To read this Article, please click here: Rhetoric and the Creation of Hysteria.
Tuesday, December 6, 2022
The Stanford Law School Immigrants' Rights Clinic has released a new pro se guide for individuals on the Dedicated Docket. The guide provides an overview and description of the Dedicated Docket and to provide advice regarding how one may assert their rights while on this fast-paced docket. This guide was prepared for noncitizens in proceedings in the San Francisco Immigration Court, but may be helpful for others on the Dedicated Docket in other jurisdictions. The guide was created and written by law students under the supervision of Lisa Weissman-Ward and Jayashri Srikantiah. It was produced on behalf of the Justice & Diversity Center of the Bar Association of San Francisco.
Here is a student blog post describing the experience of serving as pro bono attorneys for individuals on the Dedicated Docket as part of the development of these materials.
Here is the intro:
"The Immigration Court’s Dedicated Docket (DD) program was created by the Biden administration to speed the processing of families seeking asylum after arriving along the Southwest Border. Over 110,000 DD cases covering each individual in these families have now been assigned to this initiative. To determine how this program is working, this report follows this cohort of cases. A total of nearly 40,000 of these cases have now been closed.
The goal set by the Biden Administration on May 28, 2021, when it announced this new initiative was to issue decisions in these cases within 300 days from their initial master calendar hearing. However, the Administration announced: “While the goal of this process is to decide cases expeditiously, fairness will not be compromised.”
Using detailed case-by-case Immigration Court records, this report is the first full-scale national assessment of whether the program has lived up to these goals. We found in brief:
(bold added) (footnotes omitted).
Click the link above for details.
The National Asian Pacific American Bar Association (NAPABA), in collaboration with the American Bar Foundation, recently released A Portrait of Asian Americans in the Law 2.0: Identity and Action in Challenging Times (Portrait Project 2.0). Five years ago, I was very moved by the original Portrait Project report and worked with the Asian Pacific American Bar Association and Asian Pacific American Law Students Association in Colorado to bring the primary author, California Supreme Court Justice Goodwin Liu, to Colorado during a snowstorm. This follow-up study is just as good and even more necessary.
The updated report (77 pages) combines detailed analysis of employment data in various legal sectors to gain insight into Asian American career advancement and political participation. It is based on interviews, focus groups, and a national survey completed by over 700 Asian American lawyers.
Some of the key findings:
Read the full report here.
The Road to Sanctuary: Building Power and Community in Philadelphia (Caitlin Barry, Amada Armenta, and Abel Rodriguez editors, 2022)
Here is the publisher's blurb:
"During the Trump administration, more people sought sanctuary in churches in Philadelphia than any other city in the United States. The city was also on the front lines of progressive policy making, defending its sanctuary policies in federal court. In this collection of essays and interviews, a diverse set of authors examine the promise and limits of sanctuary. Contributors include Carmela Apolonio Hernández, who spent over three years living in sanctuary to resist deportation, community organizers who work to build a more just and inclusive city, and leading academics who explore the origins of sanctuary and its intersections with the workplace, policing, and university campuses. Collectively, these authors offer a roadmap for how sanctuary is created and sustained and argue for a future in which no human being is illegal."
Kara Hartzler has published an Op Ed in Balls and Strikes on the racist history of federal immigration crimes for illegal entry and reentry that is not to be missed.
The piece details the arguments being made this week before the Ninth Circuit Court of Appeals in oral argument in United States v. Carrillo-Lopez. In that case, which we have reported on in prior posts, Chief Judge Miranda Du of the Nevada District Court struck down the illegal reentry law, under Section 1326 of the U.S. code, as violative of the Equal Protection Clause.
As Hartzler explains in her op ed:
In a 43-page opinion, Chief Judge Du agreed that the law violates equal protection, relying on this testimony and hundreds of pages of evidence to strike down Section 1326. But the DOJ appealed, arguing this history was irrelevant. If the Ninth Circuit agrees, it would give Congress free reign to enact any blatantly discriminatory immigration law it wants, so long as some lawyer at some point in the future could come up with a half-baked excuse to justify its continued existence.
