Sunday, August 25, 2019
Yesterday, I was driving from Norman, OK to Dallas, TX to see a play at UNT Dallas College of Law (What is "Justice" in a Criminal Trial by Professor Peter Alexander - amazing!). I was still in Oklahoma but my Oklahoma City stations were fading. I scanned the FM dial to find something new. What I stumbled upon was a goldmine -- a call-in talk radio program about immigration, in Spanish.
Texas immigration lawyer Tessy Ortiz answered a range of immigration questions from callers and writers. So why am I telling you about this? I want you know what I got out of the program and how you can listen too.
For starters, it was a nice refresher on Spanish -- both common words and legal terms. Here are some examples:
- Desafortunadamente (unfortunately). I think this was the most frequently used word on the program. I can only emoji my response. ;(
- Depende (it depends). Ah! That staple of the classroom rearing its head in real life. What a thing to tell students!
- No hay fórmulas mágicas (There's no magic formula). Another way of saying "it depends," with more color.
- Si califica (If you qualify). Another "it depends" version.
- Carga pública (public charge). As you might imagine, there were questions.
- 10 años de castigo (10 year bar). I've never needed to translate this phrase before. It's interesting to think of a "bar" (exclusion) as "castigation" (punishment), but of course it is.
- Voten (Vote!). She urged all citizens to vote.
- Cuidase mucho (Take care of yourself). A kind way to sign off with callers.
Perhaps of more interest to readers, the radio program was a great way to hear about common (and not so common) immigration problems. I heard a number of quick, 2-minute cases, each of which would make a compelling real-o-thetical to discuss in class.
As it turns out, this weekly program streams live on Facebook. So you don't need to be tuned into a Texas radio station to catch it. And you can always watch/listen to prior-recorded programming.
An interesting and new (to me) way to keep abreast of current immigration issues.
Gaby Del Valle on Vice reports that, "[s]ince President Trump took office, ICE has arrested at least 20 undocumented activists. As that figure continues to rise, advocates across the country increasingly worry they’re being targeted because of their activism — not their immigration status.
Marcos Baltazar, an undocumented immigrant from Guatemala who sits on the board of the Alabama-based immigrants’ rights group Adelante, was arrested during a routine check-in on Thursday. He and his 18-year-old son are being held at the Etowah County Detention Center, a facility plagued by allegations of human rights abuses."
NPR considers the question whether undocumented workers, as President Trump says, take jobs from U.S. citizens.
AS NPR reports, across the country, immigrants who are in the country unlawfully often do manual, low-paying jobs, and employers say they have no choice but to rely on them. At the same time, the Trump administration has vowed to ramp up workplace raids targeting this shadow workforce.
A few weeks ago, Immigration and Customs Enforcement raided seven chicken processing plants in Mississippi. Agents rounded up 680 workers in one of the largest workplace enforcement actions in contemporary history. They were earning $11 to $12 an hour to dismember poultry — dangerous, brutal, repetitive labor.
The raids have resurrected an old debate: if not immigrants, then who will do the tough jobs in America?
The Pew Research Center estimates there are 7.5 million unauthorized workers in the United States concentrated in agriculture, construction and the hospitality industry. In 2014, about 1.1 million, or 10%, of restaurant workers were unauthorized.
Trump Administration to Make Reforms to Immigration Courts, Board of Immigration Appeals: Will They be Less Independent?
EOIR will publish an Interim Rule on Monday, Aug. 26, 2019. An advance copy is posted here. The summary states, in relevant part, that
"This interim rule reflects changes related to the establishment of an Office of Policy within EOIR in 2017, and makes related clarifications or changes to the organizational role of EOIR’s Office of the General Counsel (“OGC”) and Office of Legal Access Programs (“OLAP”). This interim rule further updates the Department of Justice (“Department”) organizational regulations to synchronize them with EOIR’s regulations, makes nomenclature changes to the titles of the members of the Board of
Immigration Appeals (“BIA” or “Board”), and provides for a further delegation of authority from the Attorney General to the EOIR Director (“Director”) regarding the efficient disposition of appeals. This interim rule also clarifies the Director’s authority to adjudicate cases following changes to EOIR’s Recognition and Accreditation Program (“R&A Program”) in 2017."
