ImmigrationProf Blog

I study migrants traveling through Mexico to the US, and saw how they follow news of dangers – but are not deterred

This piece from The Conversation is not altogether surprising: 

I study migrants traveling through Mexico to the US, and saw how they follow news of dangers – but are not deterred by Angel Alfonso Escamilla García.

KJ

LSA Puerto Rico 2023 Sessions on Citizenship and Migration (CRN2): Thursday 6/1/2023

There are more than 30 sessions on citizenship and migration being sponsored by CRN2. There is also a happy hour at the Miramar food truck park from 6:30-8PM.

 

Here are today's sessions. 

 

Thursday 6/1/2023

Detained: The History of US Law, Profit, and Immigrant Detention

An End to ICE?: Abolitionist Policies and Converging Discourses on Racism, Citizenship, and Immigrant Detention

Migration Precarity: Students and Families

The Coloniality of Migration and Legal Imaginaries of Inclusion

Migration and (Neo)colonialism

The Role of "Community" in the Production of Separate and Unequal Spaces

Unauthorized Love: Mixed-Citizenship Couples Negotiating Intimacy, Immigration, and the State

The Constitutionalization of Human Rights Law: Implications for Refugees

Unaccompanied Migrant Children in US Government Custody, 2014-2021

 

More to come...

MHC

LSA Puerto Rico 2023 sessions on Puerto Rico

The Law and Society Association Annual Meeting convenes in Puerto Rico. As such, there are plenary sessions and plentiful discussions of the US territory, its second-class citizenship, and its colonial history. Here is a non-comprehensive sampling of thematic panels:

 

Thursday 6/1/2023

US Territorial Policy in Puerto Rico: From the Northwest Ordinance to Self-Determination

Puerto Rico Healthcare Ground Zero: A Crisis of Disparities

Fiscal Control Board, Neoliberalism, and Worker Rights in Puerto Rico (Spanish)

 

Friday 6/2/2023

Global Colonialism and Puerto Rico in Present Tense: On Oppression, Law and Decolonial Futures

Defunding Disaster: Building Political Frameworks for Collective Care and Thriving from Louisiana to Puerto Rico and Beyond

Balzac v. People of Porto Rico and the Invisible Precedent: Contemporary Effects of the Doctrine of Separate and Unequal

Effects of Dependence and Subordination in Puerto Rico: Alternatives to Economic Stagnation and Precarious Democracy

Welcome to Tropi(fis)cal Paradise: Critical Perspectives of the Puerto Rican Visitor Economy

Lessons from the LatCrit Experience of Academic Activism: Returning to Puerto Rican Roots

Pathways to Puerto Rico's Decolonization

 

Saturday 6/3/2023

Feminist Activism in Puerto Rico

Gentrification and Forced Displacement: The Colonial Legacy of Puerto Rico’s Housing Crisis

Coloniality, Resistance and Indigenous Rights

 

Sunday 6/4/2023

Colonial Structures and Decolonization

MHC

From the Bookshelves: Brown and Gay in LA: The Lives of Immigrant Sons by Anthony Christian Ocampo

Brown and Gay in LA: The Lives of Immigrant Sons by Anthony Christian Ocampo, NYU Press 2022

 The publisher's description:

The stories of second-generation immigrant gay men coming of age in Los Angeles

Growing up in the shadow of Hollywood, the gay sons of immigrants featured in Brown and Gay in LA could not have felt further removed from a world where queerness was accepted and celebrated. Instead, the men profiled here maneuver through family and friendship circles where masculinity dominates, gay sexuality is unspoken, and heterosexuality is strictly enforced. For these men, the path to sexual freedom often involves chasing the dreams while resisting the expectations of their immigrant parents—and finding community in each other.

Ocampo also details his own story of reconciling his queer Filipino American identity and those of men like him. He shows what it was like for these young men to grow up gay in an immigrant family, to be the one gay person in their school and ethnic community, and to be a person of color in predominantly White gay spaces. Brown and Gay in LAis an homage to second-generation gay men and their radical redefinition of what it means to be gay, to be a man, to be a person of color, and, ultimately, what it means to be an American.

KJ

More than 1 in 3 student visas denied

According to State Department data, in 2022, consular officers denied a record 220,676 student visas. This means 35%, or more than 1 in 3 student visa applicants, were denied; it is a much higher rate than other visa denials.

David Bier of the Cato institute attributes the change to a shift in the number of Chinese and Indian applications. Chinese visa applications that are granted 2 to 4 times more often than Indian applications are trending downward, which reduces a reliable stream of visa grants. Meanwhile, Indian visa applications that are more likely to be denied are up.

Bier writes of the overall reduction in student visas on a corresponding blog post, "This is a disaster as student visas are the jumping-off point for most skilled immigrants." So the impacts will be felt by employers. It is also consequential for universities since the U.S. Department of State turned down 220,676 students who would have likely paid roughly $30,000 per year or $6.6 billion per year in tuition and living expenses. Over four years, that number rises to $26.4 billion in lost economic benefits to the United States. 

