Sunday, March 8, 2015
"If the worst in American life lurked in [Selma's] dark streets, the best of American instincts arose passionately from across the nation to overcome it."
— Dr. Martin Luther King, Jr., March 25, 1965
This weekend, the First Family traveled to Selma, Alabama to commemorate the 50th anniversary of the marches from Selma to Montgomery. Learn about the history of the marches. Listen to the stories of those who marched. And tell us how you'll honor their legacy and #MarchOn.
As we have blogged before, the immigrant rights movements has much to learn from Dr. King and the civil rights movement. President Obama has said that deporting immigrant children is not true to the spirit of Selma.
Saturday, March 7, 2015
Immigration Article of the Day: Cascades Wanted: Searching for Consistency in Asylum's Protected Grounds by Isaac T. R. Smith
Cascades Wanted: Searching for Consistency in Asylum's Protected Grounds by Isaac T. R. Smith, University of Iowa, College of Law, Iowa Law Review, Forthcoming
Abstract: Currently, international and domestic immigration law identifies persecution on account of membership in a “particular social group” as one basis for granting an individual asylum. The dominant approach in both domestic and foreign analysis for defining what constitutes a “particular social group” has been to look for an immutable characteristic that all members of the group share. This was the approach originally adopted in the landmark Board of Immigration Appeals (“BIA”) ruling Matter of Acosta. However, since that ruling, the BIA has adopted an additional inquiry into the “social visibility” of potential particular social groups. Circuit courts are divided on whether such a requirement is valid, and the definition of “particular social group” has strayed from its traditional sources grounded in the jurisprudence of the other protected grounds, such as political opinion and the interpretation of the UNHCR Guidelines. The Ninth Circuit’s decision in Henriquez-Rivas v. Holder moved the “social visibility” requirement closer to conformity with political opinion jurisprudence and the UNHCR Guidelines. This Note argues that the BIA should adopt a cascading analysis for “particular social group” determinations that conforms to the Guideline’s use of social perception and the encompassing nature of the political opinion analysis.
Friday, March 6, 2015
The University of San Francisco School of Law is opening its Immigration and Deportation Defense Clinic to enrollment to non-USF law students this summer. 2-5 units of credit are available. The clinical course runs from June 8 to July 24.
Students enrolled in this clinic principally would represent unaccompanied alien children (UACs) and possibly their relatives in all phases of immigration proceedings, at the asylum office, the immigration courts, and adjudication offices of US Citizenship and Immigration Services. They also will represent minors in probate and family law court to seek guardianships or custody orders where appropriate to qualify for Special Immigrant Juvenile Status. While the principal focus of the clinic will be on UAC and related cases, other deportation defense cases will likely be part of the caseload, as well as cases involving deferred action for childhood arrivals (DACA program) and preparation of cases that fall under President Obama’s deferred action program for parents of U.S. citizens. During the week of July 6 to 10, clinic students will travel to an immigration detention facility in Texas to represent detained border crossers. Fundraising for assistance with travel expenses for this trip will be required. Bilingual Spanish-speaking students are preferred. Please email Professor Bill Hing (firstname.lastname@example.org) with any questions.
Prerequisites: Recommended: Immigration Law or relevant experience. Enrollment by consent of instructor.
The Associated Press reports that an independent autopsy of an unarmed Mexican man killed by the police in Pasco, Washington showed he was shot up to seven times, including twice from behind, contradicting earlier statements from the authorities. The autopsy found that Antonio Zambrano-Montes, 35, was shot seven times, with at least two entry wounds on the back of his body. The new report differs sharply with statements made by local law enforcement authorities.
A a spokesman for the special unit investigating the Feb. 10 shooting said Mr. Zambrano-Montes had been struck by five or six bullets, but none from behind. The killing prompted calls for a federal investigation and a series of demonstrations.
Congress continues to examine the issues surrounding immigration reform. In previous research, the American Action Forum (AAF) detailed the economic benefits of comprehensive immigration reform, including how reform of the core visa system increases annual GDP growth by a percentage point over 10 years, and reduces the federal budget deficit by $2.7 trillion. Today, AAF released new research examining the budgetary and economic costs of alternative strategies toward undocumented immigrants.
