Monday, January 25, 2021
Border Solutions from the Inside by Raquel Aldana,Forthcoming April 2021, University of Miami Race & Social Justice Law Review
This essay provides an analysis of urgent and pragmatic solutions to the persistent forced migration challenges in Central America’s Northern Triangle that President Joe Biden could undertake in the first two years of his administration. Its focus is on measures that the United States can undertake to help these nations avert the enormous humanitarian crisis brought about by the pandemic and recent hurricanes, including starvation, a surge in violence, and a rise in extreme poverty, all of which are fueling an increase in forced migration from the region. Specifically, the essay is focused on two measures: (1) Stabilizing the flow of remittances from the U.S. to the region; and (2) increasing and strategically reorienting aid to these nations to the most vulnerable communities affected by the pandemic.
This essay was expanded from a presentation at the University of Miami symposium Defending and Promoting Civil Rights in a Time of Coronavirus organized by the University of Miami and Chair of the AALS Civil Rights Section Professor Elizabeth M. Iglesias. The piece is forthcoming in April 2021 in the University of Miami Race & Social Justice Law Review.
Sunday, January 24, 2021
On Friday, Texas sued the feds over DHS' Wednesday night memo: Review of an Interim Revision to Civil Immigration Enforcement and Removal Policies and Priorities. Texas characterizes this memo as a complete halt of deportations. You can read the complaint here, but let me summarize the key points:
At ¶5, Texas explains why it believes it has standing to sue: "When DHS fails to remove illegal aliens in compliance with federal law, Texas faces significant costs. A higher number of illegal aliens in Texas leads to budgetary harms, including higher education and healthcare costs." So that's the state's stated harm.
You might be asking how and why Texas thinks it has the right to change a federal policy. Well, it turns out that Texas has a written agreement with the U.S. And the agreement has some really interesting provisions.
As ¶18 of the Texas complaint describes this agreement as stating: "“Texas will provide information and assistance to help DHS perform its border security, legal immigration, immigration enforcement, and national security missions in exchange for DHS’s commitment to consult Texas and consider its views before taking” certain administrative actions."
And ¶19 of the complaint says that "DHS must “[c]onsult with Texas before taking any action or making any decision that could reduce immigration enforcement” or “increase the number of removable or inadmissible aliens in the United States.”"
¶20 states that the agreement requires DHS to “[p]rovide Texas with 180 days’ written notice of any proposed action.”
With all those facts, Texas goes on to set out six different causes of action, arguing that:
- the government has breached its obligation to provide notice and consult with Texas (Count 1)
- the DHS position is unlawful under 8 U.S.C. § 1231 (Count 2: Failure to Remove Illegal Aliens)
- the DHS direction is unconstitutional because it violates the obligation to "take care that the Laws be faithfully executed.” (Count 3)
- the DHS direction violates the APA as it is "arbitrary and capricious" (Count 4)
- the DHS direction violates the APA as it did not comply with notice and comment rulemaking (Count 5)
- the DHS direction is ultra vires (Count 6)
The White House has posted this summary of the conversation between the U.S. and Mexican presidents:
"President Biden spoke with Mexican President Andrés Manuel López Obrador yesterday to review bilateral cooperation on a range of bilateral and regional issues, particularly regional migration. The President outlined his plan to reduce migration by addressing its root causes, increasing resettlement capacity and lawful alternative immigration pathways, improving processing at the border to adjudicate requests for asylum, and reversing the previous administration’s draconian immigration policies. The two leaders agreed to work closely to stem the flow of irregular migration to Mexico and the United States, as well as to promote development in the Northern Triangle of Central America. They also recognized the importance of coordination to combat the COVID-19 pandemic." (bold added)
Saturday, January 23, 2021
If you're unfamiliar with the Darién Gap, you're not alone. I did not know about it until just this evening when I watched this PBS Newshour report from August: What migrants face as they journey through the deadly Darien Gap. It's a largely uninhabited area of mountains, forests, and water that straddles Colombia and Panama. Migrants from around the world (Haiti, Cameroon, Bangladesh were all featured in the report below) travel to Brazil and Ecuador and, from there, make their way north to the U.S. and Canada. This requires passage through the Darién Gap, which as the clip shows, is incredibly dangerous.
The clip is just under 11 minutes long. It would be a really interesting addition to discussion about migration to the U.S. as it shows (a) non-desert travels and (b) migration from outside the Northern Triangle countries.
Oddly enough, I found out about this story from the journalist--Nadja Drost--on twitter. She reported today that a Bangladeshi food delivery man and asylum seeker recognized her from this report. He showed her the report, saved on his phone, which he has shared with family and friends to explain the realities of his journey to America.
