Colorlines reminds us that June is Immigrant Heritage Month in the United States. This year, nonprofit Welcome.us is celebrating America’s diverse group of immigrants with the “I Am An Immigrant” campaign. The first video, posted yesterday (June 1), features stars like Lupita Nyong’o, Rosario Dawson and Wilmer Valderrama talking about how most Americans are the descendants of immigrants and why it’s important to share personal stories of the immigration experience.
Per the video’s description, the campaign seeks to “encourage all of us to explore our individual heritage and recognize our distinct and shared experiences,” and recognizes that “we all have our piece in the American story, whether as a new immigrant, native to this land, a descendent of slavery or those who came to our nation seeking a better life.”
On Wednesday, June 8 Intelligence Squared U.S. and the National Constitution Center presented the latest in an ongoing series of constitutional debates, on the motion "The President Has Usurped Congress's Constitutional Power." The Constitution provides that "All legislative powers herein granted shall be vested in a Congress of the United States," and it goes on to grant Congress a list of enumerated powers. But some say the executive branch has taken more and more of those powers for itself, both domestically and overseas. Is Congress still the most powerful branch, or is this the era of the imperial presidency? Four highly-regarded constitutional authorities will debate this question. The debate will also stream live online, then air soon after as part of the syndicated public radio show and podcast "Intelligence Squared U.S."
Arguing for the motion:
Michael McConnell: Director, Constitutional Law Center & Professor, Stanford Law SchoolMichael McConnell is the Richard and Frances Mallery Professor of Law and director of the Constitutional Law Center at Stanford Law School, as well as senior fellow at the Hoover Institution. A leading authority on constitutional history and constitutional law, he is author of numerous articles and co-author of two casebooks, including The Constitution of the United States. Before joining Stanford in 2009, he served as a circuit judge on the U.S. Court of Appeals for the Tenth Circuit. He has argued 14 cases in the U.S. Supreme Court, served as assistant to the Solicitor General in the Department of Justice, under President Ronald Reagan, and was a member of the President's Intelligence Oversight Board from 1988 to 1990.
Carrie Severino: Chief Counsel & Policy Director, Judicial Crisis Network Carrie Severino is chief counsel and policy director of the Judicial Crisis Network. In that capacity she has testified before Congress on assorted constitutional issues and briefed senators on judicial nominations. She has written and spoken on a wide range of judicial issues, particularly the constitutional limits on government, the federal nomination process, and state judicial selection. Severino regularly files briefs in U.S. Supreme Court cases, including Hobby Lobby v. Burwell, McCullen v. Coakley, and Schuette v. BAMN. She has also filed briefs in the Halbig and King cases challenging the Obama Administration's implementation of Obamacare. She was previously a law clerk to U.S. Supreme Court Justice Clarence Thomas and to Judge David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit.
Arguing against the motion:
Adam Cox: Professor, New York University School of Law: Adam Cox is the Robert A. Kindler Professor of Law at New York University School of Law, where he teaches and writes about immigration law, constitutional law, and democracy. Before coming to NYU, he was a professor of law at the University of Chicago Law School. He clerked for Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. After his clerkship he served as the Karpatkin Civil Rights Fellow for the American Civil Liberties Union, where he was involved in racial profiling and public defender reform litigation, and practiced at Wilmer, Cutler, and Pickering, where he first litigated immigration cases.
Eric Posner: Professor, University of Chicago Law School Eric Posner is the Kirkland and Ellis Distinguished Service Professor of Law Arthur and Esther Kane Research Chair at the University of Chicago Law School. His current research interests are international law and constitutional law. His books include The Twilight of International Human Rights (2014), Economic Foundations of International Law (with Alan Sykes) (2013), Contract Law and Theory (2011), The Executive Unbound: After the Madisonian Republic (with Adrian Vermeule) (2011), The Perils of Global Legalism (2009). He writes a column for Slate on legal issues. He is a fellow of the American Academy of Arts and Sciences and a member of the American Law Institute.
Last Thursday, I had the pleasure of sitting in on a Law & Society panel regarding The Politics of Respectability and Immigrants.
Angela Banks (William & Mary) introduced the panel by explaining "respectability" - it's a political strategy used by “any social group subject to marginalization” whereby they argue for equal rights based on the having the same values, norms, and practices as mainstream society. While academic discussion of respectability politics has, to date, largely focused on African Americans, this panel explored the concept in regards to immigrant communities.