“The status quo is unattractive to all parties — progressive and conservative. One option, legalization, has been heavily discussed and studied in the past. At the other end of the spectrum is a second strategy — full implementation of current law. The economic implications of this strategy are a dramatic reduction in the labor force, a smaller economy, and new demands for taxpayer dollars approaching half a trillion dollars,” said AAF’s President Douglas Holtz-Eakin.
The AAF research explores the economic implications of removing all undocumented immigrants and found that:
• the labor force would shrink by 11 million workers;
• the economy would shrink by nearly 6 percent or $1.6 trillion; and
• the federal government would have to spend between $400 billion to $600 billion to address the 11.2 million undocumented immigrants while preventing additional unlawful entry.
As its moniker suggests, the ImmigrationProf blog focuses on immigration matters. Latinos as a group are concerned with immigration but, as this Media Matters report suggests, that is not the only issue about which the group cares deeply.
Media Matters analyzed discussions on seven English-language Sunday shows -- ABC's This Week, CBS' Face the Nation, Fox Broadcasting Co.'s Fox News Sunday, NBC's Meet the Press, CNN's State of the Union, and MSNBC's Up with Steve Kornacki and Melissa Harris-Perry -- and the two most important Spanish-language Sunday shows -- Telemundo's Enfoque and Univision's Al Punto. The analysis covered 18 weeks of shows, which included the peak of the 2014 midterm election season and its aftermath. These shows affect the political agenda and policy conversations -- conversations that become increasingly important in election season.
This analysis highlights two symptoms of this single-issue syndrome on Hispanic inclusion. On English-language shows, Hispanic guests are treated as experts in only one subject, rarely invited to discuss issues other than immigration, and the Spanish-language shows prioritize immigration coverage over discussions of other issues that Latinos have identified as important to them.
Politico reports that child migrants face "uneven justice" in their search for humanitarian relief in the United States. The deciding factors are: (1) access to counsel and (2) location of the immigration court. (No surprise there.)
What did come as a surprise to me was to learn that "fully 88 percent of the removal orders issued since July have gone to children without an attorney." Wow.
Politico also reports that "a juvenile assigned to judges in Texas, North Carolina and Georgia in the past 16 months was at least three times more likely to receive such an order than a child in California, Florida or New York."
A class action has been filed by the American Immigration Council, with co-counsel American Civil Liberties Union, Northwest Immigrant Rights Project, Public Counsel, and K&L Gates LLP, calling for appointed counsel for children in immigration proceedings. You can find all of the materials for that lawsuit here.
In the film, "Animal House," Dean Wormer puts the Delta Chi fraternity on double secret probation. It seems now that the CBP may have something called "internal expedited removal," that could have been used on a U.S. native born citizen showcased in Olivas v. Whitford (SD California 2015). The petitioner tried to secure a visa for his wife. Because his mother was undocumented when she gave birth to him in LA in 1969, she waited five months to file for a birth certificate. The US Consulate in Cuidad Juarez asked to interview the mother and then coerced into signing a declaration that she had run a scam to secure a false birth certificate for her son, the petitioner for his wife's visa.
On August 23, 2011, CBP officers confiscated Plaintiff's birth certificate and Social Security card and removed him to Mexico. CBP officers gave Plaintiff a Notice to Appear which did not indicate a date or time for Plaintiff to appear for immigration proceedings. The officers instructed Plaintiff to call the immigration court system hotline to learn when his hearing would take place. Plaintiff diligently called the automated hotline twice a week for two years, but the response remained the same: either the case was not filed with the court or there is no match for the "Alien Number" that is listed on the Notice to Appear. Id. ¶ 23.
Things went from bad to worse for Mr. Olivas.
