Sunday, April 22, 2018

High Profile Cases Highlight Border Patrol Abuses and Need for Systemic Change

The American Immigration Council's Immigration Impact reminds us all that U.S. Customs and Border Protection (CBP)—the Border Patrol in particular—has a reputation for repeatedly and systematically violating the rights of immigrants and U.S. citizens alike. Border Patrol agents are known for regularly using excessive force during apprehensions, detaining people under inhumane conditions, and resorting to coercion and misinformation in order to remove people from the United States. Despite the growing number of reports and studies which document these misdeeds and recommend systemic reforms to prevent them, a pattern of abusiveness remains.

Border-video-ad7208fa71f151834ace3b91982fac4e9a8e676d-s600-c85

NBC News/Screenshot by NPR

For instance, in April 2018, a video from March 2017 surfaced which captured an incident in which two Border Patrol agents operating along the border in El Centro, California, tried to dump an injured and incoherent man on the Mexican side without even verifying from what country he actually came. When Mexican border guards asked the agents how they knew the man was in fact Mexican, one of them replied, “He looks like it.” The Mexican guards also reminded the Border Patrol agents that bilateral agreements between the United States and Mexico specify that any deportee from the United States must be processed through the Mexican consulate on the U.S. side of the border. The agents responded by claiming that the man was not actually in their custody—even though they had him handcuffed.

KJ

April 22, 2018 in Current Affairs | Permalink | Comments (0)

Southern Poverty Law Center Challenges Private Immigrant Detention Conditions in Georgia Detention Center: Immigrants Forced to Labor for $1 a Day, No Toilet Paper

Stwrtga

From the Southern Poverty Law Center:

When Wilhen Hill Barrientos filed a complaint for being forced to work while he was sick, officers put him in medical segregation for chicken pox, a diagnosis that seemed unlikely since he'd contracted it as a child. 

He was left there for two months, prolonging the resolution of his immigration case.

When he refused to work a 2 a.m. shift because he was scheduled to also start a shift eight hours later, an officer threatened to move him to another cell. He relented out of fear of being placed a dormitory that was in such bad condition that it was known as "the Chicken Coop."

When he needed toilet paper, an officer told him to use his fingers.

Barrientos is an immigrant from Guatemala and one of nearly 2,000 men who are being detained at Stewart Detention Center in Lumpkin, Georgia. They're being held only for civil charges related to their immigration status but nonetheless have been swept up in the Trump administration's deportation dragnet.

Barrientos regularly works eight- to nine-hour shifts, seven days a week. For as little as $1 a day, detainees mop, sweep and wax floors; scrub toilets and showers; wash dishes; do laundry; clean medical facilities; and cook and prepare food.

The men are permitted to use their paltry wages to purchase basic necessities like toilet paper from the prison commissary – the "company store." They can't purchase those items anywhere else.

The men at Stewart are working under threat of physical restraint, serious harm, or abuse of the legal process. Nothing about that is "voluntary."

But it's a lucrative arrangement for CoreCivic, a private prison company with revenues of $1.8 billion last year. The company owns the prison and gets paid $62 a day, per detainee, from Immigration and Customs Enforcement to manage it.

In effect, according to a suit filed by the SPLC this week, CoreCivic is operating a forced labor scheme that enables it to drastically reduce its operating costs in order to maximize profits. The "voluntary" work program means it doesn't have to recruit from the local labor market, pay minimum wages, pay payroll taxes, provide benefits, or pay the costs of potential unionization — and it reduces the chance that the men detained there will be able to act as whistleblowers about Stewart's deplorable conditions.

Take the dorm called the "Chicken Coop." As our attorneys write:

There is no privacy. The lights in these dorms are on all day and night, requiring some detained immigrants to fold socks over their eyes in order to sleep. There is one bathroom in these dorms with three to four toilets, three to four urinals, and four sinks. This shared bathroom is often filthy, to the extent that the pod residents at times have to plug or cover their noses to avoid the overwhelming and festering stench. The showers in the open dormitories do not have temperature control and provide only extremely hot water.

Our class action is among those filed in three states against CoreCivic for horrific practices that — at least in Stewart — violate anti-trafficking laws for the sake of the company's bottom line.

Stewart has been called as "the black hole of America's immigration system." No wonder.

Our Southeast Immigrant Freedom Initiative will be on the ground in Stewart and other immigration prisons in the Deep South until detained immigrants there are treated with the humanity and decency that the Constitution and our nation's underlying values demand.

Click here for more details on the lawsuit.

330px-A_Southern_chain_gang_c1903-restore

A chain gang in the southern US, circa 1903

 

KJ

April 22, 2018 in Current Affairs | Permalink | Comments (0)

Saturday, April 21, 2018

The Problem of Deporting Drug Addicts and Abusers Without Convictions

Guest blogger: Justine Levy, law student, University of San Francisco:

            INA §212(a)(1)(A)(iv) bars noncitizens seeking admission to the United States who are determined “to be a drug abuser or addict.” Under INA §237(a)(2)(B), deportation is possible under two provisions related to controlled substance offenses. The first provision requires a conviction relating to controlled substances. The second provision does not and states that “any alien who is, or at any time after admission has been, a drug abuser or addict is deportable.” The terms “drug abuser” and “drug addict” are not defined in the immigration statutes. The Public Health Service regulations, however, define drug abuse as “the non-medical use of a substance listed in section 202 of the Controlled Substances Act…which has not necessarily resulted in physical or psychological dependence.” This is an incredibly broad definition and gives the government a significant amount of discretion in making decisions regarding these statutes.