Mariela Olivares (Howard) spoke about the "power of narrative" in immigration politics (e.g. "surge" and "flood" versus "refugees"). And, in particular, she identified the "narrative dilemma" that occurs when pushing the respectability of one group necessarily involves the denigration of group outsiders ("families not felons").
Liz Keyes (Baltimore) spoke about the "crispness" of the DREAMer narratives that has driven their political gains. But she sees problems at the reform level given that 85% of the undocumented population do not fit within the DREAMer narrative and, in the end, deferred action with its lack of durability is a "crappy outcome." She also sees the DREAMer success as shrinking discretion on an individual basis. (See this post about her client Juan who has been affected by shrinking discretion).
Jennifer Lee (Temple) spoke about narratives regarding immigrant workers and, in particular, how workers might "own, shape, and deploy" narratives. She spoke about how the narrative of the "good and hard [migrant] worker" touches on the universal message of those who want to improve their family's lot, and she identified the other important narrative of victimization of migrant employees by US employers who do not obey the law. She also noted the downsides to narrative, "out groups" of those who do not and cannot belong and "essentializing" or defining individuals by virtue of the low wage jobs they hold. These are perils to "master framing" that may be remediable if workers themselves choose their own framing.
Muneer Ahmad (Yale) spoke about the framing of “earned citizenship” as a moral and political issue. He described the origins of the concept (IRCA) and it's intended goal (to counter the bad amnesty narrative). Earned citizenship was a good counterbalance to fears of amnesty by suggesting that individuals obtained citizenship based on merit - a message that evolved in 2013 to a multi-stage test of cultural competency, taxes, and economic contributions. But, there is a significant downside of placing migrants constantly in a deficit where status earned is consistently precarious until citizenship is obtained.
Jayesh Rathod (American) spoke about how respectability is already incorporated into immigration law through the concept of good moral character, a concept that's been around since 1790. He looks at good moral character through the lens of history (where good moral character reflects both norms and nativism), by way of a systemic analysis (seeing good moral character applied inconsistently across immigration categories) and teleologically (looking for the purpose driven framework that underlies the immigration law).
A fascinating panel. Look for these great papers to come!
In May, TheDream.US scholarship fund announced a new scholarship program that will allow young immigrants who have received either Deferred Action for Childhood Arrivals, or DACA, or Temporary Protected Status to obtain an affordable college education. Specifically, the new program—the Opportunity Scholarship—is designed for young people from 16 so-called locked-out states that do not offer in-state tuition rates to DACAmented students or that bar such students entirely from enrolling in state institutions. These are students who have, until now, largely been unable to access an affordable college education.
Immigrants detained in California who have an attorney succeed in their cases more than five times as often as those who don’t, according to a new study released today.
The study also found that nearly 70 percent of those who are detained go unrepresented in their deportation cases, often because they cannot afford to hire a lawyer. Unlike criminal defendants, immigrants are not entitled to court appointed attorneys even though a deportation order can often result in life or death consequences for those forced to return to countries beset by drug cartels and gang violence.
The study, authored by the newly formed California Coalition for Universal Representation, coincides with a campaign to urge California’s state and local governments to create publicly-funded programs to provide counsel to detained immigrants in deportation proceedings who cannot otherwise afford an attorney. The proposal is modeled after a program instituted by New York City, which began as a pilot in 2013 and expanded to full coverage for all detained immigrants the following year. The campaign will kick off with a public event at Loyola Law School Wednesday evening at 6-8 p.m, featuring a panel of guest speakers, including community members directly affected by detention.
“The stakes of these proceedings can be literally life and death. In the face of DHS’s threatened raids, and as thousands seek refuge from Central America’s violence, legal representation is more crucial than ever,” said Caitlin Bellis, Attorney and Liman Fellow at Public Counsel.
The tragic case of Erick Naum Castro Peña illustrates the potential consequences of immigration proceedings. Erick fled Honduras after gang members murdered his father, a human rights activist. After seeking asylum in the United States, Erick spent 11 months detained, never met a lawyer, and was ultimately deported back to Honduras, where he was murdered soon after by the same gangs who killed his father and threatened him. “I want justice for my son,” says his mother, Clara Lilian Peña, a San Fernando Valley resident, “and I do not want anyone else to have to suffer what he suffered for seeking sanctuary.”