Plaintiff last visited the Calexico West Port of Entry on or around February 26, 2013. Plaintiff explained that he is a U.S. citizen and asked CBP officers when he would have a hearing in front of a judge and how he could obtain a copy of any removal order issued against him. "CBP Officer Frank Hernandez told [Plaintiff] that if he returned to the Port of Entry, CBP officers would interpret his presence there as an attempt to gain admission" and that he "would be arrested, detained for a period of time that would `not be brief,' and removed without seeing a judge." Id. ¶ 29. "[Plaintiff] has never been permitted to view a copy of the purported order of removal that was allegedly entered against him." Id. ¶ 30. "[Plaintiff] has never been informed of any date, time, or place to appear for any hearing before an immigration judge." Id. "CBP Defendants have failed to refer [Plaintiff's] matter to an immigration judge as required by law." Id.
Although government officials have never allowed Plaintiff to view the purported removal order that was allegedly issued against him, CBP officers may have executed an "Expedited Removal" order against him. If so, that order violated regulations that mandate a claimed status review hearing before an immigration judge for any person asserting U.S. citizenship. Id. ¶ 32.
Olivas struck back by filing this petition for a Writ of Habeas Corpus. Moreover, he sued the cats who removed him, including John Kerry.
Plaintiff contends that he has properly invoked federal question jurisdiction under 28 U.S.C. section 1331 to plead claims for declaratory and injunctive relief for the violations of his constitutional rights by government officials. Plaintiff contends that 5 U.S.C. section 702 expressly waives "sovereign immunity in non-statutory review actions for nonmonetary relief brought under 28 U.S.C. § 1331." (ECF No. 31 at 4). Plaintiff contends that CBP or its predecessor agencies are subject to injunctive relief for violating constitutional rights and directly refutes Defendants' position that Plaintiff must invoke a waiver of sovereign immunity found in Title 8. Plaintiff further contends that cases cited by Defendants concern the substantive question of whether the government had, in fact, waived sovereign immunity over the claims in question and do not require Plaintiff to cite the statute waiving sovereign immunity in the Complaint.
Citing Ninth Circuit precedents, the judge agreed that sovereign immunity was properly waived. The government tried to scuttle Olivas' case on two other fronts. First, they suggested that he was barred from challenging the expedited removal statute and its procedures under 1252(e)(3) because he wasn't filing in the District Court for the District of Columbia. The judge was unimpressed with this reasoning. The expedited removal system is not under attack, he suggested, only the violation of the petitioner's due process rights. Indeed, if Olivas challenged that fact he only gets one shot at claiming citizenship in front of an IJ and was then barred from going into district and circuit court, then he would have been challenging the statute. All he wanted was that initial hearing with the IJ that he was due. "There is no allegation that a removal proceeding took place or that an order was issued. Plaintiff's challenge is not subject to 8 U.S.C. section 1252(e)(3) because it is not a challenge to the validity of expedited removal proceedings pursuant to section 1225(b)(1)."
The judge was equally blase about the government's contention that the Secretary of State could only be sued in DC as well. The judge reasoned that since the State Department's actions precipitated the actions of the petitioner's immediate custodians in Southern California, the case is on greased rails to speed ahead.
This case highlights the very weird synergy between border consulates and the border patrol and how craven actions by rogue elements of both operations can compound the trouble for a hapless soul whose life is lived on the border and happens into their clutches. This is a bleak story that rivals that of Mark Lyttle, a US citizen who got lost in the wilds of immigration enforcement madness.
As news reports would have it, Senate Democrats are pressuring Majority Leader Mitch McConnell (R-Ky.) to bring the attorney general nomination of Loretta Lynch to the floor, with Sen. Chuck Schumer (D-N.Y.) telling reporters that a “hard right Republican temper tantrum on immigration” was keeping her from assuming Eric Holder’s job.
Three GOP Senators including Sen. Lindsey Graham (R-S.C.) backed Lynch during last week’s Senate Judiciary Committee vote. Sens. Orrin Hatch (R-Utah) and Jeff Flake (R-Ariz.) also voted for Lynch at the Judiciary Committee level.
Not all Republicans are as excited, though. Republicans who backed away from using the Department of Homeland Security appropriations bill to defund President Obama’s immigration orders have seen holding up the Lynch nomination as a plan B.