The National Association of Immigration Judges posted its reaction to the changes here. Here is the rather blunt gist of the letter:
"In an unprecedented attempt at agency overreach to dismantle the Immigration Court, the Department of Justice, Executive Office for Immigration Review (EOIR) today published a new interim rule, effective next Monday, which takes steps to dismantle the Immigration Court system. DOJ’s action ends any transparency and assurance of independent decision making over individual cases."
Former BIA Chairman and Immigration Judge Paul W. Schmidt posted his reaction, including that he sees the changes as undermining the independence of the immigration courts and BIA, here.
While the Trump administration takes steps to decrease the independence of the immigration courts, the American Immigration Lawyers Association, and many scholars, have called for more independent immigration courts.
"For years, the immigration court system has been plagued by systemic problems that have severely undermined its ability to deliver just and fair decisions in a timely manner. Housed within the DOJ, the Executive Office for Immigration Review (EOIR) is vulnerable to executive branch interference, a structural flaw which the current administration has exploited and which undermines the very integrity of the system. These problems are compounded by a growing case backlog that is nearing 900,000 cases. While oversight would slow the most recent policies, it would not remedy the conflict of interest inherent in an immigration court system that is firmly under the control of the Attorney General. AILA urges Congress to introduce bipartisan legislation that establishes an independent immigration court system, outside the DOJ, under Article I of the Constitution." (bold added).
Saturday, August 24, 2019
― Sigmund Freud
One can only ask what is going on in the U.S. Department of Justice when it comes to immigration? Earlier this month, the Trump administration sought to de-certify the immigration judges union. Now, we learn in a story getting much attention from Hamed Aleaziz for Buzzfeed that an email sent from the Justice Department to immigration court employees this week included a link to an article posted on a white nationalist website that “directly attacks sitting immigration judges with racial and ethnically tinged slurs.” A link to the letter sent by the immigration judges union can be found at the link above.
According to the National Association of Immigration Judges, the Justice Department’s Executive Office for Immigration Review (EOIR) sent court employees a link to a blog post from VDare, a white nationalist website, in its morning news briefing earlier this week that included anti-Semitic attacks on judges.
The Supreme Court’s decision in Pereira v. Sessions rocked the immigration world in June 2018. Where are we now about one year out from that important decision? It was straightforward in one sense: a putative notice to appear (NTA) lacking the time and place of hearing was insufficient to “stop time” for purposes of cancellation of removal under INA 240A. Pereira paved the way for potentially thousands to seek relief if they were issued defective NTAs. However, the full implications were unclear. What is left up to future courts to discern, and ultimately the Supreme Court itself, is how narrowly or broadly to construe Pereira.
Friday, August 23, 2019
The Executive Office for Immigration Review today announced the investiture of six new Board of Immigration Appeals (BIA) members. BIA Chair David L. Neal presided over the investiture during a ceremony held Aug. 23, 2019. All six Board members were appointed by Attorney General William Barr:
1. William A. Cassidy, Board Member
2. V. Stuart Couch, Board Member
3. Deborah K. Goodwin, Board Member
4. Stephanie E. Gorman, Board Member
5. Keith E. Hunsucker, Board Member
6. Earle B. Wilson, Board Member
Click the link above for bios. All of the new Board members previously served as immigration judges.
UPDATE (Aug. 24): Tal Kopan for the San Francisco Chronicle reports that "The Trump administration has promoted six judges to the immigration appeals court that sets binding policy for deportation cases — all of whom have high rates of denying immigrants’ asylum claims.
The six come from courts that have higher asylum-denial rates than the national average, including two from a court that has drawn complaints of unfair proceedings from immigration attorneys and advocates. A third has a long history of denying asylum to domestic violence victims, something the Justice Department has also sought to do."