Earlier this week, the Biden administration suspended the Migrant Protection Protocols (MPP). The American Immigration Council has a helpful fact sheet on: "The “Migrant Protection Protocols,” which provides information about the program, who it has impacted, and analyzes the concerns and problems with the program.
The fact sheet notes as follows that
"President Biden has promised to end MPP. However, prior to inauguration, Biden and his advisors had suggested that damage done to the asylum system by the Trump administration has prevented them from immediately admitting people still waiting in Mexico under MPP, and it may take “months” to reverse Trump’s border policies. Hours after he was inaugurated, Biden officially ordered CBP to stop placing people into MPP but left the fate of those already sent back to Mexico still unclear.
As proposed below, now that CBP has stopped placing people into MPP, the administration should rapidly surge resources to ports of entry to process the likely fewer than 20,000 people with pending MPP cases who remain in Mexico. Under new guidance, CBP should be directed to issue parole quickly and safely to individuals subject to MPP who appear at the ports of entry at scheduled times, allowing them to reenter the United States. Once inside the country, nonprofit organizations can help these individuals arrange transit to their final destination while the Department of Homeland Security (“DHS”) transfers the individuals’ court cases to their final destination."
Friday, January 22, 2021
Yesterday, I noted that the text of the U.S. Citizenship Act of 2021 (the Biden-approved comprehensive immigration bill) isn't available. It still isn't. Reuters reports that it's expected to be hundreds of pages long. All the more reason to make the text publicly available sooner rather than later.
Anyhoo, in the absence of the actual text, we can read the administration's summary of the proposal. Here's one paragraph of particular interest:
Support asylum seekers and other vulnerable populations. The bill eliminates the one-year deadline for filing asylum claims and provides funding to reduce asylum application backlogs. It also increases protections for U visa, T visa, and VAWA applicants, including by raising the cap on U visas from 10,000 to 30,000. The bill also expands protections for foreign nationals assisting U.S. troops.
There's a lot to unpack there.
First: eliminating one-year deadline for filing asylum claims. You can read Lindsay Harris' article The One-Year Bar to Asylum in the Age of the Immigration Court Backlog to learn more about why this change will be important.
Second: increasing "protections for U visa, T visa, and VAWA applicants." Hm. That's a bit vague. More details will be needed.
Third: raising the cap on U visas for 10,000 to 30,000. You can read Mariela Olivares' article Battered by Law: The Political Subordination of Immigrant Women to learn more about why this change will be important (quick take: the 10,000 figure has been "insufficient to meet the need").
Fourth: expanding protections for foreign nationals assisting U.S. troops. This, too, is a bit vague. But let me send you to this John Oliver segment that I use in class to discuss our deplorable treatment of military translators. Certainly there's lots we can do to help.
Immigration Article of the Day: Language Access and Due Process in Asylum Interviews by Pooja Dadhania
The Department of Homeland Security does not provide interpreters to asylum applicants during their asylum interviews, instead requiring them to supply their own. This Article challenges this deprivation of language access as a procedural due process violation because it denies limited English proficient asylum seekers meaningful access to the statutorily created affirmative asylum process. The Department of Homeland Security’s failure to provide interpreters can silence limited English proficient asylum seekers by depriving them of the opportunity to meaningfully present their claims. Asylum seekers, especially those who are low income or speak rare languages, face significant challenges in finding suitable interpreters. Many are forced to use nonprofessional interpreters who are not qualified to interpret in complex legal settings. Inaccurate interpretation can have severe ramifications, like unwarranted denials of asylum applications, which could result in asylum applicants being re-moved to countries where they face persecution. The failure to provide interpreters at asylum interviews is one example of the weaponization of language access, designed to erect barriers to protection in the United States and subordinate certain categories of migrants. Only by challenging and changing these procedures will limited English proficient asylum seekers have equal access to the asylum system.
Earlier this month, I posted about a grew new book. Immigrant California: Understanding the Past, Present, and Future of U.S. Policy. On Thursday, January 28 from 12:30 to 2:00 PM (PT), David Scott FitzGerald and John D. Skrentny discuss their-new book. Irene Bloemraad (UC Berkeley), Tomás Jiménez (Stanford University), Manuel Pastor (USC) and Andrew Selee (the Migration Policy Institute) will be the panelists while Marcela Maxfield, SUP senior editor for Sociology, Law, and Asian Studies, will serve as the moderator.