Senator Jeff Sessions (R-Alabama) has emerged as one of the most stalwart supporters of immigration enforcement and restrictions on immigration in Congress. This POLITICO story profiles his current immigration advocacy and opines that, in the recent fight over Department of Homeland Security funding, Sessions "became Capitol Hill’s agitator-in-chief." Sessions rallied his party in the standoff that ended with GOP capitulation. The senator is moving on to his next immigration crusade: attacking high-skilled immigration.
Senator Sessions' website summarizes his immigration stance as follows:
"Defending American Workers
Senator Sessions is committed to meaningful comprehensive immigration reform that will restore the rule of law, secure the border and the workplace, and promote the long term national interests of the United States by allowing the best and the brightest to come to America.
Sessions was a leading opponent to the flawed comprehensive immigration bill that was rejected by the America people last year. It failed because it lacked real enforcement, compromised our security, provided a pathway to citizenship for millions of illegal immigrants, and did not serve the national interest. The Senate bill would have granted amnesty to the entire illegal alien population, only sought to reduce illegality at the border by 13 percent and would cost the taxpayer $30 billion in just 10 years.
Senator Sessions believes that Congress can and must do better. Before reforms can be implemented, however, Congress and the President must regain the confidence and trust of the American people. To help earn that trust, Senator Sessions recently asked the President to "show that the federal government is serious about reducing illegal immigration” and challenged Presidential candidates to commit to a series of specific actions to restore law and order to America’s broken immigration system."
In January, Senator Sessions distributed to his congressional colleagues an Immigration Handbook for a New Republican Majority. The handbook at the outset states its opposition to comprehensive immigration reform:
“`Immigration reform' may be the single most abused phrase in the English language. It has become a legislative honorific almost exclusively reserved for proposals which benefit everyone but actual American citizens."
Immigration Article of the Day: Unreformed: Towards Gender Equality in Immigration Law by Mariela Olivares
Unreformed: Towards Gender Equality in Immigration Law by Mariela Olivares Howard University School of Law, Chapman Law Review, Vol. 18, 2015
Abstract: This Article advocates for comprehensive immigration reform that encompasses gender equality by including legislative provisions that benefit women. In this way, immigration law and policy can ameliorate the discriminatory effects of the explicit and implicit oppression against women that has characterized immigration law from its beginning.
Part I provides a basis to understand this legacy of oppression by exploring the subordination of women in immigration law. Since its inception as formalized federal law, immigration law has restricted the manner in which immigrant women could come to the United States and the type of immigration status benefits for which they could be eligible. Building on this historical foundation, Part II discusses the current state of immigration reform and comments on the continued oppressive measures that have infiltrated these proposals. Even though comprehensive legislative immigration reform remains elusive, this Part discusses a piece of proposed legislation that passed the Senate, the Border Security, Economic Opportunity, and Immigration Modernization Act of 20132 (“2013 Border Security Bill”). While the political process has likely stalled the chance of law reform passing in the current congressional session, the 2013 Border Security Bill serves as an illustrative case study in understanding current legislative trends and how they continue to disadvantage women. This Article concludes by discussing the feasibility and efficacy of a continued push for gender equality in immigration law and policy, given the environment of heightened anti-immigrant animus. Though change may be difficult to obtain, the history of immigration law teaches that the law has evolved to encompass more gender-neutral norms. Thus, equality will be achieved only through vigilant, unceasing efforts.
Professor Olivares is on a roll. Last month, she had another impressive article earning Immigration Article of the Day honors.
Thursday, March 5, 2015
Making Ethnic Choices, which is a 1994 book written by Professor Karen Isaksen Leonard (UC Irvine, Anthropology), examines the legal, social, cultural and political factors that led to marriages between Punjabi men and Mexican women in the early 20th century.
"In the early twentieth century, men from India's Punjab province came to California to work on the land. The new immigrants had few chances to marry. There were very few marriageable Indian women, and miscegenation laws and racial prejudice limited their ability to find white Americans. Discovering an unexpected compatibility, Punjabis married women of Mexican descent and these alliances inspired others as the men introduced their bachelor friends to the sisters and friends of their wives. These biethnic families developed an identity as "Hindus" but also as Americans. Karen Leonard has related theories linking state policies and ethnicity to those applied at the level of marriage and family life. Using written sources and numerous interviews, she invokes gender, generation, class, religion, language, and the dramatic political changes of the 1940s in South Asia and the United States to show how individual and group perceptions of ethnic identity have changed among Punjabi Mexican Americans in rural California."
