Monday, November 12, 2018

President Trump should withdraw his asylum proclamation

Caravan_11122018getty

© Getty Images

Nolan Rappport on The Hill calls on President Trump to withdraw the asylum proclamation.

KJ

November 12, 2018 in Current Affairs | Permalink | Comments (0)

From the Bookshelves: The Golden State by Lydia Kiesling

Goldern state
 

The Golden State by Lydia Kiesling (Sept. 2018)

In Lydia Kiesling’s razor-sharp debut novel, The Golden State, we accompany Daphne, a young mother on the edge of a breakdown, as she flees her sensible but strained life in San Francisco for the high desert of Altavista with her toddler, Honey. Bucking under the weight of being a single parent―her Turkish husband is unable to return to the United States because of a “processing error”―Daphne takes refuge in a mobile home left to her by her grandparents in hopes that the quiet will bring clarity.

But clarity proves elusive. Over the next ten days Daphne is anxious, she behaves a little erratically, she drinks too much. She wanders the town looking for anyone and anything to punctuate the long hours alone with the baby. Among others, she meets Cindy, a neighbor who is active in a secessionist movement, and befriends the elderly Alice, who has traveled to Altavista as she approaches the end of her life. When her relationships with these women culminate in a dangerous standoff, Daphne must reconcile her inner narrative with the reality of a deeply divided world.

Keenly observed, bristling with humor, and set against the beauty of a little-known part of California, The Golden State is about class and cultural breakdowns, and desperate attempts to bridge old and new worlds. But more than anything, it is about motherhood: its voracious worry, frequent tedium, and enthralling, wondrous love.

 

For a review of The Golden State, click here.

 

KJ

November 12, 2018 in Books, Current Affairs | Permalink | Comments (0)

There is No "Invasion" at the Border: The U.S. Government’s 2018 Border Data Clearly Shows Why the Trump Administration is on the Wrong Track

 

In seeking to limit access to asylum for Central Americans, President Trump has claimed that the United States is being invaded and that the nation's security and sovereignty is at risk.  A report by Adam Isacson for WOLA looks at the available data to show that the U.S. government's approach is based on faulty premises:

Chart

  1. There is no migrant crisis. In fact, the flow is near its lowest point in half a century. See the table above.
  2. The profile of a typical migrant has changed dramatically over the past five years. Two in five are now children and family members. That has never happened before.
  3. The number of people apprehended by Border Patrol has dramatically decreased over the years, because less people are attempting to cross.
  4. Tough talk, threats, and “zero tolerance” won’t dissuade kids and families from fleeing.
  5. Access to asylum is being throttled at the official border crossings.
  6. Mexico apprehends nearly as many Central American migrants as the United States does. Sometimes, Mexico apprehends more.
  7. It is extremely, vanishingly rare to find suspected gang members mixed in with families and unaccompanied children.
  8. It is extremely rare to find migrants at the border from countries whose citizens the president wishes to bar from entering the United States “until we can figure out what is going on.”
  9. Look for solutions in our asylum process and in our ports of entry. Both are in urgent need of help.

 

KJ

November 12, 2018 in Current Affairs | Permalink | Comments (0)

Sunday, November 11, 2018

Happy Veterans Day

Veterans day

Click here for national Veterans Day events.

Don't forget about our immigrant veterans.  Here are some "Citizenship Resources for Veterans Day," including a podcast.

KJ

November 11, 2018 in Current Affairs | Permalink | Comments (0)

High Profile Immigration Hardliners Who Lost at the Polls

CNN reports on immigration hardliners who suffered defeats in Tuesday's midterm elections.

 

Kobach

 

Republican Kris Kobach -- who became a national celebrity in some circles for his attempts to assist cities and states pass laws designed to facilitate immigration enforcement and kick out undocumented immigrants -- lost his bid for governor of Kansas. The Southern Poverty Law Center referred to Kobach as "a leading light of the nativist movement."  Kobach was the principal drafter of Arizona's immigration milestone SB 1070, which the Supreme Court struck down as unconstitutional.

 

Barletta

Republican Lou Barletta -- who also drew national notoriety and touts his support for an anti-immigrant agenda as the mayor of Hazleton, Pennsylvania, and enlisted Kobach's help to defend it -- lost his bid for a US Senate seat.

As Shareblue reported, "Barletta’s loathsome views and statements about immigrants have catapulted him onto a list of America’s 11 most anti-immigrant Republican nominees, compiled by Mother Jones."

 

Brat

Republican Dave Brat -- who has championed efforts to limit immigration and won in 2014 after making it a focal point of his campaign -- lost his re-election bid for Congress in Virginia.  Congressman Brat's website states the following about immigration:

"When addressing the issue of immigration, we must start by securing our border.  An open border is both a national security threat and an economic threat that our country cannot ignore. I reject any proposal that grants amnesty and undermines the fundamental rule of law. Adding millions of workers to the labor market will force wages to fall and jobs to be lost. I supported legislation that will secure our border, enforce our current laws, and restore an orderly and fair process to allow law-abiding individuals to work towards becoming citizens of this great nation. I also introduced legislation to address asylum reform to ensure families stay together at the border."

