Thursday, June 29, 2017
President Trump's travel ban will go into effect at the top of the hour.
Yesterday, the Department of State issued a cable explaining how it ought to be interpreted and enforced. In particular, the DOS offered guidance on the issue of how to determine if an individual has or lacks, in the words of the Supreme Court “a bona fide relationship with a person or entity in the United States.”
In paragraph 10(a) of that cable, the DOS indicated that an applicant has a "bona fide relationship with a person" only if there is a "close familial relationship." And in paragraph 11, "close familial relationship" is further defined as:
a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half. This includes step relationships. “Close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-laws and sisters-in-law, fiancés, and any other “extended” family members.
Any guesses on where the first lawsuits challenging this narrow definition will come from?
An agreement entered years ago in Flores v. Reno involving the detention of noncitizen minors continues to be a subject of litigation.
In an order issued regarding the plaintiffs' motion to enforce and appoint a special monitor, Judge Dolly Gee concluded that children continue to be held longer than 20 days in secure, unlicensed facilities in defiance of the Flores settlement and the judge's previous orders, as well as the U.S. Court of Appeals for the Ninth Circuit ruling last year. The court determined that almost all Rio Grande Valley sector facilities in which children and adults were kept had unsafe and unsanitary conditions, with inadequate food, inadequate access to clean drinking water, inadequate hygiene, cold temperatures and inadequate sleeping conditions. Further the court concluded the government has failed to: make repeated efforts to release children, ensure that children are not kept in secure, non-licensed facilities (like the facility in Dilley, Texas), and release children within the court's 20-day limit. As such, the judge ordered the appointment of a Juvenile Coordinator within 30 days. For more information, read the American Immigration Lawyers Association statement.
The American Immigration Council released the following statement about the latest developments in the Flores case:
Last night, U.S. District Court Judge Dolly M. Gee condemned the federal government for continuing to disregard critical protections for children in detention.
Since the summer of 2014, the government has detained thousands of mothers and children fleeing violence in Central America. Although the longstanding Flores settlement guarantees minimum standards for the detention, release, and treatment of children in immigration detention, the government has failed to comply with the settlement.
Two years ago, a civil rights organization, on behalf of immigrant children, brought suit to enforce the Flores settlement. In July and August of 2015, Judge Gee said the government must apply the settlement to all minors, including those detained with family members. However, the government still refuses to comply with the settlement and holds children for far too long, in substandard conditions, and in non-licensed facilities.
Judge Gee’s most recent order makes clear that the government is not honoring its obligations and must be held accountable. She directs the government to identify a Juvenile Coordinator within 30 days to report to the court on the government’s compliance with the Flores settlement.
To learn more, view today’s post on Judge Gee's decision on ImmigrationImpact.com.
It remains to be seen how the government will respond and whether it will honor its commitments under the Flores settlement, but the order is a long-sought victory for the fair treatment of some of the most vulnerable among us, and we will continue to fight on their behalf. Thank you for continuing to stand with us.
U.S. Citizenship and Immigration Services (USCIS) will celebrate the 241st anniversary of the Declaration of Independence, and our nation’s birthday, by welcoming nearly 15,000 new U.S. citizens during more than 65 Independence Day-themed naturalization ceremonies across the country this year.
USCIS’ Independence Day activities this year will feature a naturalization ceremony at the National World War II Museum in New Orleans, Louisiana, on July 3. During this event, McCament will administer the Oath of Allegiance and deliver congratulatory remarks to 49 new Americans. Follow us on Facebook to view a live stream of this ceremony.
To view a complete list of 2017 Independence Day-themed naturalization ceremonies, please visit uscis.gov/news.
Minor Protections: Best Practices for Representing Child Migrants by Laila Hlass, , 47 New Mexico Law Review 247 (2017)
In recent years, the number of Central American children fleeing violence and seeking protection in the United States has surged, and these children’s cases have flooded the immigration courts. Children are treated virtually the same as adults in immigration court, and, because they are not provided government-appointed counsel, many must defend themselves from deportation pro se. In 2014, 80% of children — roughly 34,130 — were unrepresented, and this lack of representation often has profound consequences: many of these children are eligible for protection from deportation, but, without access to attorneys, most will be deported anyway. Governments, nonprofits, and child advocates have taken action to address this justice gap, but these efforts have fallen short of a solution. In a recent case, J.E.F.M v. Lynch, regarding the government’s failure to provide counsel to defend children matched against federal prosecutors in immigration court, the Ninth Circuit implored the Executive and Congress to address the crisis: “[t]o give meaning to ‘Equal Justice Under Law,’ . . . to ensure the fair and effective administration of our immigration system, and to protect the interests of children who must struggle through that system, the problem demands action now.” The Justice Department and some state and local governments have begun funding a limited number of temporary fellowship positions, usually for recent law graduates, to defend children from deportation. As these initiatives develop and expand, policy makers and philanthropic organizations will need to determine the most effective and efficient ways to provide counsel to so many migrant children. This article contemplates the best practices for high volume delivery of legal services for children in immigration court. Drawing on original, empirical data regarding recent Special Immigrant Juvenile Status (SIJS) applications and extensive interviews with organizations and individuals nationwide filing the most SIJS applications, this article considers emerging trends in the representation of child migrants, identifies common characteristics of effective high volume practices representing children, and offers recommendations to expand access to qualified counsel and to create a child-centered approach to youth in removal proceedings.