The historic Flores settlement has set the standards for the detention of migrant children for more than twenty years. President Trump's aggressive, and frequently changing, immigrant detention policies have helped place the settlement in the news. Looking for a short, sweet , and up-to-date explanation of the Flores Settlement for immigration class? Here is my short take on The Conversation, including a brief explanation of the Trump administration's rationale for the final rule abrogating the settlement. We will see if that comes to pass. As I concluded in the update on Flores, "The rule is slated to take effect on Oct. 23. But immigration and civil liberties advocates have vowed to challenge the rule in court, which will put the proposed change in front of U.S. District Judge Dolly M. Gee. Gee is the judge who denied the administration’s request last year to extend family detentions."
Careful readers know that I love poetry. It's a medium that manages to convey volumes of emotion in short bursts of words.
If you are a child of a refugee, you do not
sleep easily when they are crossing the sea
on small rafts and you know they can't swim.
My father couldn't swim either. He swam through
sorrow, through, and made it to the other side
on a ship, pitching his old clothes overboard
at landing, then tried to be happy, make a new life.
But something inside him was always paddling home,
clinging to anything that floated--a story, a food, or face.
They are the bravest people on earth right now,
don't dare look down on them. Each mind a universe
swirling as many details as yours, as much love
for a humble place. Now the shirt is torn,
the sea too wide for comfort, and nowhere
to receive a letter for a long time.
And if we can reach out a hand, we better.
I start teaching asylum with Home by Warsan Shire. I like using that poem because it's from the perspective of the asylum seeker themselves. Her youtube reading of the poem brings tears to my eyes every time. The emotional impact of that work is undeniable.
Here, Mediterranean Blue offers something different. It captures the ongoing struggles of refugees, decades later, after resettlement. It's a poem that puts you a little off center. You'd think that finding refuge would be a miracle cure where all else that follows would be golden. This poem indicates something different. I think it might be a good end to an asylum course/segment. It says - look, we could do more than just offer a place to leave. We could be a hand to hold when the longing for the past is overwhelming.
This remarkable map shows the 800 languages spoken in New York City. The map is featured in " Nonstop Metropolis: A New York City Atlas" by Rebecca Solnit and Joshua Jelly-Schapiro. According to the Endangered Language Alliance, Queens speaks more languages than anywhere else in the world. (Original story from Business Insider.)
Thursday, August 22, 2019
Immigration Article of the Day: The Boundaries of Habeas: Due Process, the Suspension Clause, and Judicial Review of Expedited Removal Under the Immigration and Nationality Act by Peter Margulies
The Boundaries of Habeas: Due Process, the Suspension Clause, and Judicial Review of Expedited Removal Under the Immigration and Nationality Act by Peter Margulies, Roger Williams Univ. Legal Studies Paper No. 192
Recent events have highlighted the vexed relationship between habeas corpus, due process, and immigration law. The Supreme Court may be poised to review the Ninth Circuit's decision in Thuraissigiam v. Dep’t of Homeland Security holding that curbs on judicial review in the Immigration and Nationality Act's expedited removal provisions violate the Suspension Clause. At the same, the Trump administration has expanded expedited removal's temporal and geographic scope, making its statutory curbs on judicial review applicable to the United States' interior for foreign nationals who have been in the country for less than two years. That expansion may severely strain the U.S. connections of foreign nationals affected by the change.
Both the Ninth Circuit's decision in Thuraissigiam and the Department of Homeland Security's expansion of expedited removal neglect the relationship between habeas and other constitutional rights, such as procedural due process. The Ninth Circuit's decision disregarded the traditional view that foreign nationals seeking admission are requesting a privilege, not invoking an enforceable constitutional right. In disaggregating habeas and due process, the Thuraissigiam court read too broadly the Supreme Court's decision in Boumediene v. Bush making habeas available to Guantanamo detainees. The government's expansion of expedited removal discounts the role in due process analysis played by the U.S. ties of foreign nationals who have already entered the United States. Through expanded expedited removal, the government wants to relegate entrants to the same unreviewable privilege-not-rights regime now occupied by candidates for admission.