KJ

November 11, 2018 in Current Affairs | Permalink | Comments (0)

Catalina Cruz becomes first former 'Dreamer' elected to New York state Assembly

Cruz

Courtesy Catalina Cruz Campaign

 

The 2016 elections saw pathbreaking victories for immigrants to this country.  NBC reports from New York that Democratic candidate Catalina Cruz is now the first "former Dreamer" ever elected to the New York state Assembly and the third in office nationwide. Cruz won in a race against incumbent Ari Espinal and Reform Party candidate Bobby Kalotee for New York's 39th Assembly District, which includes Jackson Heights, Corona and Elmhurst in Queens, a borough of New York City and one of the country's most diverse areas.

Cruz immigrated from Colombia with her family and for ten years she lived undocumented in Queens, New York. She eventually gained citizenship after marrying her high school sweetheart.

Cruz's bio on her campaign website reads as follows:

"Catalina Cruz is a DREAMer. She was born in Colombia, came to Queens at the age of nine, and lived here for ten years without documentation. Although her mother had an advanced degree in health care, she had to work menial jobs to make ends meet. As a single mother with four kids, she cleaned offices at night, sold tamales and empanadas at the soccer fields on the weekend, and worked long hours as a nanny during the week. Inspired by her mother’s perseverance, Catalina has committed her career to fight for our community – to ensure our workers, neighbors, and families can not only survive, but thrive.

Catalina Cruz is an experienced attorney and a leader for tenant protections, immigration reform, and workers rights. She most recently served as the Chief of Staff to the New York City Council Finance Chair. Catalina has worked to help pass key legislation protecting workers, women, and small business owners. She has previously served as the Director of the Governor’s Exploited Workers Task Force, helping New York become a national leader in the fight against worker exploitation. This first-of-its-kind task force conducted outreach and enforcement within key low wage industries statewide, including car washes, restaurants, and nail salons, where workers are often victims of wage theft and subject to unsafe work conditions, but do not come forward for fear of retaliation.

Catalina started her career as a housing attorney fighting to help keep low income tenants and seniors in their homes. She currently serves as the president of the Latino Lawyers Association of Queens County. For the past 5 years, she has coordinated the Association’s Street Law in Spanish program which mentors students from St. John’s and CUNY law schools and brings “Know Your Rights” presentations to underserved communities. Catalina holds BA from the John Jay College of Criminal Justice and a JD from the City University of New York School of Law. Catalina lives in Jackson Heights with her husband."

KJ

November 11, 2018 in Current Affairs | Permalink | Comments (0)

Friday, November 9, 2018

Breaking News: Presidential Proclamation Addressing Mass Migration Through the Southern Border of the United States

Trump

Following up on the announcement yesterday of a new asylum regulation, President Trump issued this proclamation today:

The United States expects the arrival at the border between the United States and Mexico (southern border) of a substantial number of aliens primarily from Central America who appear to have no lawful basis for admission into our country.  They are traveling in large, organized groups through Mexico and reportedly intend to enter the United States unlawfully or without proper documentation and to seek asylum, despite the fact that, based on past experience, a significant majority will not be eligible for or be granted that benefit.  Many entered Mexico unlawfully — some with violence — and have rejected opportunities to apply for asylum and benefits in Mexico.  The arrival of large numbers of aliens will contribute to the overloading of our immigration and asylum system and to the release of thousands of aliens into the interior of the United States.  The continuing and threatened mass migration of aliens with no basis for admission into the United States through our southern border has precipitated a crisis and undermines the integrity of our borders.  I therefore must take immediate action to protect the national interest, and to maintain the effectiveness of the asylum system for legitimate asylum seekers who demonstrate that they have fled persecution and warrant the many special benefits associated with asylum.

In recent weeks, an average of approximately 2,000 inadmissible aliens have entered each day at our southern border.  In Fiscal Year 2018 overall, 124,511 aliens were found inadmissible at ports of entry on the southern border, while 396,579 aliens were apprehended entering the United States unlawfully between such ports of entry.  The great number of aliens who cross unlawfully into the United States through the southern border consumes tremendous resources as the Government seeks to surveil, apprehend, screen, process, and detain them.

Aliens who enter the United States unlawfully or without proper documentation and are subject to expedited removal may avoid being promptly removed by demonstrating, during an initial screening process, a credible fear of persecution or torture.  Approximately 2 decades ago, most aliens deemed inadmissible at a port of entry or apprehended after unlawfully entering the United States through the southern border were single adults who were promptly returned to Mexico, and very few asserted a fear of return.  Since then, however, there has been a massive increase in fear-of-persecution or torture claims by aliens who enter the United States through the southern border.  The vast majority of such aliens are found to satisfy the credible-fear threshold, although only a fraction of the claimants whose claims are adjudicated ultimately qualify for asylum or other protection.  Aliens found to have a credible fear are often released into the interior of the United States, as a result of a lack of detention space and a variety of other legal and practical difficulties, pending adjudication of their claims in a full removal proceeding in immigration court.  The immigration adjudication process often takes years to complete because of the growing volume of claims and because of the need to expedite proceedings for detained aliens.  During that time, many released aliens fail to appear for hearings, do not comply with subsequent orders of removal, or are difficult to locate and remove.