The book was featured today in a Washington Post article about these marriages.
"The first marriages between Punjabis and Mexican Americans occurred in the early 1900s, after waves of men from Punjab — a geographic region straddling the Indian-Pakistani border — immigrated to the United States by way of Canada.
Although their numbers were initially small, estimated in the few thousands, the Punjabis, who were mostly Sikh, quickly adapted to life in the farming communities of the United States, particularly in California’s Central and Imperial Valleys. Drawing on their extensive agricultural knowledge, the Punjabis planted troves of peach and prune orchards, which today produce 95 percent of the peaches and 60 percent the prunes that grow in Yuba-Sutter County, an fertile agricultural hub California’s Central Valley."
As both the book and the Washington Post article highlight, these marriages illuminate the intersection of cultural similarities, Asian Exclusion Laws, anti-miscegenation laws and the California Alien Land Law of 1913.
ABC has a new TV show, "American Crime," that will begin airing tonight. The show revolves around the murder of a war veteran and attempted murder of his wife, the victims' families and the suspects and their families. Created by Oscar-winning screenwriter John Ridley (of 12 Years a Slave), "American Crime" is, as today's NYT review said, "doesn't seem to be about race" but everything about it is "tinged with prejudice" in one form or another.
Both racism and anti-immigrant sentiment are explored in the story about one of the suspects, Tony Gutierrez. As the NYT review noted: "When [the victim's mother] is told that one suspect is Hispanic, she assumes he’s an undocumented immigrant, or as she puts it, “some illegal.”
More broadly, views about immigration law plays a role in Tony's father, Alonzo Gutierrez. In a TV Guide interview of Michael McDonald, Executive Producer of the show, McDonald described Alonzo as "A widower and a devout Roman Catholic, Alonzo and his wife came to America legally in their teens. "They came here through the system and have always stayed within the system," McDonald says. A business owner and a homeowner, Alonzo is "a believer in the system and that if you work hard and you don't break the rules, then you'll succeed," McDonald says. "He feels like he is living the American dream and he just wants to keep his children on the straight and narrow and wants to instill in them that same work ethic."
It would be interesting to see how these themes of race, immigration and crime unfold in what promises to be a gripping drama series.
As the Los Angeles Times reports, the Los Angeles Police Department earlier this week killed -- in an incident caught on videotape -- a homeless person who is believed to be an immigrant from Cameroon and also believed to have had a history of mental issues.
The homeless man was shot dead on LA's skid row Sunday. Police claim that a struggle for an officer’s gun triggered the shooting. But many of the people who knew the man who went by the nickname “Africa” were mourning his death – and expressing anger over it. On Monday morning, a tent stood near a tree where two bouquets and two candles formed a makeshift memorial. "RIP 'Cameroon' rest in peace Africa brother" a cardboard sign reads. People who knew the homeless man said he told them he was from the African nation.
The details surrounding the victim remain hazy. According to VICE,
"[a]ccording to multiple sources, the victim was about 28 years old. He was an immigrant from Cameroon who spoke English with a heavy accent, spoke French fluently, and was a profoundly religious man. In the words of a man named `Juju' who said he was his closest friend on Skid Row, Cameroon was simply grateful to be in the United States."
In an article looking at Moncrieffe v. Holder (2013), a removal case decided by the Supreme Court that involved a small time marijuana conviction of a Black immigrant from Jamaica, I analyzed how Black immigrants to the United States can at times experience the same kinds of treatment by police that African American citizens do.
UPDATE (March 6): Federal officials later confirmed that the homeless man who was killed, Charley Leundeu Keunang, 43, was from Cameroon. Living under a stolen identity of a French national that was used to secure a French passport, he was the subject of a removal order because of a bank robbery conviction.
