ImmigrationProf Blog

She was deported 15 years ago. This week, she reunited with her kids in Washington

A heartbreaking story of a family torn apart.  Our immigration laws at work.

KJ

Undocumented California flood victims raise alarms about discrimination based on immigration status

 

Flooding in parts of California has been in the news after a long and rainy winter.  The San Jose Mercury News reports on one community, not far from the resort town of Monterey, that has been devastated by the floods.  Last Thursday,

"[d]ozens of angry flood victims marched . . . to demand respect and dignity for the storm-ravaged town’s about 3,000 inhabitants, raising alarms about alleged government discrimination — based on immigration status — against people seeking aid, and demanding that all those suffering be treated equally.

Since torrents of water and contaminated mud decimated the town of primarily agricultural and blue-collar workers, flood victims have been able to return to their homes and begin the arduous journey of rebuilding. But for many who showed up [for the march], the current means-tested aid available only to some — with others being turned away at shelters and aid lines, or filling out endless forms applying for assistance that hasn’t come — highlights systemic discrimination against undocumented residents of the agricultural community."

KJ

Federal Judges Step into the Void to Set U.S. Immigration Policy

In "Federal Judges Step into the Void to Set U.S. Immigration Policy," Muzaffar Chishti and Kathleen Bush-Joseph consider the role of the federal courts in recent years in U.S. immigration policy. Congress for decades has failed to pass meaningful immigration reform.  Presidents have sought to fill the gap. States have challenged some of the executive's actions in federal court.  The article considers the consequences. 

Here is a table listing some of the legal challenges to executive immigration initiatives.  

Table 1. Litigation Involving Select U.S. Immigration Policies

KJ

Immigration Article of the Day: Civil Rights and Immigration: A One-Way Ticket Back to the 1960s by Desiree Barbosa

 

Civil Rights and Immigration: A One-Way Ticket Back to the 1960s by Desiree Barbosa, 50 S.U. L. Rev. _ (2023)

Abstract

In 1962, the Reverse Freedom Rides were conceived as a means of restoring the declining political influence of the White Citizens’ Council. The White Citizens’ Council, established in 1954, became the most powerful political force in opposition to racial integration. The Council executed a plan to migrate people of color northward on false pretenses of freedom from poverty and social injustice. Six decades later, Venezuelan immigrants face inequality from a government official on the sole basis of a political scheme—two different eras, but likewise familiar oppressions on a class of individuals centered around race and national origin. Running for re-election at the time, Florida Governor Ron DeSantis saw an opportunity to make a political move in transporting non-citizens northward on false pretenses to discredit sanctuary states.

This comment reviews the protections of the Fourteenth Amendment and the historical development of the Civil Rights Movement, Brown v. Board of Education, the Freedom Rides, and the Reverse Freedom Rides of the 1960s. In addition, the comment compares the tactics used by George Spellman in the 1960s to the tactics used in the “Modern-Day Reverse Freedom Ride,” corroborated and organized by Governor DeSantis.

The actions of Governor DeSantis resulted in many constitutional violations. This comment shows how the courts might approach each violation and the likely consequences these immigrants face if not addressed – deportation and imminent persecution. It concludes with suggestions for the court — that the court hold government officials responsible for their actions and safeguard the protections afforded under the Fourteenth Amendment to immigrants seeking asylum.

KJ

Immigration Article of the Day: Pedagogy of Prefiguration by Sameer Ashar

In honor of Cesar Chavez day

UC Irvine Law School Professor and Director of the Workers, Law, and Organizing Clinic Sameer Ashar recently published Pedagogy of Prefiguration in the Yale Law Journal Forum. The piece connects his visionary writings on social movement lawyering and clinical teaching with the vital insight that effective advocacy requires thinking that goes "outside the terms and constraints of our present late-neoliberal moment of global climate emergency and democratic crisis." Professor Ashar relays experiences from the UC Irvine Workers, Law, and Organizing Clinic that used utopian thinking to transform the social arrangements that perpetuate labor exploitation -- illegality, austerity, and domination -- for immigrant workers. The WLO supported immigrant worker collaboratives in their campaign to improve difficult working conditions that had been exacerbated by COVID-19 after a walkout led to retaliatory firings. The article reflects,

