Tuesday, June 2, 2015
High Court Refuses to Review Ruling Striking Down Arizona Law Denying Bail to Undocumented Immigrants
AP reported on a Supreme Court immigration story that went largely ignored yesterday. The Court refused to review a court of appeals decisions striking down an Arizona law that denied bail to immigrants who are unlawfully in the country. The Court refused to hear the case and possibly reinstate the 2006 law after the Ninth Circuit struck it down last year.
The case was County of Maricopa, Arizona v. Lopez-Valenzuela. Justice Alito dissented from the denial of certiorari. Justice Thomas, joined by Justice Scalia, also dissented from denial of certiorari and lamented that "The Court’s refusal to hear this case shows insufficient respect to the State of Arizona, its voters, and its Constitution. And it suggests to the lower courts that they have free rein to strike down state laws on the basis of dubious constitutional analysis."
In 2006, Arizona voters amended their State Constitution to render ineligible for bail those individuals charged with “serious felony offenses” who have “entered or remained in the United States illegally and if the proof is evident or the presumption great as to the present charge.” A divided en banc panel of the U. S. Court of Appeals for the Ninth Circuit held this provision unconstitutional under the Due Process Clause.
The Supreme Court had previously refused to grant a stay of the Ninth Circuit ruling in the case.
June marks the second annual Immigrant Heritage Month in the United States, which honors the place of immigrants in shaping U.S. society. According to the U.S. Census Bureau, the nation's immigrant population is more than 41 million, or 13 percent of the total population of 316 million.
Actress Dania Ramirez interviews her family members in this documentary (An American Alien) that tells the story of her parents coming to America from the Dominican Republic. She released the video above on YouTube to celebrate Immigrant Heritage Month 2015.
Immigration Article of the Day: Same-Sex Spouses Lost in Translation? How to Interpret 'Spouse' in the E.U. Family Migration Directives by Scott Titshaw
Same-Sex Spouses Lost in Translation? How to Interpret 'Spouse' in the E.U. Family Migration Directives by Scott Titshaw, Mercer University - Walter F. George School of Law ; Mercer University School of Law, May 20, 2015, Boston University International Law Journal, Vol. 34, No. 1, 2016 Forthcoming
Abstract: This Article analyzes the word “spouse” in European Union Family Migration Directives in detail, focusing on the treatment of married bi-national same-sex couples. In the process, it describes and applies accepted methods of E.U. directive interpretation in a way that may provide general guidance to lawyers more familiar with statutory interpretation under other legal traditions like that of the United States.
U.S. comparisons are apt in this context. Like U.S. States, individual E.U. Member States have primary authority over family law, but the Union exercises significant authority over immigration and internal migration. Thus, family-based immigration is a point of tension within the multi-tiered legal systems on both sides of the Atlantic.
Directives expressly provide immigration rights to the “spouses” of E.U. citizens and legal residents. Yet there is lively debate regarding whether this term includes married same-sex couples. While a growing number of E.U. Member States authorize same-sex marriage, the majority still do not. The Union, therefore, must determine how to treat migrating couples who are legal spouses in one Member State, but not in another.
This echoes the choice faced in the U.S. in both 1996 and 2013: Should federal law determine spousal status based on the law of the jurisdiction where a marriage was celebrated or where the couple resides, or create its own independent federal definition? The American experience with two of these approaches (a federal definition and a place-of-celebration choice-of-law rule) may help Europeans as they develop their own answer. The alternative European focus on registered or de facto partners also may interest Americans.
Monday, June 1, 2015
The Supreme Court today decided Mellouli v. Lynch. Here is the background on the case on SCOTUSblog. It finds that a Kansas drug paraphernalia conviction based on a sock used to conceal Adderal. My preview of the issues is here. Justice Ginsburg wrote for the majority. Justice Thomas, joined by Justice Alito, dissented.
UPDATE (June 3): The crImmigration blog has posts in an on-line symposium on Mellouli v. Lynch with contributions from Jennifer Lee Koh, Michhael Goldman, and Cesar Garcia. Expect contributions from Jason Cade, Sejal Zota, and Kate Evans.