Abstract: Within the same immigration court, some immigration judges are up to three times more likely than their colleagues to order immigrants deported. Theories of appeal and of administrative adjudication imply that appeals processes should increase consistency. Yet this Article demonstrates that the appeals process for the immigration courts — a system of administrative adjudication that makes as many decisions as the federal courts — does not promote uniformity. The removal orders of harsher immigration judges are no more likely to be reversed on appeal, either by the Board of Immigration Appeals or a federal Court of Appeals.
Why? To explain this puzzling finding, I use an internal administrative database, obtained by Freedom of Information Act request, to track the decisions of initial immigration judges on appeal. I find that the Board of Immigration Appeals and the Courts of Appeals fail to promote uniformity across immigration judges because they review an unrepresentative sample of cases. Harsher immigration judges more often order immigrants deported early in their proceedings, before they have found a lawyer or filed an application for relief. Immigrants without lawyers rarely appeal. The Board of Immigration Appeals therefore rarely reviews the removal orders of immigrants who might have meritorious claims, but who are assigned harsh judges and lack lawyers at the beginning of their proceedings.
These quantitative findings, together with interviews and immigration court observation, point the way to reform. First, the Board of Immigration Appeals and the Courts of Appeals should adopt a less deferential standard of review of an immigration judge’s denial of a request for a continuance to seek representation. Second, the government should take simple steps to make applications for relief easier to fill out. Third, the Board of Immigration Appeals should hear a random sample of cases in addition to those appealed by the litigants, allowing the Board more often to review judges’ decisions about continuances, which are rarely appealed. Finally, and most broadly, the government should appoint counsel for immigrants in removal proceedings.
Wednesday, March 4, 2015
In the story that is making the national news, the Los Angeles Times reports on what restrictionists will no doubt characterize as the latest episode of the alleged abuse of the American rule of birthright citizenship.
The Times reports that You Win USA, a company advertising “maternity tourism” services, for fees starting at $38,000 guides pregnant women through the process, helping a prospective foreign visitor to come to the United States on a tourist visa to await the birth of a child at a luxury Irvine apartment complex. The company instructed undercover officers to book tickets to a popular tourist destination, such as Hawaii or Las Vegas, purchase a tour package she had no intention of using and fabricate an employment history to convince immigration officials that she would not overstay her visa. In an ironic coincidence, You Win USA had set up their operation in an apartment complex across the street from the Department of Homeland Security's Irvine field office.
Yesterday, You Win USA was one of three operations raided by federal agents targeting “maternity tourism” schemes in which pregnant Chinese women travel to the United States, usually on tourist visas, so that their children will be born U.S. citizens. The raids marked the largest federal investigation of its kind aimed at cracking down on the practice of foreign nationals traveling to the United States solely to give birth.
Agents raided apartment complexes in Los Angeles, Orange, and San Bernardino counties, removing boxes of documents, diaper containers, and trash, and interviewing pregnant women. Investigators said they were looking for evidence of visa fraud, conspiracy and other crimes in which women were helped to fabricate documents for visa applications and coached to falsely claim that they were traveling to the U.S. for tourism.
Federal officers allege that women were instructed to travel early in their pregnancy and wear loose clothing to avoid detection, and enter the U.S. through popular tourist destinations rather than Los Angeles, where authorities are more likely to suspect birth tourism.
Visa fraud cannot be condoned and legal channels exist to punish violations of the law. My fear is that, in the name of ending the phenomenon of "anchor babies," the publicity given to the relatively small numbers of birth tourism instances will give political fodder to forces seeking to somehow change the Fourteenth Amendment's rule of birthright citizenship.
Fifteen journalists have been selected for a fellowship program on the educational, economic and social issues faced by immigrant children and their families. The Institute for Justice & Journalism will conduct its annual fellowship training program at Georgia State University in Atlanta, April 7-10.
Among the featured speakers are Pulitzer Prize-winning journalist Martha Mendoza of the Associated Press, who will teach a workshop on investigative techniques, and immigration attorney Dan Kowalski, who will conduct an immigration law seminar.
