Friday, September 1, 2017
Rumor has it that President Trump will dismantle the Deferred Action for Childhood Arrivals program, perhaps as early as today. Molly Ball for The Atlantic offers most thoughtful analysis of the political forces pushing for, and opposing, the end of DACA.
It seems fair to say that, if an announcement is made that DACA is ending, there will be mass protests. The movement for immigrant rights existed well before 2012, when DACA was first announced. The program, however, energized and empowered that movement, which shows no signs of going away.
Here is the latest immigration data from Transactional Records Access Clearinghouse (TRAC) at Syracuse University:
Immigration Court backlog Hits All-Time High
The latest available case-by-case court records show that as of the end of July 2017, the Immigration Court's backlog continued to rise, reaching an all-time high of 617,527. For the first time, individuals with pending cases from El Salvador surpassed the numbers from Mexico in the court's pending workload. There were a total of 134,645 pending cases involving citizens of El Salvador, edging past the 134,467 cases involving individuals from Mexico. In third place, with 102,532 pending cases were citizens from Guatemala.
California continued to have the largest backlog with 115,991 cases pending at its court locations. Texas was second with 99,749 pending cases, followed by New York with 84,429. Both California and New York are continuing to see rising court backlogs. In contrast, court locations in Texas saw a small decline in July.
Increase in Detainers
The latest case-by-case Immigration and Customs Enforcement data reveal that its use of detainers, commonly called immigration holds, began to increase last year well before either the election or inauguration of Donald Trump. Once President Trump assumed office, detainer usage rose rapidly. By March 2017, the second full month of the Trump Administration, ICE recorded preparing 13,971 detainers - up 31.7 percent from January's level.
Against a longer time frame, the number of detainers issued in March of 2017 is still slightly lower than during March of 2014. It is also only half the level of six years ago (March 2011) when ICE detainer usage peaked.
A total of 2,207 law enforcement agencies since Trump assumed office were sent new ICE detainer requests according to agency records. Topping this list was the Harris County Jail in Texas - the county Houston is located in. ICE records indicate that in second place was the Los Angeles County Jail that received 696 detainer requests.
In third place was the Maricopa County Jail in Arizona where Phoenix is located. It was sent a total of 501 detainer requests during February and March of 2017. The Dallas County Jail according to ICE records had the fourth highest total with 432 separate detainer forms addressed to jail officials there. The Gwinnett County Jail -located 30 miles northeast of Atlanta, Georgia -- was in fifth place with 416 detainer requests.
Thursday, August 31, 2017
Things keep getting tougher for immigrants.
Citing President Trump’s Executive Order 13780, “Protecting the Nation from Foreign Terrorist Entry,” the U.S. Citizenship and Immigration Services said Thursday that in-person interviews will be required for approximately 130,000 immigrants nationwide seeking green cards. In the past, immigrants already here on work visas could apply by mail or on line for permanent residency. The interviews will be required along with forms 140 and I-485.
Refugees or immigrants who have been granted asylum who are seeking green cards for their relatives will also be affected. Those family members, even if they are already in the U.S., will be required to have face-to-face interviews before their form I-730s can be approved. And immigrants with pending green card applications will no longer be able to leave the country until they are granted permanent residency.
The new requirements encompass visitors with H1B or H2B visas and any type of business visa, said UC Davis School of Law Dean Kevin Johnson. “They’re just tightening the process without showing how the process needs to be tightened, and the only explanation is to slow the number of people coming in by making it harder to get in.”
NPR has this short item on the Justice Bus, which is celebrating its 10th year. Over the past decade, a bus full of volunteer lawyers, counselors and translators — all part of a program called OneJustice — have rolled up and down California giving free legal counsel to low-income people on immigration and naturalization law, veterans' rights and more. The group recently visited the San Fernando Valley to help immigrants who were qualified and ready to become citizens work through a maze of paperwork.