Members of family units pose particular challenges.  The Federal Government lacks sufficient facilities to house families together.  Virtually all members of family units who enter the United States through the southern border, unlawfully or without proper documentation, and that are found to have a credible fear of persecution, are thus released into the United States.  Against this backdrop of near-assurance of release, the number of such aliens traveling as family units who enter through the southern border and claim a credible fear of persecution has greatly increased.  And large numbers of family units decide to make the dangerous and unlawful border crossing with their children.

The United States has a long and proud history of offering protection to aliens who are fleeing persecution and torture and who qualify under the standards articulated in our immigration laws, including through our asylum system and the Refugee Admissions Program.  But our system is being overwhelmed by migration through our southern border.  Crossing the border to avoid detection and then, if apprehended, claiming a fear of persecution is in too many instances an avenue to near-automatic release into the interior of the United States.  Once released, such aliens are very difficult to remove.  An additional influx of large groups of aliens arriving at once through the southern border would add tremendous strain to an already taxed system, especially if they avoid orderly processing by unlawfully crossing the southern border.

The entry of large numbers of aliens into the United States unlawfully between ports of entry on the southern border is contrary to the national interest, and our law has long recognized that aliens who seek to lawfully enter the United States must do so at ports of entry.  Unlawful entry puts lives of both law enforcement and aliens at risk.  By contrast, entry at ports of entry at the southern border allows for orderly processing, which enables the efficient deployment of law enforcement resources across our vast southern border.

Failing to take immediate action to stem the mass migration the United States is currently experiencing and anticipating would only encourage additional mass unlawful migration and further overwhelming of the system.

Other presidents have taken strong action to prevent mass migration.  In Proclamation 4865 of September 29, 1981 (High Seas Interdiction of Illegal Aliens), in response to an influx of Haitian nationals traveling to the United States by sea, President Reagan suspended the entry of undocumented aliens from the high seas and ordered the Coast Guard to intercept such aliens before they reached United States shores and to return them to their point of origin.  In Executive Order 12807 of May 24, 1992 (Interdiction of Illegal Aliens), in response to a dramatic increase in the unlawful mass migration of Haitian nationals to the United States, President Bush ordered additional measures to interdict such Haitian nationals and return them to their home country.  The Supreme Court upheld the legality of those measures in Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993).

I am similarly acting to suspend, for a limited period, the entry of certain aliens in order to address the problem of large numbers of aliens traveling through Mexico to enter our country unlawfully or without proper documentation.  I am tailoring the suspension to channel these aliens to ports of entry, so that, if they enter the United States, they do so in an orderly and controlled manner instead of unlawfully.  Under this suspension, aliens entering through the southern border, even those without proper documentation, may, consistent with this proclamation, avail themselves of our asylum system, provided that they properly present themselves for inspection at a port of entry.  In anticipation of a large group of aliens arriving in the coming weeks, I am directing the Secretary of Homeland Security to commit additional resources to support our ports of entry at the southern border to assist in processing those aliens — and all others arriving at our ports of entry — as efficiently as possible.

But aliens who enter the United States unlawfully through the southern border in contravention of this proclamation will be ineligible to be granted asylum under the regulation promulgated by the Attorney General and the Secretary of Homeland Security that became effective earlier today.  Those aliens may, however, still seek other forms of protection from persecution or torture.  In addition, this limited suspension will facilitate ongoing negotiations with Mexico and other countries regarding appropriate cooperative arrangements to prevent unlawful mass migration to the United States through the southern border.  Thus, this proclamation is also necessary to manage and conduct the foreign affairs of the United States effectively.

NOW, THEREFORE, I, DONALD J. TRUMP, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 212(f) and 215(a) of the Immigration and Nationality Act (INA) (8 U.S.C. 1182(f) and 1185(a), respectively) hereby find that, absent the measures set forth in this proclamation, the entry into the United States of persons described in section 1 of this proclamation would be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions.  I therefore hereby proclaim the following:

Section 1Suspension and Limitation on Entry.  The entry of any alien into the United States across the international boundary between the United States and Mexico is hereby suspended and limited, subject to section 2 of this proclamation.  That suspension and limitation shall expire 90 days after the date of this proclamation or the date on which an agreement permits the United States to remove aliens to Mexico in compliance with the terms of section 208(a)(2)(A) of the INA (8 U.S.C. 1158(a)(2)(A)), whichever is earlier.

Sec. 2.  Scope and Implementation of Suspension and Limitation on Entry.  (a)  The suspension and limitation on entry pursuant to section 1 of this proclamation shall apply only to aliens who enter the United States after the date of this proclamation.

(b)  The suspension and limitation on entry pursuant to section 1 of this proclamation shall not apply to any alien who enters the United States at a port of entry and properly presents for inspection, or to any lawful permanent resident of the United States.

(c)  Nothing in this proclamation shall limit an alien entering the United States from being considered for withholding of removal under section 241(b)(3) of the INA (8 U.S.C. 1231(b)(3)) or protection pursuant to the regulations promulgated under the authority of the implementing legislation regarding the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or limit the statutory processes afforded to unaccompanied alien children upon entering the United States under section 279 of title 6, United States Code, and section 1232 of title 8, United States Code.