Photo courtesy of Cyrus D. Mehta & Associates, PLLC website
Cyrus D. Mehta has an interesting post about the appeal of Texas v. United States in the Fifth Circuit. Mehta sees the Fifth Circuit's en banc decision in Villas at Parkside Partners v. Farmers Branch, 726 F.3d 524 (5th Cir. 2013), which struck down a Farmers Branch, TX, ordinance on preemption grounds, as offering a potential key to victory. Interesting, Judge Higginson, who dissented the recent stay decision in Texas v. United States, wrote for the majority in the Farmer's Branch case while Judges Smith and Elrod, in the majority in Texas v. United States, dissented in Farmer's Branch.
Immigration Article of the Day: Comparative Perspectives on Statelessness and Persecution by Maryellen Fullerton
Comparative Perspectives on Statelessness and Persecution by Maryellen Fullerton, Brooklyn Law School May 21, 2015 Kansas Law Review, Vol. 63, No. 101, 2015 Brooklyn Law School, Legal Studies Paper No. 414
Abstract: More than ten million individuals are stateless in the twenty-first century. They live on every continent, yet not one country views them as full members. Without citizenship, they lack a legal claim to protection from the nations where they reside. When abroad, they lack diplomatic protection. In a world of nation states, they fall between the cracks. Lack of state protection, the defining characteristic of statelessness, is also the hallmark of refugees. Although refugees frequently possess the formal indicia of citizenship, they are forced to flee states that cannot or will not protect them. Refugees are often de facto stateless, seeking protection from other states and the international community.
Statelessness and refugee law both overlap and diverge. Stateless individuals who fear persecution may qualify for refugee status. This article explores important intersections between statelessness and refugee law by asking when statelessness leads to a well-founded fear of persecution. It begins with a synopsis of the treaties concerning statelessness and refugee status to set forth the legal framework, and then sets the context by identifying major stateless populations and the principal mechanisms that result in statelessness. The article then turns to four recent judicial opinions in Canada, the United Kingdom, and the United States, each of which provides a different perspective on circumstances in which statelessness constitutes persecution. Choudry v. Canada concerns an individual who was born into statelessness, which was compounded by his lack of proof of identity. S.T. v. Secretary of State for the Home Department and Haile v. Holder arose from government wartime decrees stripping groups of people of their citizenship. Stserba v. Holder stemmed from the dissolution of states, gaps in the subsequent citizenship laws, and a naturalization process imposing a language requirement on long-time inhabitants.
All of the tribunals are sympathetic to the claimants’ contentions that their experiences of statelessness make them fear persecution. Yet, the courts are cautious, and the jurisprudence leaves many questions unanswered. There is a consensus that statelessness in itself does not constitute persecution, but that the withdrawal of citizenship from disfavored ethnic or religious minorities is presumptively persecutory. One court states that instances when the withdrawal of citizenship results in statelessness should be deemed persecution per se, obviating the applicant’s need to demonstrate that he or she suffered any serious harm in their daily life. This court does not distinguish between statelessness resulting from the gaps that may occur when states dissolve versus denationalization that may be decreed during civil war.
Whether the mechanism causing statelessness should matter in the context of assessing persecution is an unanswered question. So, too, is the significance of imposing naturalization obligations, including a language requirement, on lifelong residents. The circumstances in which states can legitimately refuse to renew the travel documents of longtime residents or refuse to allow them to return are further points of contention. As current upheavals in the Americas, Africa, Asia, and the Middle East have increased the numbers of stateless people in flight, there is an urgent need to develop a more comprehensive legal framework to ensure that international refugee law fully addresses the plight of stateless individuals who fear persecution.
Sunday, May 31, 2015
CNN reports that former Maryland Governor Martin O'Malley launched his presidential campaign yesterday with an appeal to the Democratic Party's progressive base as an alternative to Hillary Clinton. O'Malley governor kicked off his campaign in Baltimore, the city where he was once mayor.
O'Malley's supporters claim that he has a record of work on issues of concern to Latinos and immigrants that rivals that of Hillary Clinton. Several Latino leaders consider him a stronger ally on immigration and support of the Latino community. "Martin O'Malley, in his history as governor of Maryland, has been a real hero for the immigrant community. He not only supported many groundbreaking reforms in the state, he also became a national spokesperson for immigrant families and their human rights, especially the unaccompanied minors who arrived in droves on the border last year," said Kim Propeack, chief of political communication for CASA de Maryland - Maryland's largest immigrants services and rights organization.
O'Malley's campaign website calls for immigration reform:
"Bringing undocumented immigrants out of the shadows will grow our economy, expand our tax base, create jobs and lift wages–benefiting our country as a whole. We must boldly advance comprehensive immigration reform, while also using executive action to its full authority to end unnecessary detentions and expand deferred action. As Americans, when refugee children arrive on our doorstep, we shouldn’t turn them away—we should act like the generous, compassionate people we are."