MHC (H/T David Biers, @David_J_Bier)

Immigration Article of the Day: The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog by Donald Kerwin and Evin Millet

The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog by Donald Kerwin and Evin Millet, Journal on Migration and Human Security (2023)

Abstract

The US immigration court system seeks to “fairly, expeditiously, and uniformly administer and interpret US immigration laws” (DOJ 2022a). It represents the first exposure of many immigrants to due process and the rule of law in the United States, and occupies an integral role in the larger US immigration system. Yet it labors under a massive backlog of pending cases that undermines its core goals and objectives. The backlog reached 1.87 million cases in the first quarter of FY 2023 (Straut-Eppsteiner 2023, 6). This paper attributes the backlog to systemic failures in the broader immigration system that negatively affect the immigration courts, such as:

 

•  Visa backlogs, United States Citizen and Immigration Services (USCIS) application processing delays, and other bottlenecks in legal immigration processes.

 

•  The immense disparity in funding between the court system and the Department of Homeland Security (DHS) agencies that feed cases into the courts.

 

•  The failure of Congress to pass broad immigration reform legislation that could ease pressure on the enforcement and court systems.

 

•  The lack of standard judicial authorities vested in Immigration Judges (IJs), limiting their ability to close cases; pressure parties to “settle” cases; and manage their dockets.

 

•  The absence of a statute of limitations for civil immigration offenses.

 

•  Past DHS failures to establish and adhere to enforcement priorities and to exercise prosecutorial discretion (PD) throughout the removal adjudication process, including in initial decisions to prosecute.

 

•  The location of the Executive Office for Immigration Review (EOIR), which oversees US immigration courts, within the nation’s preeminent law enforcement agency, the Department of Justice (DOJ).

 

•  The misconception of many policymakers that the court system should primarily serve as an adjunct to DHS.

 

•  A past record of temporary judge reassignments and government shutdowns.

 

The paper supports a well-resourced and independent immigration court system devoted to producing the right decisions under the law. Following a short introduction, a long section on “Causes and Solutions to the Backlog” examines the multi-faceted causes of the backlog, and offers an integrated, wide-ranging set of recommendations to reverse and ultimately eliminate the backlog. The “Conclusion” summarizes the paper’s topline findings and policy proposals.

 

Click here to register for a webinar on the paper.

 

KJ

A Message from MALDEF on 20 Years of Latina/os as the Largest Minority Group

 

A message from MALDEF:  In 2003, Latinos surpassed African Americans to become the largest ethnic/racial minority group in the United States. The Census Bureau’s announcement prompted speculation that the demographic shift would reshape the national conversation around the social and economic divide in America.

But twenty years later, little has changed. Latinos largely remain closed out from much of the national conversation on key issues despite their growing numbers and remarkable contributions to the U.S., particularly during the pandemic.

Instead, the growth of the Latino community has sparked a backlash. In state after state, lawmakers are adopting measures intended to roll back the civil rights gains of the last 50 years. Emboldened by Donald Trump’s demonization of Latinos, many white supremacist leaders are resurrecting dangerous and false replacement theories intended to fuel racial fear among some and to target Latinos.

KJ

The Supreme Court Vacates and Remands Four Cases In Light of Santo-Zacaria

Official Photo of the U.S. Suprme Court

 Britain Eakin for Law360 (Listen to article) reports that the U.S. Supreme Court yesterday revived appeals from four noncitizens fighting deportation, remanding the cases after Court decision earlier this month.  In granting the four petitions for certiorari, the Court vacated the circuit court judgments and remanded for further proceedings for further consideration in light of its May 11 decision in Santos-Zacaria v. Garland, which held that 8 U.S.C. 1252(d)(1) is not jurisdictional, and does not limit the circuit courts' authority to hear challenges to Board of Immigration Appeals decisions.  For a recap of the Santos-Zacaria decision, click here.

In all four cases, the circuit courts had determined they lacked jurisdiction over all or part of the BIA appeals. The decision in Santos-Zacaria resolved a circuit split over whether the exhaustion requirement of the law is jurisdictional, holding that administrative exhaustion is not mandatory.

KJ

The Ninth Circuit, Racism, and Immigration Law

Last week, in a widely-reported decision, the U.S. Court of Appeals for the Ninth Circuit, once known for its liberalism, reversed a lower court finding that Congress passed a federal immigration law with an intent to discriminate against persons from Mexico.  The law in question bars the unlawful re-entry into the United States of previously removed noncitizens.  The court rejected the lower court ruling even though district court fact findings are rarely disturbed, the evidence included a racial epithet (“wetbacks”) in a Department of Justice letter that was part of the legislative history, and the overwhelming majority of the persons convicted under the statute year in and year out have been Latina/o.  The ruling in United States v. Carrillo-Lopez shows both how dramatically the Ninth Circuit has changed over time and, at the same time, how difficult it is to dislodge systemic racism from the U.S. immigration laws.