(d)  No later than 90 days after the date of this proclamation, the Secretary of State, the Attorney General, and the Secretary of Homeland Security shall jointly submit to the President, through the Assistant to the President for National Security Affairs, a recommendation on whether an extension or renewal of the suspension or limitation on entry in section 1 of this proclamation is in the interests of the United States.

Sec. 3Interdiction.  The Secretary of State and the Secretary of Homeland Security shall consult with the Government of Mexico regarding appropriate steps — consistent with applicable law and the foreign policy, national security, and public-safety interests of the United States — to address the approach of large groups of aliens traveling through Mexico with the intent of entering the United States unlawfully, including efforts to deter, dissuade, and return such aliens before they physically enter United States territory through the southern border.

Sec. 4Severability.  It is the policy of the United States to enforce this proclamation to the maximum extent possible to advance the interests of the United States.  Accordingly:

(a)  if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this proclamation and the application of its other provisions to any other persons or circumstances shall not be affected thereby; and

(b)  if any provision of this proclamation, or the application of any provision to any person or circumstance, is held to be invalid because of the failure to follow certain procedures, the relevant executive branch officials shall implement those procedural requirements to conform with existing law and with any applicable court orders.

Sec. 5.  General Provisions.  (a)  Nothing in this proclamation shall be construed to impair or otherwise affect:

(i)   the authority granted by law to an executive department or agency, or the head thereof; or

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This proclamation shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This proclamation is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

IN WITNESS WHEREOF, I have hereunto set my hand this
ninth day of November, in the year of our Lord two thousand eighteen, and of the Independence of the United States of America the two hundred and forty-third.

DONALD J. TRUMP

 

Law prof Peter Margulies responds to the Executive Order on Lawfare.

Penn State Law Center for Immigrants' Rights Clinic has released this FAQ on the Executive Order.

Update (noon PST):  It did not take long for a lawsuit challenging the Trump executive order as violating the Immigration and Nationality Act and the Administrative Procedure Act.  The press release:

The Southern Poverty Law Center, American Civil Liberties Union and Center for Constitutional Rights have filed a federal lawsuit challenging the asylum ban proclamation signed this morning by President Trump.

The lawsuit currently charges the administration with violating the Immigration and Nationality Act as well as the Administrative Procedure Act. “The asylum ban, coupled with CBP’s widespread practice and policy of turning back individuals attempting to seek asylum at ports of entry, would effectively deny protection to thousands of vulnerable individuals. The government’s blatant disregard for the rights of asylum seekers cannot stand,” said Melissa Crow, Southern Poverty Law Center senior supervising attorney.

The case, East Bay Sanctuary Covenant v. Trump, was filed in federal court in San Francisco. It was brought on behalf of East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and the Central American Resource Center in Los Angeles.  

“President Trump’s new asylum ban is illegal. Neither the president nor his cabinet secretaries can override the clear commands of U.S. law, but that’s exactly what they’re trying to do. This action undermines the rule of law and is a great moral failure because it tries to take away protections from individuals facing persecution — it’s the opposite of what America should stand for,” said Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project.

Baher Azmy, legal director of the Center for Constitutional Rights, added, “Ever since the horrors of World War II, the world’s nations have committed to giving asylum seekers the opportunity to seek safe haven. The Trump administration cannot defy this most elementary humanitarian principle, in violation of U.S. and international law, with a flip of a presidential pen.”

This past October, the SPLC and its partners, the Center for Constitutional Rights and the American Immigration Council, filed an amended complaint in the pending lawsuit, Al Otro Lado v. Nielsen, No. 3:17-cv-02366 (S.D. Cal.), which challenges the Trump administration's unlawful turnbacks of asylum seekers who present themselves at ports of entry along the U.S.-Mexico border. The filing directly links high-level Trump administration officials to an official "Turnback Policy," ordering U.S. Customs and Border Protection to restrict the number of asylum seekers who can access the asylum process.

The complaint is here.

KJ

 

November 9, 2018 in Current Affairs | Permalink | Comments (1)

Sessions: The Trump Administration’s Once-Indispensable Man on Immigration

Sessions

Ousted after less than two years as Attorney General, Jeff Sessions proved himself one of the most effective Cabinet members in advancing the Trump administration’s agenda, pushing through wide-reaching changes to the U.S. immigration system that will endure long after this presidency.

In a new article for the Migration Policy Institute’s online journal, the Migration Information Source, MPI Policy Analyst Sarah Pierce examines the Sessions record on immigration, including a major asylum reform unveiled yesterday that will significantly narrow protections for asylum seekers at the U.S.-Mexico border.

Despite advancing zero-tolerance policies that sparked the separation of thousands of families, battling “sanctuary” jurisdictions, and spearheading his department’s legal defense of the travel ban and other actions, Sessions may have a more enduring legacy, Pierce writes.

In the article she explores how Sessions actively took advantage of a power less used by recent predecessors to reach into the immigration courts (which are an agency of the Justice Department) and refer cases to himself so he could set sweeping new administration policy, including sharply limiting the use of gang and domestic violence as grounds for asylum.

“Sessions’ enduring legacy will be transforming a quasi-judicial system designed to provide due process to foreign nationals facing deportation into an outright and powerful political tool,” Pierce writes.