Click on the following link for more information and to register for this event. Book discussion on Immigrant California Tickets, Thu, Jan 28, 2021 at 12:30 PM | Eventbrite
This week the Biden administration proposed a Citizenship Act of 2021 (KitJ blogged here) that would, among other changes, replace the term “illegal alien” with “noncitizen” in the Immigration and Nationality Act.
Many immigration scholars and supporters have long chafed at the INA's terminology. Empirical evidence supports their instincts that words matter: labels impact institutional and decisions and societal thinking. Julian M. Rucker, Mary C. Murphy, and Victor D. Quintanilla published an empirical paper (The immigrant labeling effect: the role of imimgrant group labels in prejudice against noncitizens, Group Processes & Intergroup Relations (2019)) investigating how prejudice, punitive behavioral intentions, and support for punitive immigration policies shift when immigrant labels included “illegal alien” vs. “noncitizen.”
The paper abstract reads:
Five experiments (N = 2,251) and a meta-analysis examine how group labels shape Americans’ levels of prejudice, behavioral intentions, and policy preferences toward immigrants living in the US without authorization. These studies extend research documenting how the perceived negativity of group labels (e.g., those describing gay people) affects people’s downstream attitudes. To this end, Study 1 examines the perceived negativity of the five most commonly used labels to describe unauthorized immigrants. Study 2 found that relatively negative (vs. neutral) labels (e.g., illegal aliens vs. noncitizens) engendered more prejudice, punitive behavioral intentions, and greater support for punitive policies. Study 3 replicates these effects and examines the role of familiarity. People who personally knew members of the group were more positive towards them overall, but were nevertheless susceptible to the labels’ influence. Studies 4 and 5 provide additional replications and explore prejudice as a mediator of behavioral intentions and policy preferences.
PennState Law Fact Sheet on President Biden's Proclamation on Ending Discriminatory Bans on Entry to the United States
PennState Law's Center for Immigrant Rights' Clinic has published a new new Fact Sheet, together with American Immigration Lawyers Association (AILA), Advocate Defend Connect (ADC), and Muslim Advocates. The Fact Sheet discusses the key provisions of President Biden's Proclamation to repeal the bans targeting immigrants from majority Arab, Muslim, and African countries, which was issued on his first day in office, January 20, 2021. The fact sheet is available here.
Tal Kopan for the San Francisco Chronicle (registration required) reports on an investigation of the of misconduct in the immigration courts, which many believe deserve increased oversight and reform. "Bad conduct, leering ‘jokes’ — immigration judges stay on bench Interviews with dozens of attorneys and government officials show that sexual harassment problems have festered for years. The Justice Department has long lacked a strong system for reporting and responding to sexual harassment and misconduct."
The story begins as follows:
"One judge made a joke about genitalia during a court proceeding and was later promoted. Another has been banned for more than seven years from the government building where he worked after management found he harassed female staff, but is still deciding cases.
A third, a supervisor based mostly in San Francisco, commented with colleagues about the attractiveness of female job candidates, an internal investigation concluded. He was demoted and transferred to a courtroom in Sacramento.
The three men, all immigration judges still employed by the Justice Department, work for a court system designed to give immigrants a fair chance to stay in the U.S. Every day, they hear some of the most harrowing stories of trauma in the world, many from women who were victims of gender-based violence and who fear that their lives are at risk if they are deported to their native countries."
With the drastic increases in border enforcement that began in earnest in the early 1990s, the death toll of migrants in the U.S./Mexico border region has grown as well. ImmigrationProf has regularly blogged about death on the border.
Dr. Kate Spradley, an anthropologist at Texas State University, writes for the Daily Beast about her team’s mission: examining and identifying migrant skeletons found in mass graves in Texas:
"Nothing can convey the reality of the situation in the same way as watching the new documentary Missing in Brooks County, which tells the story of the Roman family searching for their son Homero. Homero was deported to Mexico after a traffic stop, to a country he hadn’t visited in over two decades. He then attempted the dangerous journey back across the border to reunite with his family. Homero’s whereabouts are unknown since 2015 when he went missing in Brooks County. His family in Houston grieves his absence to this day. His disappearance is but one of thousands of unsolved cases that have built up over the decades.
Although federal policy impacts migration, there is no federal policy regarding death investigation and identification; rather, it relies on state and local policy. California has a regional medical examiner system, New Mexico a state system, and Arizona has a medical examiner’s office close to the border."
2020 saw a national discussion of ending systemic racism in the United States. My hope is that immigration law and policy is not left out of the discussion. With a change in presidential administrations, it is a good time to think about reforming the immigration laws and addressing the injustices in our current laws. I offer some thoughts on the subject in Bringing Racial Justice to Immigration Law, 115 Northwestern University Law Review (forthcoming 2021).