A copy of Hartzler's powerful op ed is available here.
Official Congressional Photo of Senator Kyrsten Sinema
There is an immigration buzz Washington, D.C. in the last days of this Congress. A bipartisan duo of senators are negotiating a potential deal on immigration reform — including providing legal status for young undocumented immigrants and billions of dollars for border security — with the hope they can tackle the issue before the new Congress takes effect next year.
Lawmakers in both parties have repeatedly failed to clinch an agreement on immigration reform. But with the impending end to the pandemic-era Title 42 border policy on December 21 and concerns that a federal judge may soon dismantle the Deferred Action for Childhood Arrivals (DACA) program, members are revisiting a possible compromise.
Monday, December 5, 2022
Professor Beth Zilberman joined the faculty in summer 2022 to launch the Immigration Law Clinic at Willamette University College of Law and strengthen immigration course offerings. The fall semester has included a successful soft launch for the Clinic.
Nearly all students enrolled in the Clinic represent clients seeking asylum based on a fear of persecution. Clinic students have also worked on a variety of cases under the Alien Tort Statute and the Torture Victim Protection Act, which allow noncitizens to bring tort claims for violation of the law of nations.
Clinic students also engage in human rights fact-finding and reporting. Most recently, the Clinic prepared Human Trafficking and Native Peoples in Oregon. The report was in follow-up to Modern Slavery in Our Midst: A Human Rights Report on Ending Human Trafficking in Oregon.
The anti-immigrant tenor of the debate leading to the need for a wall, the frustrations relating to it, and its resulting political opportunism are not limited to the United States. Throughout the Western Hemisphere and Europe, political leaders are using similar rhetoric of the immigrant “other” in order to rally the base, deflect criticism, and distract public opinion. This article examines this political phenomenon in the twenty-first century by comparatively evaluating the cases of the United States, the Dominican Republic, Argentina, Brazil, and Chile—five democratic nations in the Western Hemisphere in which immigration became a major issue and immigrants are routinely scapegoated by those in power. In doing so, this article answers the following questions. First, why has immigration become a major campaign and policy issue in these countries since the turn of the century? Second, how and why have these nation-states responded to the perceived ills of immigration by enacting laws and policies designed to curb it and deal with existing immigrants? Third, how have populist politicians exploited xenophobia for political gain and—in doing so—have fueled ultra-nationalism across the hemisphere? And fourth, what has been the role of the United States (as the region’s hegemon) in promoting and/or abetting these anti-immigration policies?
To read this Article, please click here: Rhetoric and the Creation of Hysteria.
ff convicted, Juan David Ortiz faces life in prison without parole. Prosecutors are not seeking the death penalty. The trial started on November 28 and is set to continue later today.
Ortiz, a Navy veteran, was a Border Patrol intelligence supervisor at the time of his arrest in 2018. Ortiz, who officials have said wasn’t on duty during the killings and wore civilian clothes, is accused of killing four women. Each woman was shot in the head and left along roads on the outskirts of Laredo, Texas.
Juan David Ortiz told detectives in the video played in court last week that as he drove along a stretch of road that the women frequented. He told investigators he wanted to “clean up the streets,” and referred to the women as “trash” and “so dirty.”
Ortiz’s attorney, Joel Perez, argued that investigators had jumped to conclusions, and that his client’s confession was “coerced.” He said his client was “broken” and “suicidal” when he made the confession and told investigators he'd had blackouts. Perez said that Ortiz told the investigators that he was a war veteran who'd been experiencing post-traumatic stress disorder.
Sunday, December 4, 2022
The immigration case of Anna Sorokin, whose elaborate fraud captured the world's imagination, continues. The subject of the Netflix series "Inventing Anna", Sorokin served about four years in prison after found guilty of a variety of criminal charges. Sorokin had claimed to be a German heiress named Anna Delvey who had a $60 million inheritance and was raising funds to launch a Manhattan social club. She swindled hundreds of thousands of dollars from friends, banks and New York City luxury hotels to fund a lavish lifestyle.