KJ

November 9, 2018 | Permalink | Comments (0)

Thursday, November 8, 2018

New Asylum Regulation! Secretary Kirstjen M. Nielsen, Acting Attorney General Matthew G. Whitaker Statement on DHS-DOJ Asylum Regulation

Justice

Dhs'

Today, Secretary of Homeland Security Kirstjen M. Nielsen and Acting Attorney General Matthew G. Whitaker released the following statement on the joint Department of Homeland Security and Department of Justice asylum regulation: “Consistent with our immigration laws, the President has the broad authority to suspend or restrict the entry of aliens into the United States if he determines it to be in the national interest to do so. Today's rule applies this important principle to aliens who violate such a suspension or restriction regarding the southern border imposed by the President by invoking an express authority provided by Congress to restrict eligibility for asylum.  Our asylum system is overwhelmed with too many meritless asylum claims from aliens who place a tremendous burden on our resources, preventing us from being able to expeditiously grant asylum to those who truly deserve it.  Today, we are using the authority granted to us by Congress to bar aliens who violate a Presidential suspension of entry or other restriction from asylum eligibility.”

The interim final rule is available here.

STATEMENT: Once Again, the Trump Administration Demonstrates That Its Fearmongering and Demagoguery Are Not Only for Political Purposes—But Also to Drive a Cruel, Nativist Agenda, Says Tom Jawetz

Washington, D.C. — Today, the Trump administration issued an illegal interim final rule designed to prevent large classes of people from seeking asylum in the United States. Tomorrow, the administration is expected to issue a proclamation applying this new asylum ban to any person crossing the southwest border between the ports of entry. Tom Jawetz, vice president of Immigration Policy at the Center for American Progress, issued the following statement:

Denying people the right to seek asylum is cruel, unjust, and also unlawful. When Congress in 1996 enacted sweeping immigration enforcement legislation—putting in place the expedited removal system that today allows Border Patrol agents to quickly deport people they apprehend without any court process—it specifically created the credible fear process to preserve the right of people to seek asylum when they are apprehended between the ports of entry. Congress did that knowing that if it circumscribed the right to seek protection, then it would run afoul of our obligations under U.S. and international law to not return people to face persecution abroad. The interim final rule issued today acknowledges this history even as it attempts to undo it entirely.

In addition to violating the plain text of the Immigration and Nationality Act, which guarantees people the right to seek asylum “whether or not at a designated port of arrival,” the administration decision to bypass the required notice and comment process is wholly without “good cause.” While the administration clearly felt an urgent need to politicize the plight of a group of people—mostly mothers and children—traveling slowly through Mexico in advance of Tuesday’s midterm elections, that hardly provides the urgency needed to justify putting this cruel policy in place without first hearing from the public.

With the Trump administration, it’s useful to remember that as much as they embrace fearmongering and anti-immigrant bias for their perceived political benefits, they are also committed to furthering an anti-immigrant and anti-refugee agenda every single day.

KJ

November 8, 2018 in Current Affairs | Permalink | Comments (2)

Ninth Circuit Affirms Injunction Barring the Rescission of DACA

Ninth

The U.S. Court of Appeals for the Ninth Circuit has upheld the injunction barring the rescission of DACA.  The opinion was written by Judge Kim McLane Wardlaw; Judge Jacqueline H. Nguyen joined the opinion.  Judge John B. Owens filed an opinion concurring in part. 

Here is the court's summary of the opinion:

 "In an action challenging the Department of Homeland Security’s rescission of Deferred Action for Childhood Arrivals (DACA), the panel affirmed the district court’s grant of preliminary injunctive relief, and affirmed in part the district court’s partial grant and partial denial of the government’s motion to dismiss for failure to state a claim.

Begun in 2012, DACA allows those noncitizens who unwittingly entered the United States as children, who have clean criminal records, and who meet various educational or military service requirements to apply for two-year renewable periods of deferred action—a revocable decision by the government not to deport an otherwise removable person from the country. In 2014, Secretary of Homeland Security Jeh Johnson issued a memorandum that announced the related Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), which allowed deferred action for certain noncitizen parents of American citizens and lawful permanent residents, and expanded DACA. All of the policies outlined in the 2014 Johnson memorandum were enjoined nationwide in a district court order upheld by the Fifth Circuit and affirmed by an equally divided Supreme Court. After a new presidential administration took office, Acting Secretary of Homeland Security Elaine Duke issued a memorandum in September 2017 rescinding DACA.

Suits were filed in the Northern District of California by the Regents of the University of California, a group of states led by California, the City of San Jose, the County of Santa Clara and Service Employees International Union Local 521, and a group of individual DACA recipients led by Dulce Garcia. The cases were consolidated, and the district court ordered the government to complete the administrative record. Seeking to avoid providing additional documents, the government filed a petition for mandamus, which this court denied. The government petitioned the Supreme Court for the same mandamus relief; the Court did not reach the merits of the administrative record dispute, but instructed the district court to rule on the government’s threshold arguments challenging reviewability of its rescission decision. The district court entered a preliminary injunction requiring DHS to adjudicate renewal applications for existing DACA recipients, and the court partially granted and partially denied the government’s motion to dismiss.