Here is an abstract of the article:
"This article is part of a collection of racial justice articles in national law reviews.
From as far back as the anti-Chinese laws of the 1800s, immigration has been a place of racial contestation in the United States. Even though today’s immigration laws are color-blind, their enforcement have unmistakable adverse impacts on people of color from the developing world. The laws, as applied, limit the immigration of people of color to, and facilitates their removal from, the United States.
Contemporary immigrant rights activism generated a powerful counter-response led by Donald J. Trump. His administration made aggressive enforcement a priority like no other in modern U.S. history. Exemplified by the administration’s heartless separation of Central American families, race has been central to the U.S. immigration policies and their enforcement.
Immigrant demands for racial justice share important commonalities with the goals of the Black Lives Matter movement. Both demand an end to racialized law enforcement and the removal of race from the criminal justice system.
Part I of this article maps the discriminatory foundations of immigration law, the lack of constitutional review, and the enduring and impenetrable fortress built by the courts to shield discrimination. Part II considers the surprising emergence of a powerful immigrant rights movement – energized and organized yet handicapped by the fact that noncitizens cannot vote – fighting for racial justice. Part III summarizes the emergence of the Trump administration’s opposition to that movement, which ruthlessly sought to maintain and reinforce the racial caste quality of the immigration system. Part IV considers the uncertain future of the quest to bring racial justice to immigration law."
Thursday, January 21, 2021
The U.S. Citizenship Act of 2021 is the name of the comprehensive immigration bill that President Biden plans to send to Congress. While the full text of the bill is still not available, you can read the administration's summary here.
According to CNN, the bill if passed would, among other things, replace the term "alien" in the INA with "noncitizen."
It's an idea that's come up before. Representative Joaquin Castro introduced legislation to change the statutory language in 2019 and 2015. Some states have actually passed similar legislation: Colorado replaced the term "illegal alien" with "undocumented migrant" in 2020 and California removed the term "alien" from if its Labor Code in 2015.
Jose Antonio Vargas, renown undocumented American, told CNN that the proposed language change is important: "How we describe people really sticks. It affects how we treat them ... How we talk about immigrants shapes the policies. It frames what are the issues really at stake here. It acknowledges that we're talking about human beings and families."
Last night, the Department of Homeland Security (DHS) suspended new enrollments in the Trump administration’s Migrant Protection Protocols program, also known as "Remain in Mexico." This keeps migrants currently waiting at the border in limbo pending further developments. Many have already been waiting for months or longer.
Stories from the Border: A Conversation with Community Storytellers on the Deportation of Childhood Arrivals and Family Separation
The Humanizing Deportation project presents a bilingual conversation with community storytellers Monserrat Godoy, Isaac Rivera, and Robert Vivar on Friday, January 22, 2021, from 1 pm- 2 pm PST via Zoom. For zoom details see here (no reservation required). The conversation will focus on their reflections on the deportation of childhood arrivals and family separation. A Q&A will follow.
Robert McKee Irwin hosts the event (coordinator of the Humanizing Deportation Project). The event is organized and co-moderated by Lizbeth De La Cruz Santana (director of the Playas de Tijuana Mural Project) and co-moderated by Sarah Ashford Hart (Ph.D. Candidate University of California, Davis).
The Boss kicked off the Biden/Harris inauguration concert last night in a heart-felt performance of Land of hope and Dreams. It is good to feel hopeful again.
There is lots of chatter about the Biden administration's Day 1 immigration initiatives (and here). Ediberto Roman analyses some of the reform issues for Bloomberg. Cesar Garcia looks at the first Biden immigration moves and the many open questions here.
Immigration Article of the Day: Unseen Policies: Trump’s Little-Known Immigration Rules as Executive Power Grab by Jaclyn Kelley-Widmer
Throughout the Trump presidency, immigration “horror stories” have riveted Americans and people across the globe. Over the past four years, splashy headlines highlighted the United States government’s dehumanization and penalization of immigrants, from travel bans to family separation to the Wall. These stories not only captured public attention, but also masked less sensational but unjust executive rules that allowed the Trump administration to overhaul the immigration landscape and maximize executive power without changing a single immigration statute. Unseen policies of expanded enforcement, partisan immigration court controls, strategic administrative precedents, and tightened regulations have all been part of the Trump administration’s complex web of practical and legal barriers for immigrants.