In addition to the risks faced by asylum seekers, the new report shows that thousands of California children are at risk of being placed in foster care upon the detention or deportation of a parent; many others endure trauma with long-term health consequences, leading to poorer educational and health outcomes. Moreover, immigration-related arrests cause household income to fall to half on average, and leave many households without anyone earning wages. As a result, loved ones go hungry and struggle to remain in their homes.
“Deportations are dividing families and destroying communities. Too often people are at a loss to navigate a system which often confounds even the experts,” said Emi MacLean, Attorney at National Day Laborer Organizing Network. “Providing counsel will alleviate human suffering, keep California children out of foster care, and improve health and educational outcomes.”
“The reports are in from New York City’s program, and they’re clear: universal representation is a dramatic success,” said Stacey Strongarone, Deputy Director of the Center on Immigration and Justice of the Vera Institute of Justice, which administers the New York program.
“The federal government will not act, but California can follow New York City’s example and provide counsel to all detained immigrants who cannot afford a lawyer,” concluded Shiu-Ming Cheer, Senior Staff Attorney and Field Coordinator for the National Immigration Law Center.
Trump has said it is "just common sense" that Curiel’s ties to Mexico explain his ruling. Curiel, born and raised in Indiana, had parents who were naturalized U.S. citizens from Mexico. "He is a member of a club or society, very strongly pro-Mexican, which is all fine," Trump said on Face the Nation on June 5. "But I say, he's got bias. I want to build a wall." Is the "club" "strongly pro-Mexican" as Trump?
Politifact concluded that the claim was MOSTLY FALSE. The group in question is the California La Raza Lawyers Association. It dates back to 1977 and one of its founders was former California Supreme Court Justice Cruz Reynoso (Reynoso published his criticism of Donald Trump's comments about Judge Curiel in the Washington Post.). The group’s immediate past president, Joel Murillo, told us that it was formed in response to stereotyping coming from judges and lawyers. "There were judges on the bench saying people with Spanish surnames were prone to be savages," Murillo said. "When we tried to integrate with the mainstream bar association, we were denied. We were marginalized. The only people who were willing to work with us were us." Murillo says the days of stereotyping are over, and the group now focuses on the professional development of Latino lawyers and encouraging students to pursue a career in law. He called Trump’s description of the association as very strongly pro-Mexican a "misnomer." Murillo said most of the group’s recent work targets improving the quality of education for all students in California.
Professor Christina Duffy Ponsain the New York Times writes that the Supreme Court will soon decide whether to grant certiorari (here is the petition) in Tuaua v. United States, which poses the question of whether the Citizenship Clause of the 14th Amendment applies to American Samoa. The 14th Amendment to the Constitution guarantees citizenship to “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” The United States annexed the eastern half of a group of Pacific islands known as the Samoas at the end of the 19th century. As a result, those islands became American Samoa. Surely, people born in American Samoa are legally speaking born in the United States and therefore citizens by birth. Easy, right? Not so easy. The answer is that no one knows for sure.
"The 14th Amendment is supposed to protect people not only from arbitrary and unjust denials of their citizenship, but from uncertainty about whether they are citizens at all. Both the insult of second-class status and the injury of uncertainty are the ugly legal legacies of 19th century American expansionism. The court should hear the Tuaua appeal and clarify the scope of the Citizenship Clause once and for all."
Legendary singer/songwriter Yusuf/Cat Stevens has launched a campaign to help child refugees in Europe with a charity gig on 14th June at London’s Central Hall, Westminster, and the release of a unique single, He Was Alone.
Watch He Was Alone
You can help our campaign by using the hashtag #youarenotalone on social media, buying a ticket for the concert or simply donating whatever possible towards the appeal at the following charities:
Known as “The Salad Bowl of the World,” California’s Salinas Valley became an agricultural empire due to the toil of diverse farmworkers, including Latinos. A sweeping critical history of how Mexican Americans and Mexican immigrants organized for their rights in the decades leading up to the seminal strikes led by Cesar Chavez, this important work also looks closely at how different groups of Mexicans—U.S. born, bracero, and undocumented—confronted and interacted with one another during this period. An incisive study of labor, migration, race, gender, citizenship, and class, Lori Flores’s first book offers crucial insights for today’s ever-growing U.S. Latino demographic, the farmworker rights movement, and future immigration policy.