Wednesday, June 28, 2017
The Strange Death of Europe: Immigration, Identity, Islam by Douglas Murray. Here is a description of the book:
"The Strange Death of Europe is a highly personal account of a continent and culture caught in the act of suicide. Declining birth rates, mass immigration, and cultivated self-distrust and self-hatred have come together to make Europeans unable to argue for themselves and incapable of resisting their own comprehensive alteration as a society and an eventual end.
This is not just an analysis of demographic and political realities, it is also an eyewitness account of a continent in self-destruct mode. It includes accounts based on travels across the entire continent, from the places where migrants land to the places they end up, from the people who pretend they want them to the places which cannot accept them.
Murray takes a step back at each stage and looks at the bigger and deeper issues which lie behind a continent's possible demise, from an atmosphere of mass terror attacks to the steady erosion of our freedoms. The book addresses the disappointing failure of multiculturalism, Angela Merkel's U-turn on migration, the lack of repatriation, and the Western fixation on guilt. Murray travels to Berlin, Paris, Scandinavia, Lampedusa, and Greece to uncover the malaise at the very heart of the European culture, and to hear the stories of those who have arrived in Europe from far away.
This sharp and incisive book ends up with two visions for a new Europe--one hopeful, one pessimistic--which paint a picture of Europe in crisis and offer a choice as to what, if anything, we can do next. But perhaps Spengler was right: "civilizations like humans are born, briefly flourish, decay, and die."
NPR's Robert Siegel talks to Douglas Murray about his new book, The Strange Death of Europe: Immigration, Identity, Islam. He argues that European civilization is dying as a result of immigration.
Immigration Article of the Day: A Particularly Serious Exception to the Categorical Approach by Fatma Marouf
A noncitizen who has been convicted of a “particularly serious crime” can be deported to a country where there is a greater than fifty percent chance of persecution or death. Yet, the Board of Immigration Appeals has not provided a clear test for determining what is a “particularly serious crime.” The current test, which combines an examination of the elements with a fact-specific inquiry, has led to arbitrary and unpredictable decisions about what types of offenses are “particularly serious.” This Article argues that the categorical approach for analyzing convictions should be applied to the particularly serious crime determination to promote greater uniformity and provide the predictability necessary to make informed pleas. Recent Supreme Court decisions, as well as a 2015 opinion by the Attorney General, support this argument by stressing that the use of the word “convicted” in the Immigration and Nationality Act triggers a categorical analysis. Although the United Nations High Commissioner for Refugees has interpreted the particularly serious crime bar as requiring an individualized analysis, this Article argues that the categorical approach better protects the High Commissioner’s underlying concerns of consistency and fairness.
Tuesday, June 27, 2017
Non-profit CIVIC (Community Initiatives for Visiting Immigrants in Confinement) has partnered with the NYU Immigrant Rights Clinic to create a 5-minute video on immigration detention. "Exposed: The Injustice of Immigration Detention" succinctly and effectively presents the harms and costs of detention, especially for those with little prior exposure to immigration detention . It is narrated by Kristina Schull, who shares about her own husband's detention by immigration authorities, with graphics and editing by Stephanie Busing.
"It is uncertain how the Supreme Court will decide Jennings, but it should follow the 9th Circuit, which held that “the government must provide periodic bond hearings every six months so that non-citizens may challenge their detention ‘as the period of … confinement grows.’” The 9th Circuit decision should be a guide to the Supreme Court, because it is well reasoned, and it captures the history of how courts have handled and considered fundamental legal questions in the space of immigration detention."
The second installment was written by NancyMorawetz. She notes that immigrants have prevailed over the government in a series of removal cases, including earlier this Term in Esquivel-Quintana v. Sessions:
"Esquivel-Quintana shows how the executive branch’s positions can be dead wrong and that immigrants challenging their deportation can have viable claims and indeed may ultimately be vindicated by a unanimous Supreme Court. One can only hope that the Supreme Court will take that lesson to heart when it rehears Jennings v. Rodriguez in the fall. At issue in Jennings is whether an immigrant such as Mr. Esquivel-Quintana should be subjected to prolonged detention without any chance of release while pursuing a challenge to his deportation. The very fact that the Supreme Court has issued so many favorable rulings for immigrants makes clear that immigrants being detained are hardly destined to be deported simply because the government chooses to charge them as deportable. Understanding that basic fact is essential in achieving a fair result in Jennings."