The Article seeks to remedy the deepening confusion wrought by both the Ninth Circuit and the expansion of expedited removal. Instead of disaggregating due process and habeas, the Article reaffirms their doctrinal and practical relationship. In place of the overly intrusive review that Thuraissigiam contemplates, the Article suggests a new option, inquisitorial integrity, that builds on the good-faith judging stressed in the Supreme Court's decisions on extradition and transfers of custody to a foreign state. That option — more deferential than the Ninth Circuit's approach in Thuraissigiam — nonetheless introduces judicial review into admission cases, where nonreviewability has traditionally held sway. The Article similarly invokes the interaction of due process and habeas to find that more rigorous error-correction judicial review is required to disrupt the U.S. ties of individuals subject to expanded expedited removal.
Numerous media outlets are reporting that President Donald Trump said at a rally that he is "seriously" considering ending US birthright citizenship despite the fact that such a move would face immediate legal challenge and is at odds with Supreme Court precedent and the 14th Amendment. The 14th Amendment of the Constitution guarantees birthright citizenship and states: "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."
"We're looking at that very seriously, birthright citizenship," Trump told reporters outside the White House, echoing his administration's previous vow to unilaterally end the process by which babies born in the country automatically become citizens. He did not elaborate on his plans, including the controversial matter of whether he would approach this issue through executive action or a congressional action.
Video of the rally appears on CNN.
From the Bookshelves: The Long Honduran Night: Resistance , Terror, and the United States in the Aftermath of the Coup by Dana Frank
This book offers insights on why so many asylum-seekers are coming from Honduras to teh United States.
The book is a powerful narrative recounting the tumultuous time in Honduras that witnessed then-President Manuel Zelaya deposed by a coup in June 2009, told through first-person experiences and layered with deeper political analysis. It weaves together two perspectives; first, the broad picture of Honduras since the coup, including the coup itself, its continuation in two repressive regimes, and secondly, the evolving Honduran resistance movement, and a new, broad solidarity movement in the United States.
Although it is full of terrible things, this not a horror story: this narrative directly counters mainstream media coverage that portrays Honduras as a pit of unrelenting awfulness, in which powerless sobbing mothers cry over bodies in the morgue. Rather, it’s about sobering challenges and the inspiring collective strength with which people face them.
Dana Frank is a professor of history at the University of California, Santa Cruz. She is the author of Baneras: Women Transforming the Banana Unions of Latin America from Haymarket Books. Since the 2009 military coup her articles about human rights and U.S. policy in Honduras have appeared in The Nation, New York Times, Politico Magazine, Foreign Affairs.com, The Baffler, Los Angeles Times, Miami Herald, and many other publications, and she has testified in both the US Congress and Canadian Parliament.
California Immigration Consultants Act (AB 1753): Protecting Vulnerable Immigrants From Unscrupulous Providers of "Legal Advice"
Abuses of immigrants by unscrupulous "notarios" providing legal advice to desperate immigrants has long been a problem in many regions of the United States, including California. According to one recent news report, "Growing fear within the undocumented immigrant community has bred opportunity for fraudulent immigration services as more people seeking protection from deportation flock toward immigration consultants posing as lawyers. According to Arnold Jaffe, a Santa Barbara attorney who specializes in immigration law, more than half of his clients report that they had been `ripped off' by immigration consultants misrepresenting themselves as attorneys."
To address that concern, the California Legislature is considering Assembly Bill 1753, which would ensure that immigrants and their families receive legal services in high-stakes immigration matters only from individuals who are qualified to provide those services. It is sponsored by Assembly Member Wendy Carrillo. The Immigration Consultants Act (ICA) regulates persons who provide immigration assistance and are neither attorneys nor accredited by the federal government. The ICA authorizes immigration consultants to provide mainly clerical assistances and prohibits them from providing legal advice or representing clients in immigration court. Specifically, immigration consultants can: 1) complete forms provided by a Federal or State Agency, but not advise a person as to their answers on those forms; 2) translate a person's answers to questions posed in those forms; 3) secure for a person supporting documents, such as birth certificates, which may be necessary to complete those forms; and 4) submit completed forms on a person's behalf and at their request to the United States Citizenship and Immigration Services.