The panel held that neither the Administrative Procedure Act nor the Immigration and Nationality Act (INA) barred judicial review of the decision to rescind DACA. With respect to the APA, the panel reviewed the cases of Heckler v. Chaney, 470 U.S. 821 (1985), Montana Air Chapter No. 29 v. Federal Labor Relations Authority, 898 F.2d 753 (9th Cir. 1990), and City of Arlington v. FCC, 569 U.S. 290 (2013). The panel concluded that, where the agency’s decision is based not on an exercise of discretion, but instead on a belief that any alternative choice was foreclosed by law because the agency lacked authority, the APA’s "committed to agency discretion" bar to reviewability, 5 U.S.C. § 701(a)(2), does not apply. The panel also concluded that the Acting Secretary based the rescission of DACA solely on a belief that DACA was beyond the authority of DHS. Accordingly, the panel determined that the rescission was within the realm of agency actions reviewable under the APA.

With respect to the INA, the panel rejected the government’s contention that review was barred by 8 U.S.C. § 1252(g), which precludes judicial review of "any cause or claim by or on behalf of any alien arising from the decision or action of the [Secretary of Homeland Security] to commence proceedings, adjudicate cases, or execute removal orders." The panel explained that, under Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999), the rescission does not fall within the three discrete actions mentioned in 8 U.S.C. § 1252(g).

Having concluded that neither the APA nor the INA precludes judicial review, the panel turned to the merits of the preliminary injunction and considered whether the agency was correct in concluding that DACA was unlawful. The Attorney General’s primary bases for concluding that DACA was illegal were that the program was "effectuated . . . without proper statutory authority" and that it amounted to "an unconstitutional exercise of authority." More specifically, the Attorney General asserted that "the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA" in the Fifth Circuit litigation. The panel considered the DAPA litigation, comparing aspects of DAPA and DACA, and concluded that that DACA was a permissible exercise of executive discretion, notwithstanding the Fifth Circuit’s conclusion that the related DAPA program exceeded DHS’s statutory authority. Thus, the panel concluded that, because the Acting Secretary was incorrect in her belief that DACA was illegal and had to be rescinded, plaintiffs are likely to succeed in demonstrating that the rescission must be set aside under the APA as arbitrary and capricious.

The panel next concluded that the district court did not abuse its discretion in issuing a nationwide injunction, noting that such relief is commonplace in APA cases, promotes uniformity in immigration enforcement, and is necessary to provide the plaintiffs here with complete redress.

Finally, addressing the district court’s order granting in part and denying in part the government’s motion to dismiss, the court concluded that the district court properly dismissed plaintiffs’ APA notice-and-comment claim, and their claim that the DACA rescission violates their substantive due process rights. The panel further concluded that the district court also properly denied the government’s motion to dismiss plaintiffs’ APA arbitrary-and-capricious claim, their claim that the new information-sharing policy violates their due process rights, and their claim that the DACA rescission violates their right to equal protection.

Concurring in the judgment, Judge Owens wrote that, as he believed the Plaintiffs’ Equal Protection claim has some likelihood of success on the merits, he concurred in the judgment affirming the preliminary injunction. However, Judge Owens disagreed with the majority’s conclusion that otherwise unreviewable agency action is reviewable when the agency justifies its action by reference to its understanding of its jurisdiction. Therefore, Judge Owens would hold that § 701(a)(2) precludes the court from subjecting DACA’s rescission to arbitrary-and-capricious review. Judge Owens would also affirm the preliminary injunction and remand for consideration whether Plaintiffs have demonstrated a likelihood of success on the merits of their Equal Protection claim.

As for the government’s appeal from the motions to dismiss, Judge Owens dissented from the majority’s holding to affirm the district court’s denial of the motion to dismiss Plaintiffs’ APA arbitrary-and-capricious claim. However, he concurred in the majority’s holding to affirm the district court’s dismissal of Plaintiffs’ APA notice-and-comment claim. He also concurred in the judgment to affirm the district court’s ruling on Plaintiffs’ Due Process claims. He also agreed with the majority’s decision to affirm the district court’s denial of the motion to dismiss the Equal Protection claim and hold that the Equal Protection claim offers an alternative ground to affirm the preliminary injunction."

KJ

November 8, 2018 in Current Affairs | Permalink | Comments (0)

Birthright Citizenship: A Look at Other Nations

Trump

In light of President Trump's threat to attempt to do away for birthright citizenship by executive order, Nolan Rappaport on The Hill looks at citizenship rules in other nations:

"President Donald Trump said recently that, “We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits.” He’s wrong. According to the CIA World Factbook, 39 countries have birthright citizenship. But the rest of the 195 countries (80 per cent) base citizenship at birth on the nationality or resident status of the child’s parents.

Perhaps Trump should have said instead that the United States and Canada are the only two developed countries that have it, and Canada is in the process of deciding whether to stop using it."

KJ

November 8, 2018 in Current Affairs | Permalink | Comments (2)

Election 2018: Somali Refugee Elected to Congress, Afghan Refugee Elected to New Hampshire House of Representatives

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Born in Somalia, Ilhan Omar fled war with her family and grew up partly in Dadaab, Kenya, one of the world’s largest refugee camps. Photo: Reuters/Eric Miller

 

Abdi Latif Dahir on Quartz reports on an amazing Election 2018 story.  