The statutes are similar to a law discussed in Robinson v. California, 370 U.S. 660 (1962). Robinson was convicted under California Health and Safety Code § 11721, a statute that made it illegal to “be addicted to the use of narcotics.” Id. Robinson had been charged with drug possession and addiction. Id. at 661. During trial, the district court judge informed the jury that even if they found he was not using drugs, Robinson could still be found guilty of being addicted to narcotics. Id. at 662. He was ultimately convicted on only the addiction charge. Id. at 663. The Supreme Court held that the California statute was unconstitutional. Id. at 667. The Court stated it is a violation of the defendant’s Fourteenth Amendment right because it punishes drug addiction, which is a disease and status. Id. at 666. The Court drew a parallel that punishing someone for drug addiction is similar to punishing someone for a mental illness or physical disease. Id. In his concurring opinion, Justice Douglas noted that “confine[ment] for treatment or for the protection of society” would be acceptable, but that it is cruel and unusual punishment to convict and confine an drug addict. Id. at 676. Additionally, the purpose of the California statute was to penalize and not to cure the illness of addiction. Id. The Court’s holding in Robinson should pose a challenge to the INA statutes.

            The California statute and INA statutes are incredibly similar. The Robinson case involved the issue of whether the conviction was constitutional. However, the INA statutes, do not require a conviction for drug addiction, only that the person be determined to be drug addict or abuser. The consequences for a mere determination could result in deportation or denial of admission.

        The INA provisions seem to be at odds with the underlying problem identified in Robinson. In Pondoc Hernaez v. I.N.S., 244 F.3d 752 (9th Cir. 2001), the Ninth Circuit somewhat addressed this double standard. Petitioner was ordered to be deported on the basis of overstaying his visa and drug addiction and the immigration judge found he was ineligible for voluntary departure because his drug addiction charge restricted his ability to demonstrate good moral character. Petitioner appealed the IJ’s decision denying voluntary departure. The BIA denied the appeal and motion to reopen. Petitioner appealed to the Ninth Circuit. The INS argued that the Ninth Circuit lacked jurisdiction to consider the case because of IIRIRA’s transition rules prohibiting appeals in which “an alien who is… deportable by reason of having committed a criminal offense.” Petitioner argued the court had jurisdiction because his drug abuse/addiction was not a criminal offense. The court held, that based on Robinson, “mere ‘drug abuse or addiction’ cannot be considered a ‘criminal offense’ for purposes of removing jurisdiction from this court.” However, the petitioner’s appeal was ultimately denied for on other grounds.

            Pondoc Hernaez demonstrates the Ninth Circuit’s understanding and acknowledgment that drug addiction is not an actual crime, but a status. However, INA § 237 continues to be applied. It’s time for a court to use the philosophy in the Supreme Court’s ruling in Robinson, to void the drug addict provisions of INA §§237(a)(2)(B)(ii) and 212(a)(1)(A)(iv). The statute should, at the very least, be challenged to demand a more specific definition of “drug abuser and addict.”

bh

April 21, 2018 | Permalink | Comments (0)

NYT Wins Pulitzer Prize for Editorial Cartooning with Tale of Syrian Refugees in US

Screen Shot 2018-04-21 at 2.19.22 PM

Welcome to the New World is an editorial cartoon series in 20 parts. It tells the story of two refugee families from Syria who are resettled in the United States. It's based on real life experiences and months of reporting by the NYT. The paper won a Pulitzer for the series this year in the area of Editorial Cartooning.

-KitJ

April 21, 2018 in Books, Current Affairs | Permalink | Comments (0)

Friday, April 20, 2018

Immigration Article of the Day: When Shadow Removals Collide by Jennifer Lee Koh

  Black_Hole_Milkyway

I've posted the following draft on SSRN:

When Shadow Removals Collide: Searching for Solutions to the Legal Black Holes Created by Expedited Removal and Reinstatement, forthcoming Washington University Law Review (2018)

Abstract

Immigration scholarship has begun to explore the prominence of shadow removals–deportations that are executed by front-line agency officials acting outside the presence of an immigration judge—which now constitute the majority of all reported removals. This Article explores two of the most common forms of shadow removals, expedited removal and reinstatement of removal, and the collision of the two. Expedited removal has typically been perceived as a border enforcement tool, used against persons with limited ties to the U.S. Reinstatement of removal exists for persons who enter the US following a prior removal. The rising use of each streamlined procedure is, on its own, troubling from a fairness, accuracy and rule of law perspective. But like chemical compounds mixing and creating new substances, expedited removal and reinstatement interact to produce unique sites in which the law renders people forever subject to immediate deportation based primarily on the existence of a brief encounter at some point in the past with a border official. These sites are akin to legal black holes in immigration law, and have not been examined in any of the scholarly literature to date.

This Article is the first to consider the interplay of expedited removal and reinstatement. It traces the operation of the two removal processes, both independently and in combination with each other. It emphasizes the harsh statutory bars on judicial and habeas review, and the resulting inability of the federal judiciary to ameliorate the harshness of removal in this context. The Article then suggests that the use of reinstatement based on prior expedited removal orders fails the basic administrative law requirement that federal agencies demonstrate reasoned decisionmaking and avoid arbitrary or capricious action. Relying on the Supreme Court’s decision in Judulang v. Holder, which applied arbitrary & capricious review in the deportation context, the Article encourages courts to more closely scrutinize the use of reinstatement based on expedited removal.