Among other things, the ICA requires immigration consultants to register with the State, pass background checks, post a $100,000 bond, establish client trust accounts, provide mandatory disclosures regarding the consultants' inability to practice law and execute written contracts before providing services.
Although the ICA allows immigration consultants to perform only limited, non-legal tasks, immigration consultants sometimes disregard state law restrictions and dispense legal advice. Since the ICA was enacted in 1986, it has been repeatedly amended to tighten regulations on consultants, who face civil and/or criminal liability for violating the law. Still, many immigration consultants engage in the unauthorized practice of immigration law. Even well-intentioned immigration consultants who go outside the ICA’s limits by providing legal services can cause great harm to immigrants and their families. Immigration law is a complex area. Such complexities can lead to mistakes and wrong legal advice, even if unintended, and leave undocumented immigrants vulnerable to the consequences, which are often irreversible when immigrants are deported and families are torn apart. Immigration consultants may claim to charge less than an attorney, but the risks of deportation and the denial of citizenship or residency involved in hiring an immigration consultant far outweigh any cost savings. Additionally, the State is continuing to increase its funding of free and low-cost immigration legal services
The consequences of a mishandled immigration matter have never been more serious. In June of 2018, federal policy was changed in a way that puts immigrants at greater risk of deportation. U.S. Citizenship and Immigration Services (USCIS) officials now have increased discretion to deny immigration applications, petitions or requests. They can also start the deportation process for denied immigration petitions and refer cases to the Immigration and Customs Enforcement (ICE) on criminal or security grounds. This change has effectively turned USCIS from an immigration benefit adjudicator into an enforcement entity, which leaves little room for error in the immigration process.
Federal law authorizes only the following people to represent individuals in immigration matters: (1) attorneys in good standing; (2) law students, provided they are under the supervision of an attorney and do not receive compensation; (3) “reputable individuals,” who are of good moral character, provided they have a preexisting relationship with the client and do not receive compensation; (4) “accredited representatives,” who have been authorized by the Executive Office for Immigration Review (EOIR); and (5) “accredited officials” of the client’s foreign government.
Federal law allows unauthorized individuals to assist solely by completing blank spaces on immigration forms, as long as assistance is only: (1) for a nominal fee and (2) by one who does not hold himself/herself out to be qualified in legal matters or immigration procedure. Federally-unauthorized individuals who do anything beyond completing blank spaces (such as helping choose which immigration forms, if any, to fill out), charge more than a nominal fee, or claim to have expertise in immigration matters, are violating federal law.
AB 1753 makes it unlawful for a person, other than a licensed attorney, a paralegal acting under the supervision of an attorney, or a person or organization federally-authorized to represent individuals in immigration matters, to provide immigration-related services for a fee in California. The bill also stablishes clear, simple and accessible procedures for victims and others to report immigration services fraud to state and local consumer protection agencies.
Students of immigration law and practice know of the law's tremendous complexity and that a well-meaning non-lawyer can do a great deal of harm if she does not understand the intricacies of immigration law. AB 1753 is the right move to protect vulnerable immigrant communities in a time of great stress.
Wednesday, August 21, 2019
From the Bookshelves: State of Resistance: What California’s Dizzying Descent and Remarkable Resurgence Mean for America’s Future by Manuel Pastor
A leading sociologist’s brilliant, revelatory argument that the future of politics, work, immigration, and more can be found in California
“Provocative and deftly argued.” —Kirkus Reviews
Lauded by James Fallows on the front page of the New York Times Book Review as “concise, clear, and convincing” upon its hardcover publication, State of Resistance makes the case for honestly engaging racial anxiety in order to address our true economic and generational challenges, renewing our commitment to public investments, cultivating social movements and community organizing, and more.
Once upon a time, any mention of California triggered unpleasant reminders
of Ronald Reagan and right-wing tax revolts, ballot propositions targeting undocumented immigrants, and racist policing that sparked two of the nation’s most devastating riots. In fact, California confronted many of the challenges the country faces now—decades before the rest of us.