Somali, Muslim, refugee, woman: Ilhan Omar made history in all those categories last night as voters backed her bid to the US Congress. The 36-year-old Democrat candidate was resoundingly elected with over 78% of the vote in Minnesota’s 5th congressional district, joining the surge of fresh new candidates who helped the Democrats take back the House. Her Republican opponent Jennifer Zielinski got only 22% of the vote. Her election was among many firsts in the high-stakes midterm polls, including the victory of an openly gay governor in Colorado, and the first Native American women elected to Congress from Kansas and New Mexico.

Born in Somalia, Ilhan fled war with her family and grew up partly in Dadaab, one of the world’s largest refugee camps located in Kenya. She moved to the US with her family in 1995, aged 14. In 2016, she became the first Somali-American woman elected to state legislature in the US. The mother of three then decided to run for Congress this year after Keith Ellison, an African-American Muslim and deputy chair of the Democratic National Committee, vacated the seat to run for attorney general in Minnesota.

 

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In this Tuesday, Oct. 9, 2018 photo, Safiya Wazir holds her daughter, Aaliyah, behind one of her campaign signs in Concord, N.H. Holly Ramer / AP

And in New Hampshire, Democrat Safiya Wazir is the first refugee ever elected to New Hampshire's House of Representatives. Her family fled Afghanistan and the Taliban 21 years ago, and spent 10 years in a refugee camp before coming to the United States.

KJ

November 8, 2018 in Current Affairs | Permalink | Comments (0)

Symposium Available On-Line: Immigration Law & Resistance: Ensuring a Nation of Immigrants

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The UC Davis Law Review has posted the articles to its Immigration Law & Resistance Symposium, which was held in October 2018.

Vol. 52, No. 1, November 2018

Symposium — Immigration Law & Resistance: Ensuring a Nation of Immigrants

Citizenship Matters: Conceptualizing Belonging in an Era of Fragile Inclusions 

Precious Cargo 

The Economics of Immigration Reform 

Chevron and Citizenship 

Inclusive Immigrant Justice: Racial Animus and the Origins of Crime-Based Deportation 

Deconstructing Crimmigration 

Do Apprehensions of Undocumented Immigrants Reduce Crime and Create Jobs? Evidence from U.S. Districts, 2000-2015 

Beyond DACA — Defying Employer Sanctions Through Civil Disobedience 

Lessons About the Future of Immigration Law from the Rise and Fall of DACA 

What We Talk About When We Talk About Sanctuary Cities 

Big Immigration Law 

Arguing About Sanctuary 

States of Desire: How Immigration Law Allows States to Attract Desired Immigrants 

Reconsidering Money Bail in Immigration Detention 

The New Sanctuary and Anti-Sanctuary Movements 

November 8, 2018 in Current Affairs | Permalink | Comments (0)

Latino Peoples in the New America: Racialization and Resistance by José A. Cobas, Joe R. Feagin, Daniel J. Delgado, Maria Chávez, editors

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Latino Peoples in the New America: Racialization and Resistance by José A. Cobas, Joe R. Feagin, Daniel J. Delgado, Maria Chávez, editors, Routledge, released in December 2018

"Latinos" are the largest group among Americans of color. At 59 million, they constitute nearly a fifth of the US population. Their number has alarmed many in government, other mainstream institutions, and the nativist right who fear the white-majority US they have known is disappearing. During the 2016 US election and after, Donald Trump has played on these fears, embracing xenophobic messages vilifying many Latin American immigrants as rapists, drug smugglers, or "gang bangers." Many share such nativist desires to build enhanced border walls and create immigration restrictions to keep Latinos of various backgrounds out. Many whites’ racist framing has also cast native-born Latinos, their language, and culture in an unfavorable light.

Trump and his followers’ attacks provide a peek at the complex phenomenon of the racialization of US Latinos. This volume explores an array of racialization’s manifestations, including white mob violence, profiling by law enforcement, political disenfranchisement, whitewashed reinterpretations of Latino history and culture, and depictions of "good Latinos" as racially subservient. But subservience has never marked the Latino community, and this book includes pointed discussions of Latino resistance to racism. Additionally, the book’s scope goes beyond the United States, revealing how Latinos are racialized in yet other societies.

KJ

November 8, 2018 in Books, Current Affairs | Permalink | Comments (0)

Wednesday, November 7, 2018

TRAC : Immigration Court Backlog Hits One Million Cases!

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Read the latest from TRAC on the immigration court backlog.  The backlog is now at one million cases, up 49 % since the beginning of fiscal year 2017.

https://trac.syr.edu/immigration/reports/536/

KJ

 

November 7, 2018 in Current Affairs | Permalink | Comments (0)

From the Bookshelves: Lucy E. Salyer, Under the Starry Flag: How a Band of Irish Americans Joined the Fenian Revolt and Sparked a Crisis over Citizenship

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Under the Starry Flag:  How a Band of Irish Americans Joined the Fenian Revolt and Sparked a Crisis over Citizenship by Lucy E. Salyer

Abstract 

The riveting story of forty Irish Americans who set off to fight for Irish independence, only to be arrested by Queen Victoria’s authorities and accused of treason: a tale of idealism and justice with profound implications for future conceptions of citizenship and immigration.