As the uncertainty of DACA's future continues, a new website, plotagainstdaca.com, identifies various entities and individuals who have advocated for the repeal of the program. The list includes funders, federal and state politicians, nonprofits, and Trump Administration officials. The website identifies John Tanton, founder of the Federation Against Immigration Reform (FAIR), as the architect of the anti-DACA movement. The website appears to have been created by the Center for New Community.
When you hear the word “terrorist,” who do you picture? Chances are, it was not a white person. In the United States, two common though false narratives about terrorists who attack America abound. We see them on television, in the movies, on the news, and, currently, in the Trump Administration. The first is that “terrorists are always (brown) Muslims.” The second is that “white people are never terrorists.” Different strands of critical race theory can help us understand these two narratives. One strand examines the role of unconscious cognitive biases in the production of stereotypes, such as the stereotype of the “Muslim terrorist.” Another strand focuses on white privilege, such as the privilege of avoiding the terrorist label. These false narratives play a crucial role in Trump’s propaganda. As the critical race analysis uncovers, these two narratives dovetail with two constituent parts of propaganda: flawed ideologies and aspirational myths. Propaganda relies on pre-existing false ideologies, which is another way to describe racist stereotyping. Propaganda also relies on certain ideals and myths, in this case, the myth of white innocence and white superiority. Thus, the Trump Administration’s intentional invocation of both narratives amounts to propaganda in more than just the colloquial sense.
Part I illustrates each of the two narratives. Part II analyzes them through a critical race lens, showing how they map onto two strands of critical race theory. Part III examines how these narratives simultaneously enable and comprise propaganda. Finally, Part IV argues that the propagation of these false narratives hurts the nation’s security.
President Trump's pardon last Friday of former Maricopa County Sheriff Joe Arpaio, who was found guilty of criminal contempt for violating court orders in a civil rights lawsuit, continues to make news.
The Arizona Republic reports that U.S. District Court Judge Susan Bolton canceled former Sheriff Joe Arpaio's upcoming sentencing hearing for his criminal contempt-of-court conviction. However, Judge Bolton stopped short of throwing out the conviction as requested by Arpaio. She instead ordered Arpaio and the U.S. Department of Justice, which is prosecuting the case, to file briefs on why she should or shouldn't grant Arpaio's request.
Arpaio's attorneys asked Bolton on Monday to vacate Arpaio's conviction in light of President Donald Trump's Friday pardon.
Bolton has scheduled oral arguments on the matter for October 4.
There is case law that says a pardon implies an admission of guilt, and that will have to be argued in open court.
Deep in the Heart of Texas: Federal Court Enjoins Implementation of Core Provisions of Texas Anti-Sanctuary Law
Breaking news! Federal district judge Orlando Garcia entered a preliminary injunction enjoining the implementation of major provisions of Texas SB4, a controversial state-based immigration enforcement law. The injunction was entered just days before the law was scheduled to go into effect.
Senate Bill 4 was one of Texas Governor Greg Abbott’s key legislative priorities and seeks to outlaw “sanctuary” entities, the common term for governments that don’t enforce the federal immigration laws as the U.S. government claims should be the case.
SB 4 allows local law enforcement officers to question the immigration status of people they detain or arrest and seeks to punish local government department heads and elected officials who don’t cooperate with federal immigration "detainers" — requests by agents to turn over immigrants subject to possible deportation. Punishment could come in the form of jail time and penalties that exceed $25,000.
Judge Garcia halted the part of the bill that required jail officials to honor all detainers, and another that prohibits “a pattern or practice that 'materially limits' the enforcement of immigration laws.”