-JKoh

April 20, 2018 | Permalink | Comments (0)

Supreme Court to Hear Another Immigration Case Next Week (in addition to the Travel Ban Case)

Chacon

After deciding Sessions v. Dimaya earlier this week, the Supreme Court will hear arguments next Monday in another immigration case.  And, no, it is not the "travel ban" case, which will be heard later in the week.  Jennifer Chacon previews the arguments for SCOTUSBlog.   Here is the introduction:

"Pereira v. Sessions is not the immigration case that everyone will be watching this month, but it is definitely worth a glance. At first blush, this case looks like a hyper-technical and relatively dull issue of statutory interpretation. But looks are deceiving. Not only does the case have potentially far-reaching implications for many immigrants, but it will also give the justices another chance to stake out their views on what deference to agencies under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. requires."

Shoba_wadhia_faculty2

The Penn State Law Center for Immigrants' Rights Clinic, headed by Shoba Sivaprasad Wadhia, also has a preview of the argument in Pereira v. Sessions.

WBUR offers background on Wescley Pereira, who is from Brazil, overstayed his visa, and has lived for almost sixteen years in Martha's Vinyard.

0420_pereira-1-1000x750

Wescley Pereira and Gail Meister chat about a yard project. The two have been neighbors on Martha’s Vineyard for more than a decade. (Shannon Dooling/WBUR)

KJ

April 20, 2018 in Current Affairs | Permalink | Comments (0)

USA Today Special Report: The US/Mexico Border

 

USA Today has a pretty cool multimedia (video, audio, text, virtual reality, and more) special report on the US/Mexico border.  Here is the first video, which focuses on the many deaths in the border region.  It is heartbreaking to watch:

A USA TODAY NETWORK special report

A 2,000-mile search for answers

“Build the Wall.” Three words energized a campaign.

But could it be done? What would it cost? What would it accomplish? Our search for answers became this, a landmark new report, “The Wall.”

The task was massive. We flew the entire border, drove it too. More than 30 reporters and photographers interviewed migrants, farmers, families, tribal members — even a human smuggler. We joined Border Patrol agents on the ground, in a tunnel, at sea. We patrolled with vigilantes, walked the line with ranchers. We scoured government maps, fought for property records.

In this report, you can watch aerial video of every foot of the border, explore every piece of fence, even stand at the border in virtual reality. Still, breakthrough technology would mean nothing if it didn’t help us better understand the issues — and one another.

Keep scrolling for all the news on what we found. Or simply start exploring, right here. Should we build a wall? We invite you to learn, discuss, debate and decide.

Choose your journey

6 ways to explore ‘The Wall’

Interactive Map (infinite exploration): See every foot of the border in aerial video, with our reporting team as your guide. Examine every piece of border fence as it stood in summer 2017, and see how much border remains open. Explore the issues of “The Wall” through video stories and 360-degree video.

Explore
Videos

(4-10 minutes each)

Watch our series of documentaries from the shadows of the wall. Meet those most impacted.

Watch
The Flight

(20 minutes)

Join us as we travel the entire border to answer: Can a wall be built? Should it be built? At what cost?

Read
Stories

(6-12 minutes each)

Discover the unknown stories of the border. Hear from ranchers, vigilantes, migrants and more.

Read
 
Podcasts
(12-20 minutes each)

Listen as our team shares what we went through to tell these stories.

Virtual Reality

Explore the series on the Vive VR system.

 

 

 

KJ

 

April 20, 2018 in Current Affairs | Permalink | Comments (0)

Revisiting Legal Reasoning in United States v. Brignoni-Ponce and United States v. Martinez-Fuerte

Guest blogger: Norah Cunningham, law student, University of San Francisco

“Hands-on-the-Hips” Arguments: Replacing Legal Reasoning with an Underlying Rhetoric of Fear and Criminalization

In my Legal Research, Writing and Analysis class, my professor cautioned my class of fresh-faced 1Ls against using “hands-on-the-hips” arguments[1]— “arguments” where the law is stated, facts are presented, and the writer puts her hands on her hips and, without connecting those facts to the law, makes a conclusory statement to the effect of: “Therefore, I am obviously correct.” The writer expects the reader to automatically see the connection and agree with her because, in her mind, her conclusion is the only logical one. While this notion of connecting facts to law in order to make a conclusion was a wild concept to those of us just stepping our toes into the world of legal analysis, it appears that this concept is just as baffling to certain judges and Board of Immigration (BIA) officials. In the forum of immigration cases, rather than reasoned legal analysis, an unspoken rhetoric of fear and criminalization often takes center stage, and courts assume that the reader will fill in the gaps of their conclusions with common assumptions about undocumented immigrants.