In 1867 forty Irish American freedom fighters, outfitted with guns and ammunition, sailed to Ireland to join the effort to end British rule. Yet they never got a chance to fight. British authorities arrested them for treason as soon as they landed, sparking an international conflict that dragged the United States and Britain to the brink of war. Under the Starry Flag recounts this gripping legal saga, a prelude to today’s immigration battles.

The Fenians, as the freedom fighters were called, claimed American citizenship. British authorities disagreed, insisting that naturalized Irish Americans remained British subjects. Following in the wake of the Civil War, the Fenian crisis dramatized anew the idea of citizenship as an inalienable right, as natural as freedom of speech and religion. The captivating trial of these men illustrated the stakes of extending those rights to arrivals from far-flung lands. The case of the Fenians, Lucy E. Salyer shows, led to landmark treaties and laws acknowledging the right of exit. The U.S. Congress passed the Expatriation Act of 1868, which guarantees the right to renounce one’s citizenship, in the same month it granted citizenship to former American slaves.

The small ruckus created by these impassioned Irish Americans provoked a human rights revolution that is not, even now, fully realized. Placing Reconstruction-era debates over citizenship within a global context, Under the Starry Flag raises important questions about citizenship and immigration.

KJ

November 7, 2018 in Books, Current Affairs | Permalink | Comments (0)

Sessions is out!

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Jeff Sessions photo by Gage Skidmore

Jeff Sessions is no longer the Attorney General of the United States, CNN reports. Sessions was asked to resign.

Immprofs may be tempted to rejoice. And perhaps you'll wonder about what will happen with all those BIA cases that Sessions has referred to himself.

I say, hold off on rejoicing. I'll make my prediction for the next AG, grim as it is: Kris Kobach.

-KitJ

November 7, 2018 in Current Affairs | Permalink | Comments (0)

Should Noncitizens Be Allowed to Vote?

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Ron Hayduk

Ron Hayduk on Jacobin  offers an argument that some Americans — wrongly - might view as unAmerican — noncitizen voting. Noncitizen voting was common across the United States until around WWII, when the Red Scare and nativism gripped the nation.   Should the U.S. expand the franchise to all residents like Sweden, Norway, the Netherlands, Denmark, Ireland, and other nations do?

KJ

November 7, 2018 in Current Affairs | Permalink | Comments (0)

Conference: Access to Justice, Due Process and the Rule of Law in the US Immigration System — Honoring Jose P. Osuna

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The Center for Migration Studies is holding a conference, “Access to Justice, Due Process, and the Rule of Law in the US Immigration System: Present Realities and a Vision for the Future,” scheduled for 9:00am-4:30pm on November 15, 2018 at the law firm of Hogan Lovells in Washington DC. Registration is free, and food will be provided. New York CLE credit pending.


This all-day event honors the legacy of Juan P. Osuna, an exemplary public servant, lawyer, scholar and friend. As Director of the Executive Office for Immigration Review (EOIR) at the US Department of Justice (DOJ), Juan oversaw the agency that houses the US immigration court system. The event will feature expert panels on a series of themes and issues of great importance to Juan, including the rule of law in the immigration system; political asylum and protection of survivors of violence; due process; immigration court reform and management; and responding to large-scale migrant and refugee flows. The panels will analyze current policies and set forth a vision for the future. The event will also include reflections by Juan’s former government colleagues on his contributions, legacy, and priority issues.

To register for this free event, click here.
 
KJ

November 7, 2018 in Current Affairs | Permalink | Comments (0)

Doris Meissner: Asylum Reform — Not National Guard — Needed at Border

 

 

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Sgt. Mark Otte/National Guard

The deployment of thousands of active-duty troops to the U.S.-Mexico border seeks to provide a shock-and-awe solution to a situation that will not be solved by bombast. The migrant caravans and arrivals more generally of Central American families and children do not represent a national security threat or crisis.


Instead, they epitomize the changed reality at the U.S.-Mexico border: Flows once primarily of young Mexican men seeking economic opportunity have been replaced by more complex, mixed humanitarian and economic flows of predominately Central Americans. Determining who has a legitimate protection claim is the challenge of current era.

In a new commentary, Migration Policy Institute Senior Fellow Doris Meissner, who oversaw the last reform of the U.S. asylum system in the 1990s, makes the case for a more effective solution than troop deployments.

Common-sense fixes to the U.S. asylum system that would allow swifter, fair decisions on asylum claims would send a signal to would-be migrants that those who do not qualify for protection will not succeed in remaining in the United States, she argues. "This is what constitutes meaningful deterrence."

“There is another path that preserves the opportunity to provide humanitarian protection while also discouraging unfounded asylum claims and the formation of caravans as a new migration pattern in our region,” Meissner writes. “This path requires immediate, near-, and longer-term actions that should begin with changes to the U.S. asylum system, which is, indeed, in crisis in the face of growing backlogs of cases that take years to complete.”
 
 
 
KJ

November 7, 2018 in Current Affairs | Permalink | Comments (0)