' ' ' '
Sorokin, who acknowledges that she made `so many bad choices,' has now become one of the most high-profile immigration detainees in recent memory, a famous name in a sea of anonymous petitioners.
Authorities say Sorokin, who went by the name Anna Delvey for years, overstayed her U.S. visa and must return to Germany.
She is fighting that move, arguing that while she may have been able to appeal her case from Germany, `it’s not the same' as doing so from inside the U.S. She was released from prison in October.
The process, she told the Hill in a recent phone interview, has been uncertain and frustrating.
`They don’t have rules for the judges or for the BIA, which is the Board of Immigration Appeals, to make a decision. If you file something, they can take a year or two or three — or like one week — to give you a response. And there are no guidelines. You know, so that’s pretty frustrating, especially when you’re in jail,' Sorokin said.
`There’s no guarantee that you will ever get a response,' she added."
The mania of the World Cup has gripped the world. The US team lost a valiant effort against the Dutch team yesterday.
Throughout the coverage of the soccer, there has been an undercurrent of concern about the host Qatar's treatment of migrant workers. In that vein, NPR reports that:
"Qatar’s World Cup soccer stadiums hold a dark truth. Migrant workers, many from South Asia, bore the burden of building the tiny Gulf nation’s infrastructure — many bringing home stories about grisly working conditions and broken promises. And thousands died, according to human rights investigators. Vinod Kumar was one of them."
Saturday, December 3, 2022
In "After declining early in the COVID-19 outbreak, immigrant naturalizations in the U.S. are rising again", Jeffrey S. Passell and D'Vera Cohn for the Pew Research Center provide data showing that "[a]fter a sharp drop in naturalizations in the early stages of the coronavirus pandemic, immigrants in the United States are becoming citizens in numbers not seen for more than a decade."
According to the data,
"[t]he countries with the smallest proportion of lawful immigrants who are naturalized U.S. citizens (among those with at least 100,000 naturalized citizens overall) are El Salvador, Guatemala, Honduras, Japan and Mexico. Fewer than half of lawful immigrants from these countries are naturalized citizens.
In contrast, the countries with the highest proportion of lawful immigrants who have been naturalized include Cambodia, Guyana, Iran, Laos, Poland, Portugal, Romania and Vietnam. At least 80% of immigrants from these countries have gained U.S. citizenship." (bold added).
For a summary of the report from The Hill, click here.
Friday, December 2, 2022
Can a plaintiff walk into court, challenge a federal regulation, and win a victory that halts the entire government’s ability to enforce that regulation anywhere, against anyone—even parties that played no role in the litigation?
The answer to this question is important, because this tactic has rapidly become an obstacle to governance.
Under President Barack Obama, conservative judges began using a specific power to “set aside” policies, granted to them by a provision of a 1946 law, to halt executive policies nationwide, claiming that Congress intended to award them this sweeping power. Left-leaning judges used the tool to limit President Donald Trump’s efforts to rewrite federal statutes, particularly asylum law, and prompted a huge backlash among Republicans. Today, with President Joe Biden in office, conservative judges have transformed the power to “set aside” policies into an unprecedented weapon of obstruction, voiding agency rules and executive policies so frequently that they have turned the federal judiciary into a kind of shadow president with a permanent veto over the actual, elected president.
It is not actually clear, though, that judges even have the legal authority to wipe federal policy off the books. A strictly textualist interpretation of federal law strongly suggests that they do not. To the contrary, the fact that federal courts have unlawfully expanded their power to interfere with duties of the executive branch seems like a direct attack on the separation of powers.
He goes on to praise the Solicitor General's courage for pointing out the problem to a bench filled with former D.C. Circuit appellate justices -- Roberts, Kavanaugh, Thomas, Jackson -- who, as Roberts says, considered vacatur a staple of practice and used it "five times before breakfast." Her argument is based on a reading of the Administrative Procedure Act that favors a person being able to "set aside" government action against that particular plaintiff under a court's power to bind the parties before it. That practice contrasts with a raft of nationwide injunctions that set aside a policy against everyone. The new interpretation has become increasingly common. Stern calls this the "power of universal nullification" and says courts traditionally have not had this power.