Here is the court's ruling in the case. Download SB4 prelimnary injunction OLG 083017
Wednesday, August 30, 2017
Ninth Circuit Decision: Coast Guard's Racial Profiling of Latino an Egregious Fourth Amendment Violation
In Sanchez v. Sessions, the U.S. Court of Appeals for the Ninth Circuit, in an opinion by Judge Harry Pregerson (and joined by Judges Richard Paez and Morgan B. Christen). As described in the summary of the opinion, the panel held that Coast Guard officers who detained Sanchez committed an egregious Fourth Amendment violation because they seized Sanchez based on his Latino ethnicity alone. Accordingly, the panel held that the immigration judge erred in failing to suppress the Form I 213 (Record of Deportable/Inadmissible Alien), which was prepared after his immigration arrest and which the Government introduced to establish Sanchez’s alienage and entry without inspection. The panel also concluded that Sanchez was not seized at the United States border, where Fourth Amendment protections are lower. The panel further held that, because Coast Guard officers detained Sanchez solely on the basis of his Latino ethnicity,the officers violated an immigration regulation, 8 C.F.R. § 287.8(b(2), which provides that an immigration officer may briefly detain an individual only if the officer has “reasonable suspicion, based on specific articulable facts” that the person is engaged in an offense or is an alien illegally in the United States. Accordingly, the panel held that Sanchez’s removal proceedings must be terminated based on the regulatory violation because the regulation is designed to benefit Sanchez, and Sanchez was prejudiced by the violation.
Hat tip to Professor Carter White.
ICE Plans to Start Destroying Records of Immigrant Abuse, Including Sexual Assault and Deaths in Custody
ICE is seeking National Archives and Records Administration approval to destroy a range of documents related to abuses in ICE custody, including death investigations, solitary confinement records, and sexual abuse investigations. In some cases, the destruction timeline is as short as 3 years; the longest is only 20 years. NARA has preliminarily approved the request.
Hat tip to Yoshinori Himel and Carl Takei.
In fact, a federal judge has already ruled that George Ybarra is a citizen. Even so, federal authorities have continued to work to deport him.
A series of mistakes and crimes on Ybarra's part and a pattern of failures by U.S. officials have led a man to spend more than a decade in and out of the corrections system, with the veteran stranded once again in an immigration detention center. Ybarra has severe PTSD symptoms, drug problems and criminal convictions (including firing a rifle in the direction of police), but his family and attorney said he needs treatment, not banishment.
For details, check out the story at the link above.
Hat tip to my colleague, Professor Elizabeth Joh!
So how should lawyers with sensitive client information on laptops and computers handle border crossings?
The ABA recommends leaving devices with sensitive information at home. Instead, lawyers should consider traveling with "burner" devices - that is, computers and phones without sensitive information on them. Lawyers abroad should connect to client files through a VPN (virtual private network).
For now, this is a suggestion. But Fordham Law prof Bruce Green notes that as lawyers become more aware of the risk posed by traveling across border with client information, it may become an ethical violation for lawyers to do so.
As a relatively frequent border crosser myself, I never take a laptop unless necessary. If a laptop is needed, I make sure to take a clean machine without any data on it. I haven't yet succumbed to the pull of a burner phone, but I also don't have client data on my mobile device.
From the International Organization for Migration: Princess, Patrick and Amadou lost loved ones as they tried to reach Europe through the Sahara Desert and Libya. For every life lost on migration routes, there is at least one life changed forever back home.
Here is Princess's story:
“My husband and I sold everything we had, and with 600 dollars in our pockets, we left for Europe. We wanted to try and provide a better life for our four children — now we only have three. On our way to Libya, my three-year-old son died. The pick-up car they piled us into was very small and overcrowded. There were about 50 people inside with no food or water. People were dying left and right.”
Click the link above for more stories.
On this week's episode of NPR's Code Switch, a viral video gives us the opportunity to talk about racism towards and within the Latino community. When a Latino flipped over a street vendor's cart in Los Angeles, many were surprised it was a Latino-on-Latino incident. We'll talk about why the video is surprising and why it isn't.
Tuesday, August 29, 2017
The Central States Law Schools Association 2017 Scholarship Conference will be held on Friday, October 6 and Saturday, October 7 at the Southern Illinois University School of Law in Carbondale, Illinois. Law faculty from across the country are invited to submit proposals to present papers or works in progress.
The conference is not subject specific, but usually includes panels on immigration, international law, and criminal law. From experience, I can report that CSLSA provides a friendly, intimate, and collegial setting in which to present scholarship. It's open to both junior and senior scholars.
You can click here to register. The deadline for registration is September 2, 2017.