Two specific United States Supreme Court cases are riddled with these “hands-on-the-hips” arguments: United States v. Brignoni-Ponce[2] and United States v. Martinez-Fuerte[3]. Both cases attempted to balance the importance of the public’s interest and the protections of the Fourth Amendment when analyzing whether stopping and questioning the occupants of vehicles about their residency without a reasonable basis is constitutional. The cases cited statistics on how many undocumented immigrants enter the country, how many are stopped in vehicles and apprehended by border patrol officers, how many cars cross through checkpoints, etc. The majority opinions then made leaps and conclude that, because of the high number of undocumented people in the country, it is within the public’s best and necessary interest to apprehend these undocumented people through means that may or may not be constitutional.

The Court in Brignoni-Ponce did conclude that the traffic stop in that case was unreasonable and therefore unconstitutional because the officers relied solely on the appearance of Mexican ancestry; however, the Court still concluded that “the likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.”[4] This nod to allowing discrimination based on the appearance of nationality was rationalized by a need to serve the public’s interest. And yet, there was no information provided as to how exactly the public was being harmed by the presence of undocumented immigrants apart from one sentence containing the judge's flawed personal beliefs: "Whatever the number, these aliens create significant economic and social problems, competing with citizens and legal resident aliens for jobs, and generating extra demand for social services."[5] Aside from these notions being completely false[6], even these reasons for the public’s interest being a priority were unsupported by any reference apart from the judge’s personal belief. After stating the law that Fourth Amendment rights can be balanced against public interest and listing facts including the estimated number of undocumented people in the country, the Court essentially put its hands on its hips, leaned back and said, therefore, public interest dictates that racial profiling can be one factor for pulling over people and questioning them about their documentation.

The Court in Martinez-Fuerte did not even include a few unsupported sentences explaining why the presence of undocumented immigrants is a detriment to society, but nonetheless concluded that the public’s interest outweighed the constitutional rights of the individual, and secondary stops in checkpoints near the border that are largely based on apparent Mexican ancestry are reasonable: "[E]ven if it be assumed that such referrals are made largely on the basis of apparent Mexican ancestry, we perceive no constitutional violation."[7] The Court again listed statistics of successful apprehensions at the checkpoint and threw out big figures regarding the number of undocumented immigrants who enter the United States, then put its hands on its hips and assumed that the reader would connect these numbers to the conclusion that public interest requires, and even makes it necessary, for Border Patrol officers to have broad discretion when bringing cars into secondary checkpoints. “[T]he need to make routine checkpoint stops is great,” the Court claimed, without showing exactly why this need is great enough to make the Fourth Amendment interests “quite limited” in comparison.[8]

Both Court opinions reflect the common rhetoric that automatically associates the notion of undocumented immigrants with crime. The rhetoric is so understood, the Court did not even feel compelled to say it. There is a high number of undocumented immigrants in the country; therefore, it is within the public’s best interest to apprehend them, even if apprehension is largely based on racial profiling. There is a missing piece in the reasoning, and it is the assumption that immigrants are a detriment to the public's interest. This rhetoric is not isolated to right-leaning news outlets or political platforms; it infiltrates judicial decisions and creates harmful precedent that prioritizes an un-cited public interest over undocumented people’s individual constitutional rights.


 

[1] Professor Carol Wilson

[2] United States v. Brignoni-Ponce, 42 U.S. 873 (1975).

[3] United States v. Martinez-Fuerte, 428 U.S. 543 (1976).

[4] Brignoni-Ponce, 42 U.S. 873 at 886-87.

[5] Id. at 878-79.

[6] Immigrants typically do not compete for jobs with native-born workers; immigrants create jobs as entrepreneurs, consumers, and taxpayers; and undocumented immigrants are not eligible for Federal benefits programs. See  https://www.uschamber.com/sites/default/files/documents/files/022851_mythsfacts_2016_report_final.pdf

[7] Martinez-Fuerte, 428 U.S. 543 at 563.

[8] Id. at 557.

bh

April 20, 2018 | Permalink | Comments (0)

Domestic Violence and the "Mail Order Bride" Industry

Guest blogger: Giani Interiano, law student, University of San Francisco

Domestic Violence and Capitalism: Are foreign brides solicited through the “mail order bride” industry safe in the U.S. under its current immigration laws?

It is no secret that the United States has a complicated and problematic history with immigration. However, from an outsider’s perspective, family-based immigration—when a United States citizen or legal permanent resident applies for a parent, child, or spouse to obtain legal immigration status in the United States—may seem like the least controversial and safest mode to gain legal immigration status. Within family-based immigration avenues, a spouse petitioning or applying for another spouse may also seem like a standard and safe way someone can legally immigrate to the United States.

            However, even in the realm of spouse-based immigration, immigrants are vulnerable to exploitation, abuse, and violence at the hands of U.S. citizen or legal permanent resident spouses. In 1999, the United States’ government-commissioned report, “International Matchmaking Organizations: A Report to Congress,” concluded that there was a high potential for foreign brides to experience abuse in marriages arranged through mail-order bride companies, or international marriage brokers (IMBs).[1] Fifteen years later, domestic violence service providers, law enforcement, and U.S. agencies were still seeing a large amount of “mail-order bride” abuse cases.[2] This trend and the industry that revolves around it shows how intertwined capitalist interests are in this problematic and underregulated industry.  

The modern “mail-order bride” industry: does it even exist and is it legal?