As white residents became a minority and job loss drove economic uncertainty, California had its own Trump moment twenty-five years ago but has become increasingly blue over each of the last seven presidential elections. Today, California is leading the way on addressing climate change, low-wage work, immigrant integration, overincarceration, and more. Pastor expertly reveals how the Golden State did it.
And as Neera Tandeen, president and CEO of the Center for American Progress, said, “State of Resistance paints a brilliant picture of how our generation can seize the opportunity to forge a more inclusive, just, and prosperous America for every family.”
I found myself re-watching all four Hunger Games movies with one of my kiddos this summer. We were on the last movie -- Mockingjay Part 2 -- when it hit me. This scene between Katniss and Gale in District 2 is the perfect vehicle for teaching Matter of A-C-M (BIA 2018).
Matter of A-C-M is all about when and how an individual provides "material support" to a terrorist organization. The respondent in that case performed "cooking and cleaning for the guerillas under the threat of death." If you're unfamiliar with the decision, you might read "under the threat of death" and think there's no way that this woman was found to have provided material support to a terrorist organization. You would be wrong.
Gale, it appears, would agree with the BIA. Play 3:55-4:34. For an even briefer cut check out 4:25 to 4:34. HG enthusiasts who want a longer cut can go from 3:55 to 4:40.
For the record, I have no idea what language those subtitles are. It was the only online clip I could locate of this scene.
Here's the key language from Gale: "Even if those civilians are just mopping floors, they're helping the enemy. And if they have to die, I can live with that. No one who supports the capitol is innocent."
The 937 mainly German-Jewish refugees on board the MS St. Louis were denied entry to Cuba, the United States and Canada in 1939 and had to sail back to Europe.
The Trump administration's tightening of the public charge exclusion has sparked controversy and legal challenges. The public charge exclusion has a long, if not illustrious history. I look at that history in connection with an analysis of California's Proposition 187, which would have stripped immigrants of all public benefits, including education, in this article. At the federal level, the public charge exclusion was added by a law passed by Congress in 1882 at the height of a xenophobic outburst against Chinese immigrants.
Laurel Leff on Marketwatch reminds us of another use of the public charge exclusion to block admissions to Jewish persons fleeing Nazi Germany. During World War II, approximately 300,000 additional Jewish refugees could have gained entry to the United States without exceeding the nation’s existing quotas. The primary mechanism that kept them out: the immigration law’s “likely to become a public charge” clause.
Consular officials with the authority to issue visas denied them to everyone they deemed incapable of supporting themselves in the U.S. It is not possible to say what happened to these refugees. Some immigrated to other countries that remained outside Germany’s grip, such as Great Britain. But many — perhaps most — were forced into hiding, imprisoned in concentration camps and ghettos, and deported to extermination centers.
Leff notes that, "[a] someone who has studied European Jews’ attempts to escape Nazi persecution and immigrate to the U.S., the [Trump] administration’s evocation of the public charge clause is chilling."
Immigration Article of the Day: Universal Representation: Systemic Benefits and the Path Ahead by Lindsay Nash
Universal Representation: Systemic Benefits and the Path Ahead by Lindsay Nash, Journal on Migration and Human Security
This paper describes the genesis and expansion of the universal representation model for persons facing removal from the United States. This public defender-like system — which takes different forms in different communities – is based on the idea that indigent individuals should be entitled to counsel regardless of the apparent merits or political palatability of their cases. The paper describes the benefits of such systems, such as a fairer process for persons facing removal, a more just and efficient immigration adjudication system, and strengthened communities. It also considers challenges regarding the criteria for representation, the need for context-specific models, possible restrictions on representation, and expansion to additional populations, particularly non-detained persons. An overarching challenge in “universal” representation models is to choose the category of persons in removal proceedings who are most in need, most deserving, or who will gain the greatest relative benefit from representation. The paper concludes that the more than 15 existing or soon-to-launch universal representation programs provide a clear picture of the limitations and eligibility restrictions likely to appear as the movement progresses.