The Obama administration's controversial family immigration detention policies continue to be in the news. Earlier this week, 136 House Democrats sent a letter to DHS Secretary Jeh Johnson asking the administration to end its family detention policy. The letter, which includes a majority of House Democrats, including Democratic Leader Nancy Pelosi and Democratic Whip Steny Hoyer, was lead by Reps. Zoe Lofgren, Lucille Roybal-Allard, and Luis Gutiérrez.
The impacts of detention of immigrant women and children in centers in Dilley and Karnes, Texas are discussed in these two pieces of commentary. Both compare modern day family immigrant detention with the U.S government's internment of the Japanese during World War II.
Carl Takei in this piece on the ACLU blog "Speak Freely" concludes:
"ICE's misguided effort to build child-friendly prison camps repeats the inhumanity that the U.S. government inflicted on Japanese-American families during World War II. If Obama administration officials implementing family detention ignore the lessons of the past, they will assure their own ignoble place in history."
In this piece on the Huffington Post, a licensed family therapist who was born in the Tule Lake internment camp concludes in a similar fashion:
"It has been a life-long mission for me to educate others about this dark chapter of American history with hopes that it would never happen again. The incarceration of innocent women and children seeking asylum in America tragically replicates the racism, hysteria and failure of political leadership of 1942."
The historical comparison of family immigrant detention and the internment of persons of Japanese ancestry is food for thought. The harshness of the policies, as well as their clear racial impacts, should cause all -- even supporters of increased immigration enforcement -- to pause to think about what we are doing as a nation to desperate people in need of help.
Saturday, May 30, 2015
Fifth Circuit Sets Oral Arguments in Texas v. United States for July 10, Panel of Judges Uncertain at this Time
The Hill reports that the Fifth Circuit has announced that it has set a date to hear an expedited appeal of District Court Judge Andrew Hanan's preliminary injunction halting the implementation of the Obama administration's expanded deferred action program. The court will hear oral arguments on July 10 in New Orleans.
Importantly, as The Hill reports,"It's not clear if the same judges who denied the administration's stay request will hear the broader appeal. The court's clerk said the judges will be announced one week before the hearing." (emphasis added).
In the ruling earlier this week on the U.S. government's motion to stay the lower court's injunction pending the appeal, Judge Jerry Smith, a Reagan appointee, and Judge Jennifer Elrod, a George W. Bush appointee, agreed that the stay motion should be denied. In dissent, Judge Stephen Higginson, an Obama appointee, argued that the stay should have been granted and that, through "judicial fiat," the Obama program had been wrongfully held up. Because of the strong views in the majority opinion, one would predict that, if the same panel that decided the stay motion decides the merits, the U.S. government will likely lose.
Ian Smith in the National Review on Prosecutorial Discretion, the Fifth Circuit Ruling in Texas v. United States, and Reliance on One "Liberal" Immigration Law Professor
There has been considerable commentary this week about the U.S. Court of Appeals for the Fifth Circuit's 2-1 ruling denying a stay of the district court's preliminary injunction preventing the implementation of the Obama administration's expanded deferred action (including DAPA) program. This National Review article by Ian Smith focuses on Judge Higginson's dissent and the administration's reliance on the concept of prosecutorial discretion as the justification for the deferred action program.
In criticizing the prosecutorial discretion justification, the National Review article relies heavily on an article by Professor Peter Margulies, described as a "liberal law professor (and immigration attorney)" that is forthcoming in the American University Law Review. Here is the abstract to that article:
"Stakes are high in the current debate about President Obama’s immigration reform initiative, Deferred Action for Parents of Americans (DAPA). Given the gridlock in Congress, it is tempting to read the Immigration and Nationality Act (INA) as authorizing work authorization and a reprieve from removal for undocumented migrants. Unfortunately, statutes, like facts, are stubborn things. DAPA is sound policy, but it is inconsistent with core policies in U.S. immigration law.
The INA is a comprehensive framework that both enables legal immigration and deters unlawful migration. To accomplish the latter, its provisions discourage unlawful entry, presence, and work, while its enumerated categories of legal status block unlawful entrants’ acquisition of status through post-entry U.S. citizen children. Moreover, Congress for over a quarter-century has sought to limit discretion in the executive branch that undermines the INA’s deterrence goals. DAPA’s discretionary grant of benefits to four million foreign nationals would render Congress’s limits superfluous.