Lucydalila Cedillo is the 2016 recipient of the University Medal as the top graduating senior at UC Davis. She talks about growing up in a rough neighborhood in Los Angeles and her time at UC Davis. Now bound for a doctoral program at Harvard University and a career as a professor, the animal science major is the top graduating senior at UC Davis. She will receive the University Medal at the 2 p.m. commencement of the College of Agricultural and Environmental Sciences on Friday, June 10.
MALDEF has issued the following press release in connection with the latest developments in the district court in Texas v. United States:
in TexasBROWNSVILLE, TX – MALDEF was in United States District court today seeking to stop the federal government’s release of personal information on ten of thousands of young immigrants. In addition, yesterday MALDEF filed papers in the Fifth Circuit Court of Appeals in New Orleans seeking to block the order of Judge Andrew Hanen requiring the United States to turn over to him the names, addresses and other personal information of approximately 50,000 immigrant youth who received three–year grants of Deferred Action for Childhood Arrivals (DACA) between November 2014 and February 2015.
The efforts of MALDEF, representing the only intervening parties in the case of Texas v. United States, together with the United States, paid off today when Judge Hanen agreed to stay his order requiring the information be turned over. Therefore, no information will be turned over until at least August 22, when Hanen will again consider the matter. In the meantime, MALDEF will pursue its appeal of the order.
“This order cannot survive an appeal because there is no legitimate basis for punishing innocent immigrant youth, who are not party to the case before Judge Hanen, in order to address alleged misconduct by attorneys for the United States,” stated Thomas A. Saenz, MALDEF President and General Counsel. “We are grateful that this egregious order will not go forward while the matter is appealed.”
Judge Hanen has claimed he wants the personal information of the estimated 50,000 immigrant youth, who are innocent non-participants in the case, so he can consider giving it to the states who have sued the Obama Administration over Deferred Action for Parents of Americans (DAPA) and the expansion of DACA. His order is intended to sanction the United States for alleged misconduct by its attorneys earlier in the case, but would clearly inflict significant punishment on immigrant youth rather than the government or its attorneys.
In addition to the involvement of three mothers who have stepped forward to represent the views of those eligible for DAPA in this litigation, this latest effort included important written testimony from Javier H.G. and Cristina R., two courageous Texas immigrant youth who provided statements explaining the devastating impact of a possible court order disclosing their names and other personal information to Judge Hanen.
“Today the voices of DACA recipients were front and center. We are pleased that Judge Hanen agreed to stay his order, and we look forward to pursuing the case on appeal in the Fifth Circuit,” stated Nina Perales, MALDEF Vice President for Litigation, who argued before Judge Hanen today.
The U.S. Supreme Court heard MALDEF’s oral argument in Texas v. U.S., the pivotal case challenging the constitutionality of President Obama’s executive actions on immigration, on April 18, 2016. MALDEF represents three mothers from South Texas who were the only parties granted intervention in the case, and who intend to apply for Deferred Action for Parents of Americans (DAPA) once it is implemented. A decision in the case is expected no later than June 30.
UPDATE (June 7, 3:10 p.m. PST): For Lyle Denniston's summary and analysis of the order on SCOTUSBlog, click here. Denniston views the stay order as '[c]learing the way for the Supreme Court to rule on [the Obama administration's expanded deferred action program] policy without a distraction."
It's from the Borowitz Report, so not actually true. But these days, it's hard to tell the difference between truth and comedy with Trump's outlandish claims, particularly his latest about Judge Curio and his - real - support for "ethnic and religious litmus tests for federal judges." See this New York Times editorial board for more on on this topc. (Revised 6/7/16, with the embarrassing admission that I didn't catch on to the satirical nature of the LSAT books column when I posted it yesterday.)
As Loving Day on June 12 approaches, the Los Angeles Timeshas collected some fascinating insights from multiracial people. Of course, Mildred and Richard Loving got married in 1958, but in their home state of Virginia, they were convicted for marrying outside their races. It wasn’t until nine years later that the U.S. Supreme Court in Loving v. Virginiaunanimously ruled that state bans on interracial marriage were unconstitutional.
Jeanne Kuang in the Chicago Tribune reports on something that immigration attorneys face regularly -- the backlogged immigration courts. There are more than 20,000 deportation cases pending in Illinois immigration courts, a number almost five times higher than the number of cases a decade ago. This means the average wait time for a hearing date at the Chicago courthouse is now nearly three years.