This Article argues that President Trump and his administration have successfully exploited the power delegated to the executive branch in part by advancing policies that are out of the public view and which take delegated powers to unprecedented levels. Within the humanitarian, enforcement, and bureaucratic realms, the administration’s “unseen policies” impact the day-to-day lives of immigrants, transform the operation of our immigration system, and undermine the rule of law. The Article explores the detrimental impact of under-the-radar executive changes in these categories and offers broad solutions. Ultimately, to return to the rule of law and establish a humane immigration system, lawyers and policy makers of the Biden administration and beyond must identify and strategize around these quotidian, unseen policies as well as the well-known challenges.
Wednesday, January 20, 2021
The Biden Administration this morning released a fact sheet on the Executive Orders it will issue later today. The immigration items are listed below:
Reverse President Trump’s Executive Order Excluding Undocumented Immigrants from the Reapportionment Count
President-elect Biden will sign an Executive Order to revoke the prior Administration’s orders setting out an unlawful plan to exclude noncitizens from the census and apportionment of Congressional representatives. President-elect Biden will ensure that the Census Bureau has time to complete an accurate population count for each state. He will then present to Congress an apportionment that is fair and accurate so federal resources are efficiently and fairly distributed for the next decade.
Preserve and Fortify Protections for Dreamers
In 2012, the Obama-Biden administration adopted Deferred Action for Childhood Arrivals (DACA) to provide temporary relief from deportation on a case-by-case basis to Dreamers, young people who were brought to this country as children. Since then, more than 700,000 young people have applied for this relief and met rigorous requirements and background checks. Many are serving our country in the armed services or as essential workers on the front lines of the pandemic. The Trump administration has tried to terminate DACA since 2017, but the U.S. Supreme Court rejected that effort and required reconsideration of that decision. The program continues, accepting new applications and renewing DACA for those who qualify under the 2012 requirements. But those opposed to DACA continue to challenge the program, threatening its continuance. The president-elect is committed to preserving and fortifying DACA. Today, he will sign a Presidential Memorandum directing the Secretary of Homeland Security, in consultation with the Attorney General, to take all appropriate actions under the law to achieve that goal. The Presidential Memorandum will also call on Congress to
enact legislation providing permanent status and a path to citizenship for people who came to this country as children and have lived, worked, and contributed to our country for many years.
Reverse the Muslim Ban
The president-elect will sign an Executive Action putting an end to the Muslim Ban, a policy rooted in religious animus and xenophobia. It repeals Proclamations 9645 and 9983, which restrict entry into the United States from primarily Muslim and African countries, and instructs the State Department to restart visa processing for affected countries and to swiftly develop a proposal to restore fairness and remedy the harms caused by the bans, especially for individuals stuck in the waiver process and those who had immigrant visas denied. This is an important step in providing relief to individuals and families harmed by this Trump Administration policy that is inconsistent with American values. The Executive Action also provides for the strengthening of screening and vetting for travelers by enhancing information sharing with foreign governments and capacity building with our partners, and directs reviews of other Trump Administration “extreme vetting” practices.
Repeal of Trump Interior Enforcement Executive Order
President-elect Biden will sign an Executive Order revoking a Trump Executive Order that directed harsh and extreme immigration enforcement. This revocation will allow the Department of Homeland Security and other agencies to set civil immigration enforcement policies that best protect the American people and are in line with our values and priorities.
Stop Border Wall Construction
Bipartisan majorities in Congress refused in 2019 to fund President Trump’s plans for a massive wall along our southern border, even after he shut down the government over this issue. He then wastefully diverted billions of dollars to that construction. By proclamation, President-elect Biden will today declare an immediate termination of the national emergency declaration that was used as a pretext to justify some of the funding diversions for the wall. The proclamation directs an immediate pause in wall construction projects to allow a close review of the legality of the funding and contracting methods used, and to determine the best way to redirect funds that were diverted by the prior Administration to fund wall construction.
Deferred Enforced Departure for Liberians Presidential Memorandum
The president-elect will sign a Presidential Memorandum to extend until June 30, 2022 the long-standing Deferred Enforced Departure (DED) designation for Liberians who have been in the United States for many years. Liberians with DED will also have their work authorization extended. This PM also directs the Secretary of Homeland Security to ensure that Citizen Immigration Services facilitates ease of application and timely adjudication for Liberians applying for residency by the Liberian Relief and Fairness Act.
Here is a DHS memorandum issued yesterday that begins as follows: "This memorandum directs Department of Homeland Security components to conduct a review of policies and practices concerning immigration enforcement. It also sets interim policies during the course of that review, including a 100-day pause on certain removals to enable focusing the Department’s resources where they are most needed. " (bold added).