Judicial review of DAPA is appropriate to restore the immigration framework’s balance. Because DAPA will have a significant impact and limits officials’ discretion, it is a legislative rule requiring resort to the notice and comment procedures of the Administrative Procedure Act. While DAPA’s supporters assert that it constitutes an unreviewable exercise of prosecutorial discretion under the Supreme Court’s decision in Heckler v. Chaney, DAPA’s broad eligibility criteria remove it from the realm of individual enforcement decisions that Chaney shielded from judicial review. Upon review, DAPA is unworthy of judicial deference, because it fails the “common sense” test outlined by the Supreme Court in FDA v. Brown & Williamson. Given Congress’s recent efforts to curb immigration officials’ discretion, it is implausible that Congress would have authorized the blanket discretion that DAPA entails.
Despite its soundness as policy, DAPA’s fundamental failing as law is its lack of an intelligible limiting principle. While the Obama administration concedes it cannot grant deferred action to all unlawful migrants, it supplies no principled basis for distinguishing the four million potential DAPA beneficiaries from the seven million unlawful migrants left out in the cold. That deficit should be of concern to immigration advocates, who have made a Faustian bargain in supporting the executive branch. Advocates and all devotees of our constitutional order would do well to remember that executive discretion that appears benevolent today can take on a decidedly different cast with changes in the White House. To avoid unwelcome surprises, the worthy project of immigration reform should remain where the Constitution placed it: in Congress."
Professor Margulies' position is contrary to that expressed by 109 immigration law professors in an amici brief urging reversal of the preliminary injunction by the Fifth Circuit.
Immigration Article of the Day: Constructing Crimmigration: Latino Subordination in a 'Post-Racial' World by Yolanda Vázquez
Friday, May 29, 2015
Immigration Article of the Day: Asylum Discord: Disparities in Persecution Assessmentsby Scott Rempell
Asylum Discord: Disparities in Persecution Assessments by Scott Rempell, South Texas College of Law May 29, 2015 Nevada Law Journal, Vol. 15, No. 1, 2014
Abstract: Asylum claims often hinge on applicants’ ability to prove that they suffered or fear harm that rises to the level of persecution. Nevertheless, scholars have not comprehensively surveyed how courts measure harm and to what extent courts’ harm assessments are inconsistent. This study undertakes the task. It reviews approximately 900 published asylum cases decided by the federal appellate courts from 1996 through 2013, since the appellate courts have served as the final arbiter for when harm is sufficiently severe. From these 900 cases, the study isolates the decisions where an appellate court specifically determined whether a set of harms is necessarily sufficient to establish an applicant was persecuted. After isolating these decisions, the study then categorizes them based on the type, frequency, and duration of harms sustained by the applicants.
The results demonstrate incredible divergences in most of the segmented categories, from a single instance of abuse and detention to prolonged psychological suffering. The data reveals that asylum applicants’ ability to avoid deportation may depend on the appellate court jurisdiction they happen to fall under or even the particular judges within a given circuit that happen to be assigned to their cases. Disparities in how courts assess and measure harm also contribute to the inconsistent persecution outcomes. The article recommends heightened scrutiny of whether being persecuted requires systematic abuse, increased standardization of harm severity thresholds, greater attention to the details of harm inquiries, and more precise opinion drafting.
Earlier this week, Jerry Markon of the Washington Post examines the recent decrease in undocumented Mexican migration to the United States and offers a variety of possibilities for the recent trends. U.S. government officials are quick to credit increased border enforcement with the reduction in the undocumented immigrant population. Others offer other explanations. Noted demographer Douglas Massey claims that increased enforcement had nothing to do with the decline in unauthorized immigration and sees decreasing fertility rates in Mexico as contributing to reductions in immigration.
Thursday, May 28, 2015
As KJ blogged earlier, the annual Law & Society is happening now.
There are many panels on immigration and citizenship. You can do a search here for panels. (Not sure these links will work but it's worth trying: click here for the 21 panels that used the term "immigration," here for the 10 panels that used "citizenship," here for the 3 panels that used the term "crimmigration" and here for the 2 panels that used the word "deportation."
Today, at 2:45 to 4:30 PM, I will be participating in a panel, "Contextualizing Citizenship."