Most people likely associate a wave of foreign brides immigrating to the U.S. with the environment that existed in the mid-1940s, when foreign spouses or “war brides” gained immigration status through their American military spouses who had served in World War II.[3] Many people likely assume the “mail-order bride” industry existed around the same era, as an archaic form of traditional coupling that has since died out or is now illegal. However, the mail-order bride industry is still alive and well. Today, many foreign fiancées or spouses come from Russia, Eastern Europe, Central America, and Asia, the majority coming from the Philippines, through IMBs.[4] In providing legitimate ways to immigrate to the U.S. for marriage purposes, the IMB industry is a very legal part of the American economy, responding to the consistent demand for potential fiancées and spouses based in exoticism and cultural stereotypes. In 2014, it was reported that more than 400 IMBs operated in the United States, and an estimated 9,000 to 13,000 foreign brides entered the United States through IMBs.[5]

Concerning immigration law, foreign brides can legally immigrate to the U.S. through the family-based visa for spouses. Upon arriving in the U.S. under this visa, the foreign bride and her American spouse have a two-year window in which they must live together and abide by other standards to establish their married status under U.S. immigration law. During these two years, the foreign bride is not a U.S. citizen but has temporary immigration status that can be revoked if any immigration standard is not met. After these two years, the foreign bride and American husband will jointly file for the foreign bride to have her immigration status changed or adjusted from a conditional green card-holder to a U.S. citizen. This change of status generally gives the foreign bride more security in the U.S., such as allowing her children to immigrate to the U.S. and join her. However, because these women heavily rely on their American husbands for their immigration status, all while establishing themselves in a new country, a toxic power dynamic can emerge in the home and can be life-threatening.

What fosters this toxic environment that threatens the safety of this immigrant group?

Advocates report that the prevalence of abuse and violence against these immigrant women stems from the imbalance in power between foreign brides and their American husbands. Upon entering the U.S. on a spouse-based visa, the power dynamic between the U.S. spouse and the immigrant partner shifts, making the immigrant partner wholly dependent on the spouse. This reliance can also isolate these women and may convince them that the relationship, even if abusive, provides the only security they have in the U.S. Cultural stereotyping of foreign brides in this industry also contributes to the dangers these women may face—i.e. the subservient and domestic exotic wife. These misconceptions have encouraged the fetishization of the “powerless exotic woman” that many Americans look for through this industry. In response, international marriage brokers bank on this false image of foreign women to promote their services, leading immigrant and women’s rights advocates to rally against the industry as a legal form of human trafficking, portraying women as exportable commodities.

U.S. Immigration Law Reacts to Violence Against Foreign Brides

If a foreign bride finds herself in an abusive relationship, her dependency on her American spouse for her immigration status seems incredibly dangerous. Thankfully, there are some legal resources in place for immigrants in this situation. Under the Violence Against Women Act (VAWA) of 1994, if an immigrant is a victim of domestic violence, she can apply for a VAWA waiver where she can file immigration paperwork, so she can petition for herself when it comes time to change their conditional visa status to citizenship status. Under this visa, applicants also do not have to wait until the full two years is over to apply for citizenship. Not just foreign brides can be eligible to apply under VAWA. Both female and male partners, as well as children, are eligible for the VAWA waiver, allowing victims to separate from their abusers and gain control over their own U.S. citizenship or residency-eligibility.

In response to abuse and violence against women in the mail-order bride industry, and partly due to the brutal 1995 murder of a Filipina foreign bride, Susana Blackwell, Congress passed the Federal International Marriage Broker Regulation Act (IMBRA) in 2005.[6] Under IMBRA, “mail-order bride” agencies or international marriage brokers (IMBs) have a list of requirements they must fulfill to operate legally in the United States. Such requirements include: conducting background checks of Americans seeking foreign brides, submitting those background checks to the prospective brides abroad, providing those women with concerning their legal rights in the U.S., and limiting American clients from repeatedly filing immigration paperwork for a foreign bride.[7] However, IMBRA still falls short in several ways.

First, non-profit religious or cultural matchmaking services, social referrals (i.e. personal advertisements) between marriage visas sponsors, and foreign nationals are exempt from following IMBRA requirements. Companies that operate an international marriage broker business, but not as a principle business, are also exempt from IMBRA requirements. Thus, the foreign nationals these agencies solicit may still be exposed to abuse and violence and will not be protected under the IMBRA statute. On the surface, IMBRA seemed to be a proactive law that would strictly enforce its requirements and shutdown suspicious IMBs. However, an entire ten years after its enactment not one IMB was prosecuted even with reports of clear violations of the law.

Second, one of IMBRA’s most important provisions requires the Department of Homeland Security (DHS) to provide translated information about immigrants’ rights and protections under IMBRA. Although DHS’s website does have such information, it is only provided in English. In neglecting to provide translated information concerning the rights of these vulnerable immigrants, DHS administrators keep non-English-speaking immigrants in the dark about ways they can escape abusive relationships. To find an IMBRA-compliant internet page, an immigrant should instead visit the U.S. Department of State’s website that has printable IMBRA pamphlets translated into eighteen different languages.[8] There have also been reports of general non-compliance of IMBRA in immigration agencies that are supposed to monitor IMBs. In response, advocates and government officials alike have rallied for better training of immigration officials around IMBRA requirements and “red-flags.”