Working with UFW lawyers, the WLO clinical team researched potential claims, interviewed workers, and began informal discovery. We drafted a complaint for use in state court. In undertaking these tasks, we continued to guide the work by asking a set of questions: In the context of this type of traditional litigation case, how might a clinic advance a more critical understanding of the conditions to which “essential workers” were subject during the pandemic? How do we accentuate and elevate the worker solidarity that provoked the terminations? How might we depart from standard representation in litigation to think prefiguratively with our clients and collaborators? Toward what future might this work gesture?

Additional inspiring examples from WLO's clinical work appear in the article and in this LPE blog. Professor Ashar will  elaborate on next steps in his research in a lecture for the Center for Race, Immigration, Citizenship, and Equality (RICE) on Thursday, April 6, 2023. Commentary will be provided by UC Law SF Professor Veena Dubal. Registration for the inperson/virtual hybrd lecture is here and more information can be obtained by contacting RICE Director Ming H. Chen at rice@uchastings.edu.

 

MHC

Immigration Article of the Day: Regulatory Policymaking and Democratic Accountability by Shoba Sivaprasad Wadhia & Christopher J. Walker

Regulatory Policymaking and Democratic Accountability by Shoba Sivaprasad Wadhia & Christopher J. Walker, Georgetown Journal of Law & Public Policy, Vol. 21, Forthcoming 2023

Abstract

Motivated in part by Congress’s failure to legislate, presidents in recent years seem to have turned even more to the regulatory process to make major policy. It is perhaps no coincidence that the field of administrative law has similarly seen a resurgence of scholarship extolling the virtues of democratic accountability in the modern administrative state. Some scholars have even argued that bureaucracy is as much as if not more democratically legitimate than Congress, either in the aggregative or deliberative sense, or both.

In our contribution to this Ensuring Democratic Accountability in the Administrative State Symposium, we make a modest intervention to suggest that visions of democracy in administrative law need to better take into account that presidents pursue major policymaking through modes of regulatory action beyond notice-and-comment rulemaking. They include interim final rulemaking, subregulatory agency guidance, executive orders and other presidential directives, formal agency adjudication, and informal adjudication and orders. These other modes of regulatory policymaking are far less democratically accountable, in terms of leveraging agency and public expertise and engaging stakeholders and issues in a public and transparent manner. As such, we argue that presidents should embrace notice-and-comment rulemaking as the default regulatory mode when it comes to making major policies through administrative action. We conclude, moreover, that notice-and-comment rulemaking, even when done well, is no panacea for democratic accountability. Congress needs to play its proper role in modern governance when it comes to questions of deep economic, moral, and political significance.

KJ

ABA Primer: Immigration Enforcement Mechanisms at the U.S. Border

The American Bar Association Commission on Immigration has updated its primer on immigration enforcement mechanisms at the U.S. border. The handbook explains various methods used by the federal government to enforce immigration law at the U.S. southern border, with links to applicable laws, policies, court decisions, and recent developments. We will continue to update the primer throughout the year.

The primer is available for free online at Border Primer (americanbar.org)

KJ

LA Times Op Ed by Karen Musalo and Audrey Macklin: Now Trump’s Cruel Border Policy Is Spreading in Canada

Karen Musalo and Audrey Macklin have authored an Op Ed in the Los Angeles Times criticizing Canada's expansion of its Safe Third Country Agreement, which allows it to return asylum seekers to the United States.

They write:

The Safe Third Country Agreement and related policies subvert the obligations to which Canada and the U.S. are subject under international refugee law. They undermine the existing global system of protection. But most tragically, they abandon principle and humanity, and set off a chain reaction that ends up returning refugees to persecution.

The full Op Ed is available here.

