds similar to what transpired in a town in Arizona in 1997 in what became known as the “Chandler Roundup,” which resulted in equal protection and Fourth Amendment challenges, and later, Chandler became a sanctuary city. In another instance, local police asked individuals on the street to prove they were in the U.S. lawfully, brought them to jail, and then called CBP who transferred them to ICE custody. All of this happened without a detainer, or any process. This sounds eerily like what the Supreme Court rejected in Arizona’s attempt at regulating immigration law pursuant to S.B. 1070.
In yet another variation on questionable enforcement practices, ICE agents have been reported to impersonate another agency (e.g. representing themselves as local police) taking advantage of people’s trust in other government agencies, and then arresting suspected noncitizens. For example, ICE agents knock on a door and pretend to be the local police, inform the person opening the door that they are concerned that someone living there was the victim of identity theft, and when people presents themselves, ICE arrests them. Many of these practices are directly related to the larger discussions happening nationally concerning racial profiling and police misconduct.
Also addressed were the long delays in obtaining an initial hearing pertaining to custody in immigration court. Some advocates are pursuing litigation arguing that the rights to presentment and a speedy trial apply in immigration court. This is a separate issue from what was addressed in Demore v. Kim and the Rodriguez litigation, which did not focus on long delays before the first appearance in immigration court. Please note that the discussion took place before the amazing October 28th Ninth Circuit victory in Rodriguez v. Robbins.
Other detention issues
Advocates from the Transgender Law Center addressed the treatment of LGBTQ individuals in detention, especially focusing on the inadequacy of the new ICE protocols. In California, there is apparently one “detention” center with a housing unit for transgender women and a separate unit for gay and bi-sexual men. There are approximately 40-50 trans-women and 60 gay or bi-sexual men housed there. They may have strong asylum claims but experience significant issues accessing counsel – some had been incarcerated for years and had never met a lawyer. While DHS issued a new memo this past June addressing policies concerning these communities, the policies are problematic because in part they ask individuals to make themselves vulnerable by identifying themselves publicly. The memo creates an illusion of safety. This section also covered campaigns, like the Shut Down Etowah campaign run by NDLON, which combines organizing efforts of grassroots organizations with a legal strategy. Specifically, these campaigns seek to heighten the visibility of horrific conditions within detention centers through local campaigns, but also through the testimony of people who might be released through habeas petitions.
ICE Retaliation Against Those in Immigration Prisons
Advocates discussed an alarming array of actions by DHS to retaliate against detainees, immigrants, and advocates for speaking out about government misconduct, including such things as truthful blog posts by advocates about conditions of confinement in immigration prisons. A common theme is to try to stop the flow of information about what really is happening in detention centers. For example, if a community advocate finds out about misconduct by detention officials and reveals this through filing a complaint, many times the detention center or ICE will then cut off cooperation with a program to allow them to meet detainees.
Sometimes it is clear that ending access to detainees is retaliation but ICE will not reveal who is behind the act of blocking access – ICE, others in DHS, or the private company that runs a detention center. Detention centers even undermine CRCL investigations and retaliate against detainees who file truthful CRCL complaints. For example, two detainees filed CRCL complaints and when CRCL indicated it wanted to interview the detainees, ICE and the detention center immediately started an extraordinary series of transfers that moved the detainees to a few locations, which made it very difficult for the detainees’ lawyers to meet them and explain why that they might consider cooperating with the CRCL interviewer. ICE is using solitary confinement in dark cells to punish hunger strikers. In some instances, advocacy has produced positive results thanks to the hard work of groups like the ACLU, CIVIC, Adelante Workers Center in Alabama, NIPNLG and the Southern Poverty Law Center.
ISAP and Alternative Detention
Advocates discussed disturbing violations of civil rights by ISAP staff and ICE. Examples include coercing or tricking detainees to sign up for ISAP, improperly blocking access to counsel when detainees are forced to decide whether to sign up for ISAP, and improperly imposing ISAP restrictions when an IJ ordered release without imposing any ISAP conditions. Advocates addressed likely legal error by immigration courts that reject motions to ameliorate detention conditions that are not filed within seven days of being released on ISAP and discussed possible legal theories.
Other advocates see an unfair delay in motions to ameliorate to be heard – during the long delay for the court to hear and rule on the motion, the unfair ISAP conditions continue. One advocate saw a shocking imposition of ISAP not on the immigrant but on the immigrant’s relative on the purported basis that the immigrant was not able to talk due to a medical condition so ICE felt it justified shackling someone else in the United States.
Ankle shackles interfere so much with daily living that it would be logical for courts to grant a Rodriguez hearing to people confined by an ankle shackle for six months. Ankle shackles interfere with daily living, such as interfering with possible job opportunities and not being able to perform ordinary daily activities, spend a night at a family member’s home, etc. ICE has also been reported to have improperly forced someone to have an ankle shackle without analyzing whether it is appropriate and also refusing to refund the bond money that was posted under the judge’s promise that if the bond was posted, the person would be freed – and the judge never mentioned any possibility of suffering an ankle shackle if bond is posted.
While ankle shackles may be preferable over actual complete, physical incarceration, advocates, scholars, and others should be aware of the rights and other violations occurring in the context of these alternative forms of custody. In part, there seems to be some similarity in the kinds of problems in both contexts, where private corporations are subcontracted to run immigration prisons (“detention” centers) and ankle shacking administration, including a trouble lack of accountability.