Third, even when an international marriage broker complies with IMBRA, marriage visa sponsors with no recorded criminal history but a propensity for violence can go undetected under IMBRA-compliant background checks. Even when immigrant women separate from abusive spouses, they still run the risk of facing violent sometimes deadly retaliation from their ex-spouse. In this way, immigrant women and children who may qualify as victims protected under IMBRA still face threats to their safety just like U.S. citizens or legal resident domestic violence victims under U.S. law. It took an entire ten years for Congress to do anything for these immigrant women in this country after Susana Blackwell’s murder, and with the significant exemptions IMBRA currently has, the law is a good-intentioned failure that should be amended to be more stringent in its application and more expansive in its coverage of victims.

            Some advocates in U.S. politics have attempted to amend current law to better protect immigrant victims of violence and abuse. However, the mail-order bride industry has grown into a highly profitable industry with political power here in the US and has negatively impacted immigration law and protection for its victims. During one incident in 2012, a powerful president of a mail order bride company was able to put pressure on House Republicans with successfully led them to block provisions to the Violence Against Women Act aimed at allowing mail order brides to self-petition for immigration status.[9] In 2013, the Department of Justice did provide a nationwide bulletin to state and local law enforcement as well as domestic violence advocates to report potential IMBRA violations. However, many advocates are still concerned that the lack of a framework for IMBRA prosecutions or an office of enforcement under IMBRA will continue ensuring that resources for these victims will fall short.

Reflection of the Treatment of Undocumented Women and Children

Considering the legislative push to protect women in the mail-order bride industry that was seen in 2005 and in the reports about IMBRA’s developments since, it is important to remember that undocumented victims of domestic violence are treated very differently. With the rise in immigration raids and local law enforcement cooperation with ICE officials, there are too many reports of domestic violence victims being arrested due to their status after trying to report incidents of abuse. The uptick in harsh immigration enforcement has therefore forced undocumented immigrants further into the shadows, silencing them from reporting crimes against themselves. This disparity of treatment between documented victims and undocumented victims of domestic violence seems to suggest that IMBRA was established in response to pressure from foreign governments concerned for their citizens’ safety when immigrating to the U.S. In the ten years it took for IMBRA to be established, in IMBRAs own loopholes, and in the treatment of undocumented victims of domestic violence, the U.S. federal government seems to care little for the survival of these immigrant communities. Like an abuser itself, the U.S. has used its power to silence immigrant victims and will continue to do so.

 

[1] Tahirih Justice Center, “Report Finds Law to Protect Foreign Brides Has Not Been Fully Implemented.” 2014, December 18. http://www.tahirih.org/news/report-finds-law-to-protect-foreign-brides-from-abuse-and-exploitation-has-not-been-fully-implemented/  

[2] Ibid.

[3] Soliven, Marivi. The Establishment. “The Mail Order Bride Industry Is Anything But Funny.” 2016, October 5. https://theestablishment.co/the-mail-order-bride-industry-is-anything-but-funny-d2711beb4403  

[4] Ibid.

[5] Tahirih Justice Center, “Report Finds Law to Protect Foreign Brides Has Not Been Fully Implemented.” 2014, December 18. http://www.tahirih.org/news/report-finds-law-to-protect-foreign-brides-from-abuse-and-exploitation-has-not-been-fully-implemented/

[6] Tahirih Justice Center. “Report Finds Law to Protect Foreign Brides Has Not Been Fully Implemented.” 2014, December 18. http://www.tahirih.org/news/report-finds-law-to-protect-foreign-brides-from-abuse-and-exploitation-has-not-been-fully-implemented/

[7] GAO: U.S. Government Accountability Office. “International Marriage Broker Regulation Act of 2005: Agencies Have Implemented Some, but Not All of the Act’s Requirements.” 2008, 8 August. https://www.gao.gov/products/GAO-08-862

[8] U.S. Department of State, Bureau of Consular Affairs. “Rights and Protections for Foreign-Citizen Fiancé(e)s and Spouses of U.S. Citizens and Spouses of Lawful Permanent Residents.” https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/imbra.html  

[9] Soliven, Marivi. The Establishment. “The Mail Order Bride Industry Is Anything But Funny.” 2016, October 5. https://theestablishment.co/the-mail-order-bride-industry-is-anything-but-funny-d2711beb4403

bh

April 20, 2018 | Permalink | Comments (0)

The Beat Goes On: Trump Administration Loses Another "Sanctuary" Case

Trump

The U.S. Court of Appeals for the Seventh Circuit upheld the district court injunction against the Department of Justice's effort to deny federal funding to so-called "sanctuary cities" -- those local jurisdictions that refuse to cooperate in federal immigration enforcement. In Chicago v. Sessions, a three-judge panel concluded the Justice Department lacked the authority to require such cooperation as a condition of receiving funds from a federal grant program. While all three judges on the panel agreed that DOJ had over-reached, one judge dissented on whether it was appropriate to enter a nationwide injunction against the federal government.

Judge Ilana Rovner (appointed by President Ronald Reagan) wrote the opinion for the court, joined by Senior Circuit Judge William Bauer. Senior Circuit Judge Daniel Manion wrote a separate opinion concurring in part and dissenting in part.

For further discussion of the opinions, click here.

KJ

April 20, 2018 in Current Affairs | Permalink | Comments (0)

Immigration Court Cases Now Involve More Long-Time Residents, Change from Obama Years

TRAC Immigration reports that the latest available data from the Immigration Court reveals a sharp uptick in the proportion of cases involving immigrants who have been living in the U.S. for years. During March 2018, for example, court records show that only 10 percent of immigrants in new cases brought by the Department of Homeland Security had just arrived in this country while 43 percent had arrived two or more years ago. In contrast, the proportion of individuals who had just arrived in new filings during the last full month of the Obama Administration (December 2016) made up 72 percent, and only 6 percent had been here at least two years. See Figure 1.