The number of pending removal cases in the U.S. immigration courts has steadily grown over the past 10 years, from about 170,000 in fiscal year 2006 to over 485,000 this fiscal year, according to records analysis by Syracuse University's Transactional Records Access Clearinghouse.
About 20 percent of those cases are applications for asylum, in which an immigrant has to prove he is subject to persecution or danger in his home country. Other deportation cases involve defenses such as people who have children who are U.S. citizens or people who are victims of domestic violence.
The backlog is in part due to a 2014 influx of Central American immigrants and a global refugee crisis. The backlog has stretched out the wait times for immigrants, leaving them in legal limbo for years as they await their day in court. At Chicago's courthouse, the average case has a wait time of 1,046 days.
IOM believes that climate migrants do exist. Empirical research over the years has established direct links between the adverse impacts of climate change and migration (IPCC, 2014)*, and the recently signed, groundbreaking Paris Agreement clearly highlights the need to protect migrant rights.
This does not negate the multi-causality dimension of migration and the fact that migration drivers are diverse and combine with the environmental factor. It is essential to name the challenge or problem first, before prescribing the solution. Hence it is critical that climate migrants and climate migration are both properly defined.
IOM’s definition is non-normative. It is non-prescriptive. It is not a legal standard. So what is it? It is an advocacy definition that brings visibility to those migrants outside of the public eye and places them on the policy agenda. It is a working definition that allows IOM to support its Member States and migrants communities in their fight for better lives in a changing climate.
Semantic and legal considerations are critical and they should not be ignored. But it is essential to move ahead with more neutral and acceptable options and prevent any further delays in supporting those migrating due to climate impacts.
In the desert of Guajira, the northernmost part of Colombia, problems linked to severe water scarcity have been growing for half a century, constituting the main trigger for migration in the region. More than 400 families living in this area suffer from drought, its consequences on the availability of natural resources and its impact on health. Forced to migrate to Venezuela to ensure their survival, Wayuu communities always return home due to their commitment to their ancestral heritage.
Abstract: This chapter is an engagement with the Obergefelldecision to suggest one way in which the decision’s articulation of the citizen’s relationship with the government (or ‘the State,’ as is the preferred nomenclature among some) is quite groundbreaking. American law — and American values — has a mythical and actual embrace of privacy as a valued and near-inviolable right. The belief that American citizens have a zone of privacy, a right to remain free from government intervention, has captured the imagination of both liberals and conservatives when embracing the rights to abortion, family planning, and gun ownership. However, instead of recognizing the harm that the State can have when intruding on a citizen’s fundamental right, Obergefell is predicated upon a recognition that some harms — such as humiliation — are inflicted when the State fails to intervene and recognize a same-sex couple (and their child) as a family. Obergefell’s remarkable anointment of privacy as a guarantor of rights is a major departure from the position widely accepted before 2000, and this chapter asks how this newly minted right — or “Obergefell’s sword” as phrased by Justice Roberts — might be applied to families in which some members are U.S. citizens and some are not.
"Judge Hanen’s order dated May 19, 2016 reprimanding thousands of Department of Justice lawyers for unethical conduct is astounding because it does not even appear that their conduct was unethical.
Much has already been written about Judge Hanen’s strange order. Professor Orin Kerrquestions whether the judge can even impose ethics classes on hundreds of DOJ lawyers who are not remotely connected to the case. Professor Shobha Sivaprasad Wadhia is justifiably concerned that the order, in addition to reprimanding DOJ attorneys, also threatens to ‘out’ the names of more than hundred thousand recipients of the Deferred Action for Childhood Arrival (DACA) program who were granted 3 year extensions instead of 2 year extensions. Professor Stephen Legomskydoes not even think the DOJ lawyers did anything wrong.
I completely agree." (emphasis added).
The U.S. government has sought review of the sanctions order in the U.S. Court of Appeals for the Fifth Circuit. Lyle Denniston on SCOTUSBlog analyzes the latest developments in the district court here.
As ImmigrationProf readers know, there is a campaign in the United Kingdom on a vote on its possible departure from the European Union. Will Britain exit (Brexit) the EU? A friend vacationing in London sent me message and picture that gives me hope "So far have only seen `remain' signs for Brexit!"
Click here for up to date news on the Brexit referendum campaign.