I hope to see some of you at the conference this year!
The International Office of Migration has released the documentary, The Fable of the Lion and the Coyote, directed by Costa Rican filmmaker and producer, Miguel Gómez.
The film, divided into five chapters, tells the story of Talawa, a reggae band formed by Alonso Rojas, Gerardo Quirós, Bryan Chavarría, Francisco Barboza and Andrés Solano. The documentary is inspired by the life-threatening journey of the band and their sound engineer Juan Carlos Briceño, through Central America to the United States, without American visas, and motivated by the false expectations of a tour contract.
The documentary exhibits the risks that the group’s members faced during their two-week journey, from malnutrition to the theft of their musical instruments and death threats from a migrant smuggler. Additionally, the members describe how they almost lost their lives while trying to cross the Rio Grande River that divides Mexico and the US.
Two new jurisdictions have new laws designed to limit state and local cooperation with federal immigration enforcement .
Illinois Governor Bruce Rauner signed into law yesterday a law to prevent law enforcement officials across the state from detaining individuals based solely on their immigration status, and limit local agencies’ cooperation with federal immigration authorities. The governor signed Senate Bill 31, known as the Illinois TRUST Act.
The measure will prohibit police officers and other law enforcement officials from stopping, detaining, or arresting anyone based solely on their immigration status or an immigration detainer – effectively limiting the role of local authorities in the enforcement of federal immigration laws. Nothing in the bill – which was scaled back from its original form through negotiations involving advocacy groups, law enforcement, businesses and other stakeholders – prohibits agencies from communicating with immigration authorities, and local authorities can hold individuals if presented with a criminal warrant. The bill also includes a provision to require law enforcement agencies to provide officers with guidance on complying with the law.
With a 10-0 vote, the Denver City Council unanimously passed the Denver Public Safety Enforcement Priorities Act yesterday, essentially meaning Denver will have set rules for how city employees interact with immigration officials. Denver city employees, like officers, will not collect information on immigration status. The city won’t detain anyone beyond that person’s sentence on behalf ICE. The city won’t share anyone’s citizenship states for the purpose of immigration enforcement. The city will not allow ICE agents into jail without a warrant. Exceptions to these rules include necessary peace-keeping, or following a warrant from a federal judge. The ordinance does not prohibit the sheriff’s office from notifying ICE if someone wanted for deportation is leaving the jail. the law's sponsors have said this law will help undocumented immigrants feel comfortable calling police when needed, as well as give the city confidence that city resources are dedicated to Denver issues.
devastating the region just days before a new state law cracking down on sanctuary cities is scheduled to take effect. Advocates say it presents an entirely new set of challenges for a population already reeling from accelerated state and federal enforcement of immigration laws.Among the potential victims of the Hurricane Harvey are hundreds of thousands of undocumented immigrants who live in Houston and other hard-hit parts of Texas. The storm is
Part I of the Article summarizes the context surrounding the Hurricane Katrina disaster and how the stage was set for a racially-charged debate over the government's actions in response to the disaster as well as the mistreatment of immigrants. Part II critically analyzes how government harshly treated immigrants in the aftermath of Hurricane Katrina and how political failure within administrative agencies contributed to this treatment, just as it has throughout U.S. history. This structural flaw further helps explain why we know so little about the silent suffering of immigrants in the wake of Hurricane Katrina and, more generally, in American social life. It also suggests deep problems with the lack of political accountability of the immigration bureaucracy to noncitizens.
As it turns out, Hurricane Katrina is symptomatic of a more general problem in the governance of the United States. A shadow population of millions of undocumented immigrants who are abused and exploited, live in the United States and lack any formal input into the political process. They, along with many lawful immigrants, hold second class status in U.S. social life and, more specifically, are part of a low wage caste of color. Although more diluted than the old racial caste in place in the days of Jim Crow, it is a racial caste no less, marked by a subordinated status and subject to exploitation. To make matters worse, the democratic problem identified in this article is not limited to the immigration bureaucracy, but is a more general problem of U.S. government.