IE

Immigration Article of the Day: Is Performing an Abortion a Removable Offense? Abortion Within the Crimes Involving Moral Turpitude Framework by Lauren Murtagh

Is Performing an Abortion a Removable Offense? Abortion Within the Crimes Involving Moral Turpitude Framework by Lauren Murtagh, 109 Va. L. Rev., Forthcoming

Before Roe v. Wade was decided, the Board of Immigration Appeals (BIA) found that performing an illegal abortion was a crime involving moral turpitude in the context of immigration law. As a result, pre-Roe, a noncitizen could potentially be removed from or declared inadmissible to the United States if they were convicted of performing an illegal abortion. Since the BIA’s last decision pertaining to abortion and moral turpitude, however, Roe has been both decided and overruled, suggesting that society’s view on the “morality” of abortion is not necessarily consistent with its view at the time these cases were decided. Thus, these earlier decisions should not be taken as dispositive. The term “crimes involving moral turpitude” has been interpreted by courts and the BIA to evolve as the values of society change. This fluid definition has led to an inconsistent application of the term moral turpitude over time and across jurisdictions.

This paper explores the case law related to moral turpitude and abortion in order to analyze the post Dobbs v. Jackson Women’s Health Organization abortion bans within the immigration moral turpitude context. Performing an illegal abortion should not be found to be a crime involving moral turpitude. Many abortion statutes do not meet the moral turpitude intent requirement, and, even under those that do meet the intent requirement, the behavior itself would not be considered base, vile, and depraved by federal standards.

KJ

Justice Department Seeks to Add 150 New Immigration Judges

Officuial U.S. Government Photo

Voice of America reports that the U.S. Department of Justice seeks to add immigration judges in hopes of reducing a case backlog.  In its budget proposal for the fiscal year 2024, the department seeks $1.46 billion for the Executive Office for Immigration Review  The request would enable the agency to hire 965 new judicial staff, including 150 new immigration judges,Attorney Ge neral Merrick Garland said in written testimony before a Senate appropriations subcommittee.  He stated that "We are requesting $1.46 billion – a 69.2% increase – for the Executive Office for Immigration Review to hire nearly 1,000 new staff. This includes 150 new immigration judges. These resources will support our efforts to apply the immigration laws justly and efficiently."

KJ

Conference: Refugees at Risk? Or Refugees as an International Risk?

Refugees at Risk?  Or Refugees as an International Risk? 9 a.m. - 5:30 p.m., April 5, 2023

2.7 MO CLE credits available

Join this full-day workshop on International Refugee Law featuring:

James Hathaway, James E. and Sarah A. Degan Professor of Law at University of Michigan Law School

Petra Molnar, associate director of the Refugee Law Lab at York University

Benedita Menezes Queiroz, professor at Universidade Catolica Portuguesa

Lauren Bartlett, associate professor and director of the Human Rights at Home Litigation Clinic at Saint Louis University School of Law

Pedro Rodriquez-Ponga SJ, Universidad de Deusto

Rosario Frada, founder and director, Humanity on the Move

 

KJ

Dems in Congress Push Back on President's Border Policies

Official White House Photo

 

Newsweek reports that

"In recent months, some have argued Biden's border policies have begun to resemble those of his predecessor, including fixes to physical barriers at the border some have equated to a wall as well as changes in policy that have come amid increasing pressure from the GOP majority in the House of Representatives for his administration to take action on the border.

Now some of the most powerful Democrats in Congress are publicly pushing back against him.

Over the weekend, a group of 19 Democratic Senators led by Senate Majority Leader Chuck Schumer and Democratic Whip Richard Durbin released a letter calling on Biden to reverse course, saying the policy once deployed by former President Donald Trump as well as his predecessor, Barack Obama, had a `disastrous effects on migrant families and children' without any corresponding improvement in border security or deterrence.

According to numbers from the Department of Homeland Security, the letter read, the detention policy actually corresponded with an increase in unique encounters of children and individuals in families by an average of 57 percent annually, with the total cost of the program eclipsing $866 million over the course of three years to detain approximately 3,000 families." (bold added)

KJ

Helping an undocumented immigrant in Florida could soon be against the law

 

https://t.co/7NgAwgGIbh - Helping an undocumented immigrant in Florida could soon be against the law….my oped on why this is an unnecessary and particularly cruel law..