Advocates reported a long list of ISAP problems, including: keeping ankle shackles on someone for 1-2 years for no apparent reason and no review of whether continued shackling was lawful or appropriate, putting shackles where there is no apparent reason for doing so other than to accrue reimbursement from the federal government for using more shackles, unreasonably short intervals before demanding those on ISAP meet with ISAP officers. Advocates are concerned about the possibility that ISAP could be using ankle shackles to eavesdrop shackle wearers and those around them, including, attorney-client and doctor-patient confidential discussions. Additionally, ICE has entered contracts with ISAP companies that ICE claims do not allow them to permit attorney representation at ISAP meetings.
Advocates should share stories about outrageous or improper ISAP conditions to the American Civil Liberties Union.
Rule of Lenity Litigation
The rule of lenity is fully briefed in Luna-Torres, a case soon to be argued before the Supreme Court. The argument in part suggests that the rule of lenity should be applied in immigration court when the statute being interpreted also has been, is going to be, or may in the future be interpreted in criminal court proceedings, such as when an immigration court analyzes whether an arson is an aggravated felony in deciding whether someone is deportable, and a criminal court in the future may analyze whether an arson is an aggravated felony to decide whether to apply a sentence enhancement for those with aggravated felonies. It would be improper to have a harsh interpretation in immigration court and a lenient interpretation in criminal court about the same person, same crime, same conviction, and same legal topic of whether the offense is an aggravated felony. Advocates are advised to argue for the rule of lenity even if the client has never been in criminal proceedings because one day in the future the client might be in criminal proceedings and the rule of lenity would be applied at that point.
This only partly summarizes some of the dozens of topics raised during the NIP meetings. We thank everyone who planned, moderated, and participated in the productive discussions. The wide range of resistance against improper and illegal government conduct was inspiring and similar to law school National Lawyers Guild discussions about the importance of employing creative strategies to fight for justice, within, and outside the law. The camaraderie in beautiful Oakland made up for the secondary trauma we suffered while listening to the horrifying updates.
Welcome to Throwback Thursday, a new series in which we profile previously-published scholarship. Our goal is to highlight excellent work that may not be on the radar of new scholars.
In 1990, economist David Card published a groundbreaking article entitled The Impact of the Mariel Boatlift on the Miami Labor Market.
Card studied the effect that the large influx of Cuban workers (125,000 arrived between May and September of 1980) had on the Miami labor market. He found that the labor force grew by 7%, with a greater increase in less-skilled occupations and industries. But he found no effect on the wages or unemployment rates of non-Cuban workers nor non-boatlift Cuban workers. There was, in fact, "rapid absorption" of the Mariel immigrants into the Miami workforce.
Card attributed the success of Mariel migrants in Miami to the unique industry structure of the city and the city's already high concentration of Spanish-speaking natives. He also concluded that the increase in Mariel migrants may have deterred internal migration to Miami.
Card's findings have led scholars like immprof Howard Chang to conclude that there is no empirical support for protectionist immigration laws.
The United Nations High Commissioner for Refugees has released a report, “Women on the Run: First-Hand Accounts of Refugees Fleeing El Salvador, Guatemala, Honduras and Mexico.” The report is based on interviews with more than 160 refugee mothers and children detained by DHS, highlights the gender-based violence the interviewees faced in El Salvador, Honduras, Guatemala, and Mexico, and offers recommendations to the region.
The Recommendations include the following:
- Make Saving Lives the Top Priority UNHCR calls on governments in the region to:
- Ensure that all steps taken to manage this situation are in strict accordance with refugee law, including the fundamental principle of non-refoulement.
- Ensure that all migration policies protect people’s legal right to seek asylum, and refrain from using detention as a deterrent.
- Provide safe and legal avenues to asylum so that individuals fleeing their countries do not have to turn to people smugglers.
- Reinforce Host Country Capacity to Provide Refuge UNHCR calls on governments in the region to:
- Set in place or reinforce individualized screening procedures to identify the specific protection needs of all those arriving.
- Ensure that individuals in need of refugee protection can access adequate and humane reception conditions, including by:
- Reinforcing shelter availability appropriate for particularly vulnerable groups, including transgender women and unaccompanied children.
- Strengthening alternatives to detention, including various forms of reporting requirements, community and supervision schemes, and accommodation in designated reception centers with guaranteed freedom of movement. Such alternatives have proven to be far more cost-effective than detention.
- Avoiding the use of unnecessary immigration detention and other punitive measures. Deprivation of liberty must be a last resort used only after individualized determination, and the best interests of the child must guide all actions taken in regard to children.
- Bolster efforts to ensure access to fair and efficient asylum procedures, including by:
- Ensuring asylum-seekers, and in particular unaccompanied children, have access to legal assistance and information on the right to seek asylum.
- Providing the necessary resources for domestic adjudication processes to resolve cases in a timely manner.
- Allowing for deportation of those who are not found to be in need of protection in a manner that ensures the return is carried out with safety and dignity.
- Training adjudicators on the application of refugee law to people fleeing the NTCA and parts of Mexico, with particular focus on profiles of individuals at heightened risk of persecution such as women subject to gender-based violence, transgender women, and unaccompanied children.
- Promote durable solutions and collaborate to share responsibility for refugee protection in the region, including through refugee resettlement as a strategic and/or emergency protection tool for refugees at a heightened risk.
- Address Root Causes of Displacement UNHCR calls on governments in the region to:
- Redouble efforts to formulate political solutions that address “push factors” and the root causes of refugee flows.
- Expand efforts to prosecute traffickers and smugglers while fully respecting the rights of victims.
See my take on the discussion on immigration at the CNBC Republican debate at the University of Colorado in Boulder, Colo., on Wednesday night saw relatively few immigration fireworks. This is presidential primary season that has been filled with talk of border fences, more enforcement, deportation campaigns and anti-Latino comments. So it’s a good sign that the immigration discussion was relatively tame.