Figure1

Twenty percent of cases filed last month involved immigrants who had been in the country for 5 years or more. These figures are based on the latest recorded entry dates rather than initial entry dates so may underestimate how long the individual resided here. This would be particularly true for legal permanent residents with cases before the court.

KJ

April 20, 2018 in Current Affairs | Permalink | Comments (0)

ICE Raid Makes Some Conservative Voters Rethink Trump’s Immigration Agenda

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Immigrant families, faith leaders, and community members led a procession through Morristown, Tennessee, on April 12th, to express solidarity with those affected by the raid.

Photograph courtesy Tennessee Immigrant and Refugee Rights Coalition

In a powerful New Yorker piece on the recent ICE raid at a Tennessee meat-processing plant, Hank Smith, a fifty-year-old Baptist salesman, who voted for Donald Trump reflected on the raid saying, “I felt I understood the legal side of it. But this is the first time I really started looking at the human side. Families are being divided.”

KJ

April 20, 2018 in Current Affairs | Permalink | Comments (0)

At the Movies: A Season in France / Une saison en France (2018)

 

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A Season in France Directed by Mahamat-Saleh Haroun France, 2017, 100 minutes, French

Focusing on the precarious plight of undocumented asylum seekers, Haroun’s soul-searching film portrays the daunting challenges of overcoming a vast immigration system. Abbas (Eriq Ebouaney), professor and loving father of two, lives in the outskirts of Paris after fleeing the civil war raging in the Central African Republic. Widowed when his wife died in their escape, he falls in love with Carole (Sandrine Bonnaire), who sustains him as he battles a war of another kind. After two years of waiting while waiting to find out, the fate of his family’s future is about to be known. Masterfully contrasting the warm intimacy of human relationships with those of an impersonal bureaucracy, Haroun tells an all all-too universal story.

Click here for reviews.

KJ

April 20, 2018 in Current Affairs, Film & Television | Permalink | Comments (0)

Ninth Circuit to appoint special prosecutor to oppose pardoned Arpaio

 

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The ABA Journal reports that the U.S. Court of Appeals for the Ninth Circuit will appoint a special prosecutor to argue that former Maricopa County (Arizona) Sheriff Joe Arpaio’s conviction for criminal contempt should stand, despite his pardon by President Donald Trump.

Arpaio is appealing a decision by U.S. District Judge Susan Bolton in which she ruled the pardon spared Arpaio from punishment, but it doesn’t justify vacating the conviction.

The Ninth Circuit issued the order in a 2-1 decision. The court said it was appointing the special prosecutor to defend the conviction because the government plans to side with Arpaio, who argues the conviction should have been vacated. Judges A. Wallace Tashima and William Fletcher wrote that the panel of judges that would ultimately decide Arpaio's case "will not receive the benefit of full briefing and argument unless we appoint a special prosecutor to defend the decision of the district court."

Judge Richard Tallman dissented, writing that the Justice Department had said it would still represent the government's interests, just that it wouldn't defend Bolton's order.

BuzzFeed News reviews the order in detail.

Arpaio, who was the sheriff of Maricopa County, Arizona, for 24 years before losing a re-election bid in 2016, is now running for the U.S. Senate.

KJ

 

April 20, 2018 in Current Affairs | Permalink | Comments (1)

Thursday, April 19, 2018

Supreme Court to Hear Oral Arguments (Finally) in "Travel Ban" Case

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On April 26, the Supreme Court will hear oral argument in Trump v. Hawaii, the "travel ban" case.  The questions presented are as follows:

(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable;

(2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad;

(3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and

(4) whether the proclamation violates the establishment clause of the Constitution.

The Ninth Circuit in a per curiam opinion by Judges Michael Daly Hawkins, Ronald Gould, and Richard Paez, affirmed an injunction entered by the district court.

Amy Howe previews the oral argument for SCOTUSBlog.  She outlines the arguments of the parties on the issues presented and concludes as follows:

"Reflecting the deep public interest in the case and the travel ban more generally, the justices received a wide range of “friend of the court” briefs – submitted by everyone from Mormon history and legal scholars to Khizr Khan, the Gold Star father who criticized Trump at the 2016 Democratic National Convention, and a group of U.S. art museums. The court also announced last week that it would make the audio of the oral argument available shortly after the argument on Wednesday, rather than waiting until Friday, when the audio is normally released. But although we may have a good sense of where the justices are heading after next week’s oral argument, we almost certainly will have to wait until late June for the court’s ruling."

Penn State Law's Center for Immigration Rights Clinic also has a preview of the travel ban 3.0 argument.  Here is an audio of a discussion aboutf the case organized by the American Constitution Society. 

Other materials on the case include:


A View from the Ground: Stories of Families Separated by the Presidential Proclamation
, Asian Americans Advancing Justice Asian Law Caucus, Center for Constitutional Rights, Muslim Advocates, and the Penn State Law Center for Immigrants' Rights Clinic, February 20, 2018.