— Elizabeth Aranda (@drlizaaranda) March 26, 2023

News from Florida.  Professor Elizabeth Aranda writes:

"Imagine driving your elderly mother to a doctor’s appointment and being charged with a third-degree felony. Or having your neighbor over for dinner, only to be arrested. Imagine your pastor giving a young couple shelter in your church, only to be taken into police custody.

If passed, SB 1718 would criminalize lending a helping hand if the object of that help is an undocumented immigrant — it tears up the very fabric of social ties and trust that brings cohesion to a community. This isn’t about punishing immigrants who help immigrants — U.S. citizens would be criminalized too for lending support. Which leads to the question: What is the real purpose of this bill?

SB 1718 is intended not only to completely isolate undocumented immigrants from their support networks, but it will instill harm; it is sanctioned state violence against immigrants and U.S. citizens alike, and it is bad policy likely intended to be weaponized politically."

KJ

 

A Roadmap for immigration reform?

A report from Brookings ("A roadmap for immigration reform:  Identifying weak links in the labor supply chain" by Dany Bahar and Greg Wright) offers a labor market justification for immigration reform.  Download the full report here.  "This report aims to support these necessary reforms by highlighting the areas of the economy that are most in need of workers. Importantly, our approach not only highlights occupations that are—and will continue to be—in greatest demand, but also the occupations that are most complementary to the existing workforce, ensuring that efforts to meet these labor market needs will support all workers. "

KJ

Deadly fire at detention center raises questions about asylum seeker safety in Mexico

 

President Trump's Remain in Mexico policy required asylum seekers to wait in Mexico while their asylum claims were being decided.  The assumption was that the noncitizens would be safe there.  A number of President Biden's policies rest on similar assumptions. 

Is the assumption of safety for asylum seekers in Mexico justified?  ImmigrationProf has posted (here, here) on the tragic fire at an immigrant detention center in Ciudad Juarez, Mexico, just across the border from El Paso, Texas.  Mexico's President Obrador publicly stated that immigrant detainees set mattresses on fire in protest of their deportation.  One news report offered thoughts on the incident:

"At least 40 people died. The victims are mostly migrants from Guatemala and Venezuela. 

The incident raises questions about Mexico's ability to protect refugees who are forced to wait on U.S. asylum cases there under President Joe Biden's latest immigration strategy. 

`I don't know what specifically they were supposed to have done, but I think they clearly did not have systems in place to prevent this type of disaster,' said Sara Ramey, an immigration attorney and director of the Migrant Center for Human Rights. `They should have.'" 

KJ

 

 

UK's Proposed "Illegal Migration Bill"

The UK's new proposed "Illegal Migration Bill" would expand detention, deny bail to persons who are detained, place caps on the numbers of refugees, among other punitive measures. The bill would also return many migrants back to a third country, such as Rwanda. For a BBC summary of the bill's components, see this article.

The Bill has drawn sharp criticism from nonprofit organizations, scholars, and other stakeholders. More than 60 stakeholders have written to Prime Minister Rishni Sunak asking that the bill be withdrawn as it will deny the right to asylum and result in other human rights abuses. As the Guardian reports, the bill would also allow for the detention of women, children and other vulnerable migrants. Former Prime Minister Theresa May has criticized the bill for not creating exemptions for modern slavery victims.

IE

University of St. Thomas School of Law Journal of Law and Public Policy Symposium: The Immigration and Refugee Crisis

On April 14, 2023, the University of St. Thomas School of Law Journal of Law and Public Policy is hosting a Symposium on The Immigration and Refugee Crisis. 

The conference will feature local, national, and international speakers. 

Here is a description of the conference theme:

The twin crises of mass immigration and refugees present the world with the prospect of a human catastrophe of enormous dimensions. Millions of persons around the world are on the move. They may be driven from their homes in the Middle East or in Eastern Europe by war; forced from their places of origin in Latin America or Africa by economic upheaval; or have been begrudgingly evacuated from their home islands before calamitous climate change erases the entire piece of land.

For the agenda or to register, check the conference page here.