In US v. Texas, Solicitor General Prelogar asserted that the judge who voided Biden’s immigration priorities had no authority to do so, because the APA does not allow vacatur. Her argument built on the work of University of Virginia School of Law Prof. John Harrison and Notre Dame Law School Prof. Samuel Bray, who have shown that by directing courts to “set aside” an unlawful rule, Congress simply meant that courts could reverse the judgment of the agency, and issue relief to the parties before it—rather than to the whole world.
Roberts was incredulous about her argument: “Your position on vacatur,” he told her, “that sounded to me to be fairly radical and inconsistent with, for example, those of us who were on the D.C. Circuit—you know, five times before breakfast, that’s what you do in an APA case. And all of a sudden you’re telling us that, no, you can’t vacate it, you do something different. Are you overturning that whole established practice under the APA?”
Following this blast of indignation, Prelogar backtracked a bit. But she then pointed out that the Justice Department has, in fact, raised versions of this argument during the administrations of George W. Bush, Barack Obama, Donald Trump, and now Joe Biden.
She also explained that the DOJ’s theory would end the bizarre process that has arisen over the last decade: Plaintiffs spread out across the country, filing lawsuits with multiple district courts, in the hopes of convincing just one judge to “set aside” a policy nationwide. Once a judge takes the bait, the government is handcuffed unless (or until) that judge is reversed by a higher court, which can take years of litigation. Even if judges in other states and circuits disagree, they have no power to overrule a different district court."
Immprof Amanda Frost writes about the use of national injunctions generally here and in US v. Texas here. Their importance would continue so long as the Supreme Court permits federal judges to keep setting aside policies from presidents they don't like. Prelogar’s mistake may have been assuming that the court would be willing to curb the power of conservative judges under a Democratic president when it may be unwilling to do so in any circumstance.
A short story from NPR on "new" climate refugees: "They flee their homes not solely because of climactic changes that make it difficult to earn a living but also because of violence sparked by the competition for dwindling resources."
Canada has stiff barriers to granting asylum, yet the surge in Mexicans seeking refuge there persists. Some in Canada cite social media, including YouTube and TikTok videos “talking about how easy it is to come to Canada.” Mexicans also do not need a visa to travel there. And, said one social outreach coordinator, they think it’s safer than the United States, where “they are put in cages. ... People do not feel safe or protected.” Click here for the Associated Press story with details.
Thursday, December 1, 2022
In After a Slump, Legal Immigration to the United States Is Returning to Pre-Pandemic Levels, Muzaffar Chishti and Julia Gelatt for Migration Information Source concludes that legal immigration to the United States appears to have bounced back from steep declines sparked by the global pandemic.
The country looks to have accepted 1 million lawful permanent residents in fiscal year 2022, near the average over the last two decades. This represents a marked turnaround from the low of 707,000 permanent immigrants accepted in FY 2020, the fewest since FY 2003.
This strong recovery belies predictions that the pandemic had allowed the Trump administration to make lasting, deep cuts to legal immigration. While immigration slumped in FY 2020 and FY 2021, the rebound suggests that neither the Trump administration’s policies nor the pandemic have had enduring effects on the level of legal immigration to the United States. Here is a graph from the report:
World Cup mania is everywhere! And there is an immigration angle. Gijsbert Oonk for Migration Information Source reports that World Cup fans "may have noticed a sizable number of players born outside the country they represent on the field, especially for teams representing nations such as Morocco and Qatar. This is not unusual. Athletes born abroad have represented national teams in every World Cup since its inception in 1930, typically accounting for about one in ten players. At times, these players can raise complicated questions about national belonging, citizenship, and migration."
As reported yesterday, an inadvertent leak of confidential personal information by U.S. immigration officials has caused quite a stir. The Associate Press and the Los Angeles Times offer details on the admission yesterday by of U.S. Immigration and Customs Enforcement that personal information of more than 6,000 asylum seekers was inadvertently posted on its website for about five hours. The information included names, nationalities, detention centers where the people were held and numbers used to identify them, according to Human Rights First, which discovered the leak.