KJ

April 19, 2018 in Current Affairs | Permalink | Comments (0)

Harvest of Blame: ICE enforcement ends in death of farmworkers, leaving anger and questions

Here is a disturbing story from the Los Angeles Times.  In the Central Valley city of Delano, known for its grapes and as a center of the farmworker movement, there is a sense of unease. A month ago, a married couple died in a crash as they tried to escape federal immigration agents. Some blame Immigration and Customs Enforcement (ICE) for being too aggressive, while ICE has blamed the deaths on California’s “sanctuary” policies. Police questioned whether the agents gave them false information after the crash: prosecutors say they won’t press charges. But amid the finger-pointing and unanswered questions, six children are orphans.

 

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Ryan Reynoso, an employee with KRC Safety, looks at a memorial near the crash site on Cecil Avenue in Delano. (Mel Melcon / Los Angeles Times)

KJ

April 19, 2018 in Current Affairs | Permalink | Comments (0)

Is the DOJ Politicizing its Hiring of Immigration Judges (Again)?

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In this letter to Attorney General Jeff Sessions, several members of the House of Representatives (Reps. Elijah E. Cummings (D-MD), Lloyd Doggett (D-TX), Joaquin Castro (D-TX), and Don Beyer (D-VA)), write to express their concern regarding allegations that the Department of Justice is using ideology and politics as a consideration in its hiring of new immigration judges and members of the Board of Immigration Appeals. 

From the letter:  “These allegations are extremely troubling not only because they may violate federal law and repeat the mistakes of the past, but also because they further aggravate the critical need for more immigration judges and BIA officials to address the massive backlogs in immigration hearings across the country.”

The press release notes that the DOJ has made similar mistakes in the past:  "In 2008, an investigation conducted by the Inspector General and the Office of Professional Responsibility found that aides to then-Attorney General Alberto Gonzales 'considered political or ideological affiliations' when evaluating immigration judge candidates and candidates for the BIA.  The report warned that “both Department policy and federal law prohibit discrimination in hiring for career positions on the basis of political affiliations.”"

The letter goes on to share the information that has been received:  “Our offices recently received information alleging that the Department of Justice has targeted multiple candidates for immigration judge or BIA positions based on their perceived political or ideological views.  These candidates reportedly have had their offers suspended or withdrawn due to these improper considerations...We have confirmed that the Department has delayed multiple offers for these positions for unusually long amounts of time and, in one case, withdrew an offer with an explanation that raises suspicions about the actual motive for the withdrawal.”

-JKoh

April 19, 2018 | Permalink | Comments (0)

Field Trip Fun: Touring the Pembina POE

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I love field trips. They allow us to bring students to the physical spaces that they read about in class and to meet with people doing on-the-ground work. It's why I'm so passionate about teaching Hofstra's border class.

Living close to the northern border means that I don't have to limit my field trips to once a year in San Diego with Hofstra. I can bring my UND students to the border.

On Friday, I did just that. A group of my Immigration Law students took the 3 hour round-trip ride to the Pembina Port of Entry, the busiest POE on a stretch including all of Minnesota, North Dakota, Montana, and Idaho. On a particularly busy day, the port screens between 2,500 and 3,000 passenger vehicles and 800-1,000 commercial trucks.

My students met with a senior CBP Officer who answered every question imaginable about life on the northern border - from the training CBP officers undertake, the hiring process (and pay scale!), and the frequent immigration issues that they see (inadmissibility being tops).

Beyond answering questions, we were able to tour the facility - checking out the on-site firing range, the truck inspection garage (with its cage for locking up confiscated goods), the passenger vehicle inspection garage, and the holding cells.

The students were also taken to a car in the inspection garage and instructed us to look for contraband. Our group discovered (with some guidance), guns, a knife, money, drugs and drug paraphernalia. It was a wonderful learning experience.

-KitJ

April 19, 2018 in Current Affairs, Teaching Resources | Permalink | Comments (0)

Immprof 2018: Hotel Rooms Still Available!

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Drexel University's Thomas R. Kline School of Law is located in Philadelphia, PA

The 2018 Immigration Law Scholars and Teachers Workshop will take place at Drexel Law School from May 24-26, 2018. This year's theme is: Immigration Law In, Through, and Beyond Moments of Distress.

Registration is open at this link. Sure, you missed out on the early-bird registration rate, but you know you still want to come and hang out with all your favorite immprofs. Plus, you haven't yet missed out on the special rate at the Loews hotel. The deadline for making hotel reservations, which you can do at this link, is April 25.

Come and participate in media training (separate registration, $30), the clinical workshop, and the general plenary and breakout sessions. Talk about your difficult teaching moments. Get ideas from your peers. Pack your mobile music-maker and SING ALONG WITH FRIENDS. It's going to be a blast.

 

-KitJ

 

April 19, 2018 in Current Affairs, Teaching Resources | Permalink | Comments (0)

A Voyage Along Trump’s Wall

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“The idea of a wall is so un-American to me,” a river guide said. “Is this America first, or America only?”

Photograph by George Steinmetz for The New Yorker

 Voyage Along Trump’s Wall

In "A Voyage Along Trump’s Wall:  Canoeing the Rio Grande reveals how life and a landscape would be changed along the border" by Nick Paumgarten in The New Yorker offers a birds eye view of the river along the US/Mexico border that President Trump wants to wall.

KJ

April 19, 2018 | Permalink | Comments (0)