Other contributions (all collected here) were posted by Professor John Eastman, Professor David Rubenstein, Charles Roth (National Immigrant Justice Center), and Richard Samp (Washington Legal Foundation)
UPDATED June 30
Cyrus Mehta: Supreme Court May Have Bolstered Rights of Foreign Nationals with Ties to the United States
Cyrus Mehta on The Insightful Immigration Blog opines that, although it le disappointing that the Supreme Court allowed the ban to apply on visa applicants with no ties with the US from the banned countries, it may have permanently bolstered the rights of visa applicants who have ties to the US to challenge visa denials, which hitherto was not possible. This is the silver lining from yesterday’s court order.
In Trump v. International Refugee Assistance Project, the Supreme Court decided to review the preliminary injunctions of President Trump’s travel ban in its next term. As an interim measure, however, the Court granted the government’s application to stay the injunctions of the Fourth and Ninth Circuits, but created a broad exception. The travel ban “may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” Through this statement, the Court overnight fashioned a new standard for determining against whom the ban would apply or not apply. The following extract from the Court’s order is worth noting:
The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.
Immigration Article of the Day: Country Conditions in Central America and Asylum Decision-Making: Report from a January 2017 Workshop by Jayesh Rathod, Eric Hershberg, Dennis Stinchcomb
In recent years, cases involving Central American migrants, including unaccompanied children (UACs) and families, have inundated the U.S. immigration system. Many of these migrants have expressed a fear of persecution and have applied for asylum, initiating a resource and time-intensive adjudication process with high stakes. Since many of these claims rely on non-legal expertise – often relating to country conditions and/or mental health assessments – the influx of cases presents new opportunities for collaboration between social scientists and legal scholars. In order to foster the collaboration that could inform the equitable adjudication of these cases, a cross-disciplinary team at American University convened an international group of researchers and practitioners with expertise across three areas: 1) country conditions in Central America; 2) psychological assessment of asylum seekers; and 3) asylum adjudication and evolving jurisprudence on asylum law in the U.S. The workshop had multiple goals, including the development of cross-disciplinary professional networks, the articulation of plans for future research, and the identification of other collaborative efforts seeking to address challenges in asylum adjudicat
University of California updated guidance (post-Supreme Court cert grant and partial stay of injunction) on executive order restricting travel and entry into the United States
The Office of the President of the University of California has issued an "Updated guidance on executive order restricting travel and entry into the United States by individuals from Iran, Libya, Somalia, Sudan, Syria and Yemen (‘Designated Countries’)." The guidance responds to the Supreme Court's partial stay of the injunctions entered in the travel ban cases.
The guidance states that
- permitting the entry ban in the Executive Order to go into effect as to foreign nationals from Designated Countries “who lack any bona fide relationship with a person or entity in the United States;” and
- continuing to stay the Executive Order with respect to foreign nationals from Designated Countries who “have a credible claim of a bona fide relationship with a person or entity in the United States.”
- The Supreme Court noted that a close familial relationship is sufficient to establish that a foreign national from a Designated Country has a bona fide relationship with a person in the United States. To establish that a foreign national from a Designated Country has a bona fide relationship with an entity, the Court noted that the relationship must be “formal, documented, and formed in the ordinary course, rather than for the purpose of evading” the Executive Order.
The Supreme Court identified three circumstances relevant to members of the University of California community that would qualify as a bona fide relationship with an entity in the United States:
- A student from a Designated Country who has been admitted to a university;
- a worker who has accepted an offer of employment from an American company; and
- a lecturer invited to address an American audience.
The University cannot be certain how the federal government will interpret and implement the Supreme Court’s order. However, from the University’s perspective there is a strong argument that current students; current employees; people who have accepted admission or employment offers by the University but have not yet started; people who have been offered admission or employment by the University through ordinary University procedures; and even people who have applied to the University for admission or employment through ordinary University procedures all have a “bona fide relationship” with the University.
It is official, the California state budget has been signed by Governor Brown with the $45 million for an expanded One California program that includes the below services:
- Education and outreach regarding immigrant rights and available relief from deportation
- Application assistance for naturalization, DACA, and other affirmative relief from deportation
- Legal representation for Californians facing deportation proceedings, including detained immigrants
- Legal services for deported veterans
- Legal training and technical assistance to build capacity for the provision of qualified legal services in underserved communities, to enhance the quality of legal representation for noncitizen clients, and to continue providing critical immigration expertise for legal service providers across California
The expanded program details are in SB 89.
From the NY Times:
Dr. Luke Smith drove slowly through the unlit streets of a neighborhood filled with immigrants, searching for an address among small houses with windows ribbed by iron bars. Pharmacy bags lay at his feet.
His mission: to deliver medication to patients too frightened to pick up their prescriptions.
On this evening, Dr. Smith, a psychiatrist, was looking for the family of a 12-year-old boy with attention deficit disorder. Like most people who have sneaked into the United States illegally, the boy’s parents, from Puebla, Mexico, do not have drivers’ licenses.
Now, when they drive, being stopped at one of the frequent traffic checkpoints here can have consequences far more costly than a fine. Shaken by the Trump administration’s broad deportation orders, they and many others like them are retreating into the shadows, forgoing screenings, medications and other essential medical care.