As part of their fellowships, reporters will be working on projects that will be published or broadcast by their news organizations. The fellows and their affiliated media outlets are:
Isaias Alvarado, La Opinion, Los Angeles
Monsy Alvarado, The Record, Bergen County, New Jersey
Marlon Bishop, Latino USA, New York
Yvette Cabrera, Voice of Orange County, Santa Ana, Calif.
Fernanda Echavarri, Arizona Public Media, Tucson
Kristofer Husted, KBIA/Harvest Public Media, Columbia, Mo.
Amy Kiley, WABE, Atlanta Lomi Kriel, Houston Chronicle
Sonia Narang, freelance radio journalist, southern Calif.
Laura Palminsano, KVNF Community Radio, western Colorado
Elida Perez, El Paso Times Jeremy Raff, KQED, San Francisco
Perla Trevizo, Arizona Daily Star, Tucson
Rachel Uranga, Los Angeles Daily News
Amy Yurkanin, Birmingham News
Sean Sullivan of the Washington Post reports that House Speaker John A. Boehner "surrendered [yesterday] to Democratic demands to fully fund the Department of Homeland Security, ending a tense three-month showdown over immigration. But the move could further strain relations between the speaker and hard-line conservatives, whose growing dissent threatens the future of the unified Republican majority."
After weeks of delay, Boehner cleared the way for the House to vote on a bill funding DHS through September. The legislation passed 257 to 167, with the support of all Democrats who voted but just 75 Republicans, less than a third of the caucus. President Obama was expected to sign it swiftly.
The funding bill averted a DHS shutdown. Democrats had stood firm against Republican attempts to use the debate to fight Obama’s executive actions on immigration.
Abstract: Migration without permission is a crime—one prosecuted much more often than it used to be. Illegal entry and reentry, crimes of migration, are the most prosecuted federal crimes. Prisons overflow with migrants serving time for entering the United States without permission—an act that does no harm to persons or property. The obvious—and undertheorized—question is whether criminal sanctions are appropriate here. I tackle this issue in this Article, arguing that criminal law theory, political theory, and theories of punishment all cut against criminalizing acts of migration. Consider that the incarceration meted out to punish migrants for migrating comes on top of deportation. Yet deportation perfectly reverses the crime of migration. The migrant entered the United States without permission: the United States forcefully removes the migrant against his wishes. This symmetrical response has an ancient pedigree: “an eye for an eye and a tooth for a tooth.” But with deportation imposed, what interest does the United States have left to vindicate through incarceration? Normative criminal law theory, I show, suggests there is none at all. Another problem: aliens have not consented to border laws, including to crimes of migration. We take for granted that this lack of consent does not matter, but that is a controversial position in contemporary political theory—and for good reason. The kind of power we wield at the border looks more like what a king does to his subjects than what a liberal democracy does to persons ruled by law. Couple the problematic foundation of border enforcement with the fact that malum prohibitum crimes are held up by democratic consent (which, again, crimes of migration lack) and we have another compelling reason to doubt that crimes of migration have any justification besides the raw justice of the sword.
Tuesday, March 3, 2015
This biennial conference aims to create a space for junior law teachers to share drafts of writing projects, discuss teaching techniques, and get to know one another. It will be open to emerging immigration law teachers (tenure-track and non-tenure track) who have been teaching immigration law for eight years or fewer.
The conference will consist of panel discussions on teaching immigration law (doctrinal and clinical), professional development, scholarship, recent developments in immigration law and policy, and WIP/incubator sessions. The event is modeled after similar conferences held at Hofstra School of Law in 2009, American University, Washington College of Law, in 2011; and University of California, Irvine in 2013.
We intend for this gathering to occur every other year during the off-years of the biennial Immigration Law Teachers Workshop (which addresses the interests and needs of the larger immigration law teaching community). For questions related to conference content, feel free to contact any member of the planning committee:
- Kate Aschenbrenner (Barry)
- César Cuauhtémoc García Hernández (Denver)
- Anju Gupta (Rutgers-Newark) – Planning Committee Chair
- Geoffrey Heeren (Valparaiso)
- Elizabeth Keyes (Baltimore)
- Rachel Settlage (Wayne State)
- Becky Sharpless (Miami)