Ruth Gomberg-Munoz, Loyola University Chicago
Non-Citizen Nationals: Neither Citizens Nor 'Aliens'
Rose Cuison-Villazor, UC Davis School of Law
This disturbing video will not improve the public perception of the Border Patrol. A New York state college student says Customs and Border Protection agents threw her to the ground and tasered her after she was stopped earlier this month at a border checkpoint in Lisbon, New York.
The conference theme: What has law accomplished in the Global North and Global South? Its champions have promised much—the spread of human rights and the rule of law, the elimination of discrimination and the protection of the vulnerable, the lure of economic development and the fostering of global trade, endowments of human dignity and restraints on economic rapacity. Its critics observe law as an instrument for repression, hegemonic control and infringements on privacy and intrusive surveillance (in the context of a never-ending and ubiquitous ‘war against terror’), as a weapon against free speech or political opposition, as a tool of economic exploitation and domination, and as a retreat from politics. The 2015 LSA annual meeting will engage law’s promises and law’s pathos in domestic and transnational contexts, through plenaries addressing the roles of law in the war on terror, in climate change, in emancipation and protection of the world’s most vulnerable populations, and in law’s relationships with religions.
Immigration Article of the Day: Immigration and Disability in the United States and Canada by Mark Weber
Immigration and Disability in the United States and Canada by Mark C. Weber, DePaul University College of Law May 15, 2015 Windsor Yearbook of Access to Justice, Forthcoming
ABSTRACT: Disability arises from the dynamic between people’s physical and mental conditions and the physical and attitudinal barriers in the environment. Applying this idea about disability to United States and Canadian immigration law draws attention to barriers to entry and eventual citizenship for individuals who have disabilities. Historically, North American law excluded many classes of immigrants, including those with intellectual disabilities, mental illness, and physical defects, and conditions likely to cause dependency. Though exclusions for individuals likely to draw excessive public resources and those with communicable diseases still exist in Canada and the United States, in recent years the United States permitted legalization for severely disabled undocumented immigrants already in the country, and both countries abolished most exclusions from entry for immigrants with specific disabling conditions. Liberalization also occurred with regard to U.S. naturalization requirements.
Challenges continue, however. Under U.S. law, vast discretion remains with regard to the likely-public-charge exclusion, because consular officers abroad decide unilaterally whether to issue immigrant visas. Moreover, conduct related to mental disability, including petty criminality, can result in removal from the United States, and individuals with mental disabilities have only modest safeguards in removal proceedings. In Canada, families who have children with disabilities find themselves excluded from legal status because of supposed excessive demands on public resources, although an individual’s disability may provide grounds for avoiding removal in some cases. The relaxation of some exclusions in Canada and the U.S. and of U.S. requirements for citizenship illustrates a significant, though conspicuously incomplete, removal of disability-related barriers in North American law and society.
Facing unprecedented numbers of asylum seekers and other migrants seeking to gain entry to Europe via the often perilous Central Mediterranean route, European policymakers are drawing upon an incomplete evidence base as they seek to stem the flow of boats that are largely responsible for the inflow of more than 220,000 people in 2014, a new Migration Policy Institute Europe report argues.
The report, Before the boat: Understanding the migrant journey, makes the case that policymakers are making decisions ‘while in the dark’ about the decision-making process and the assessment of risk that migrants face at every step of the journey. They also lack detailed insight about the business model of the smuggling networks that are delivering often desperate people to Europe’s doorstep in exchange for significant remuneration, argue authors Jacob Townsend and Christel Oomen of Farsight, a Brussels-based social enterprise with a focus on migration that has organised interviews with thousands of migrants and would-be migrants.
The report, which draws on findings from migrant interviews, suggests that prior research has been limited in scope, hampered by a number of factors, including a ‘destination bias’ that analyses movements from the perspective of destination countries and successful migrants, not those who abandoned their quest en route or before setting off. There is also a dearth of research on the organisational structures and the political economy of migrant-smuggling networks, which hampers attempts to crack down on them.
The authors also challenge the idea that migrants must have been unaware of the risks of maritime crossings or have received inadequate information. Interviews with migrants, the authors report, suggest they are highly attuned to threats, and may accord more importance to the goal of long-term settlement than risks to immediate safety.
The report is the latest in a research project, ‘EU Asylum: Towards 2020’, conducted by MPI Europe and International Migration Institute/Open Society Foundations. For earlier reports in the project, visit here.