IE

Tragedy at Detention Center in Ciudad Juárez, Mexico

From the National Network for Immigrant and Refugee Rights:

El Paso, Texas – The National Network for Immigrant and Refugee Rights expresses its deepest condolences for the families of the 39 migrants who lost their lives, and for the 29 migrants who were injured in a fire at a migrant detention center in Ciudad Juárez on Monday night.  

We also use this opportunity to call attention to the dual and unequal nature of the migration regime that enables the mobility of those privileged to own passports and visas while controlling and criminalizing the mobility of primarily people of color, who are escaping poverty, climate, social, and military disasters. 

The Instituto Nacional de Migración (National Institute of Migration) of Mexico confirmed there were a total of 68 men from Central and South America in the detention facility, indicating that every person detained was harmed or killed in the fire. 

This tragedy, like the many others that have become a normal feature of our immigration and asylum systems,  will continue to happen if policymakers are unwilling to transition to rights-centered policies to address international migration. Despite the thousands of documented deaths, disappearances, and systematic human rights abuses, the Biden administration continues to enact policies that restrict access to live-saving protection, including asylum bans and outsourcing asylum responsibilities to other countries. International displacement and survival migration should not be criminalized and people in vulnerable situations should never be detained.

NNIRR stands in solidarity with the families of migrants who have perished, those who were injured, and the thousands of others who have disappeared or lost their lives along their migration journeys. Deterrence policies, militarization, and the criminalization of those internationally displaced cannot continue to be the default response to migration. We urge the Biden administration and governments in the region to  address the dual crisis of human rights and humanitarian protection at the border. 

NNIRR joins our partners and allies in calling on the administration and congress to save lives and expand the availability of pathways for regular and safe migration, and to take measures that guarantee the full recognition of migrants’ human rights, their dignity, integrity, and well-being, regardless of immigration status.

bh

125th Anniversary Celebration of birthright citizenship in birthplace of Wong Kim Ark

Two hundred people packed into SF Chinatown to mark the 125-year anniversary of a court ruling that guaranteed birthright citizenship in the United States over the weekend. The celebration, hosted jointly by the 6 companies and the Chinese Historical Society of America, featured commemorations from public officials and a lively discussion among a group of law professors and legal historians researching the legacy of Wong Kim Ark. Panelists included Professor Charles McClain, Professor Gabriel Jack Chin, Professor Amanda Frost, and 1990 Dirctor Susana Liu-Hedberg. Yours truly moderated.  (Coverage from Channel 7 news (timestamp is 9:26) and English and Chinese-language newspapers continues to unfold as the week of events culminates today, March 28, 2023. Photo, L-R Chen, McClain, Chin, Frost, Liu-Hedberg.)

In addition, the Center for Race, Immigration, Citizenship, and Equality (RICE) at UC Law San Francisco hosted a March 23 lecture from Professor Sam Erman (video posted) and a Chinatown tour that included a stop (and selfie) in front of Wong Kim Ark's birthplace. (Photo, L-R: Ming Hsu Chen, Amanda Frost, Rachel Rosenbloom, Sam Erman.)

Continuing coverage of the Wong Kim Ark decision will be added to this thread: Professor Amanda Frost wrote an op-ed for the Washington Post and Jack Chin spoke with NPR.

MHC

 

ICE Detainees Sue GEO Group Over Use of Hazardous Chemicals

From NPR:

A new lawsuit filed against one of the nation's largest for-profit prison operators, GEO Group Inc., alleges the company improperly used toxic chemicals to clean its detention centers, causing inmates to get sick.

The Social Justice Legal Foundation is representing seven currently and formerly incarcerated individuals of the immigration detention facility in Adelanto, Calif. Attorneys for the company claim that while Adelanto had used the chemical, HDQ Neutral, for at least 10 years, staff at the facility increased the spraying of the product at the height of the COVID-19 pandemic in the U.S.

The attorneys for SJLF allege that due to the detainees' months-long, near-constant exposure to this chemical from February 2020 to April 2021, they suffered symptoms like persistent cough, throat and nasal irritation, skin irritation, rashes and headaches.

Plaintiffs say they found blood in their mouths and saliva, suffered from debilitating headaches, felt dizzy and lightheaded, and now deal with long-term chronic health issues as a result of their exposure to the chemical. Read more...

bh