Because of its geographic proximity to the U.S./Mexico border, the Ninth Circuit hears more immigration appeals than any other circuit.  Conservatives for years criticized the decisions of the court as too liberal.  Although the Supreme Court reversed some Ninth Circuit’s immigration decisions, it in INS v. Cardoza-Fonseca :: 480 U.S. 421 (1987) affirmed the opinion of Judge Stephen Reinhardt, known as the court’s “liberal lion,” which outlined the evidentiary burden on noncitizens fleeing feared persecution and seeking asylum in the United States.

With conservatives today a majority of the Ninth Circuit’s judges, the days of the court being reasonably labeled as ultra-liberal are long gone.  The opinion rejecting the Equal Protection challenge to the illegal re-entry statute in United States v. Carillo-Lopez was written by Judge Sandra Ikuta, a George W. Bush appointee.  The case turned on the requirement that, to prevail on an Equal Protection challenge to a law, the plaintiff must prove that the government intended to discriminate.  It, of course, is difficult to prove what is in one’s mind and thus is not surprising that Judge Ikuta found that race had not been adequately established as a motivating factor for the illegal re-entry law. 

In so holding, the court rejected the claim that the reference by a Department of Justice official to “wetbacks,” a racial epithet directed at Mexicans, in discussing the law failed to support a finding of a discriminatory intent.  Nor were the stark impacts of Latina/os suffering the overwhelming majority of the criminal convictions under the law sufficient to prove such an intent.  One is left to wonder what, in the court’s eyes, would be sufficient to prove a discriminatory intent.  The court’s restrictive notion of what proves a discriminatory intent likely will limit successful discrimination challenges to, among other things, government policing practices, housing laws, and employment decisions.

As the nation grapples with systemic racism in criminal law enforcement, it has begun to confront such racism in the immigration laws.  In the first comprehensive federal immigration law in the 1800s, Congress passed the Chinese Exclusion Act in an attempt to end Chinese immigration.  The discriminatory tradition lives on in the modern immigration laws and their enforcement.  Bringing race to the forefront of the immigration debate, President Trump crudely denigrated Mexican, Salvadoran, Haitian, and other immigrants and proclaimed the need for more immigrants from Norway.  Exemplifying President Trump’s approach to immigration, the Muslim ban barred the admission of migrants from a group of predominately Muslim nations.

In rejecting the claim that the law targeting Mexicans was motivated by racism, Judge Ikuta in United States v. Carrillo-Lopez emphasized the narrow scope of judicial review of immigration laws and policies, citing, among many cases, the Supreme Court decision to uphold the Muslim ban in Trump v. Hawaii (2018).  The Ninth Circuit’s ruling will make it difficult to challenge the provisions of the immigration laws that are facially neutral (i.e., do not mention race) but have disparate and dramatic impacts on immigrants of color from the developing world.

In the end, the Ninth Circuit’s ruling in United States v. Carrillo-Lopez shows how much things have changed and how much they remain the same.  The Ninth Circuit has become more conservative.  And systemic racism remains at the core of U.S. immigration law and its enforcement.  Moreover, the Ninth Circuit in United States v. Carrillo-Lopez made it more difficult for plaintiffs to successfully challenge many discriminatory laws and policies. 

KJ

Back to the Future? Trump and Birthright Citizenship

Official White House Photo

From the New Republic:  "Donald Trump announced [today] that if he is elected president, he will end birthright citizenship as part of an attempt to stop undocumented immigration to the United States. . . . Undoing the Fourteenth Amendment would be a lengthy and complicated process, which the former president does not seem to understand."

KJ

Picture books on immigration

This book display shows several picture books on immigration that may be useful for teaching, clients, or enjoyable to immprof readers themselves! Of them, the Notebook Keeper and Mama's Nightingale concern family separation at the US-Mexico border, from Mexico and Haiti respectively. What is a Refugee is recommended by the International Rescue Committee and the UN. (The IRC also recommends these adult books on the refugee experience.)

A broader discussion of the importance of child refugee stories appears in the Conversation.

MHC

 

Chance to Come Home, a New Film on the Unjustly Deported

The National Immigrant Justice Center (NIJC) is premiering Chance to Come Home film on Thursday at 2 pm EST, RSVP HERE.

The film features individuals who were unjustly deported and seeking to reunite with their loved ones.

The short is created by award-winning filmmaker Alex Rivera. At the NIJC event, participants will be introduced to 10 unjustly deported advocates & hear from members of Congress. The unjustly deported include veterans, DACA recipients, activists & parents separated from children.

 

IE

Why Florida's new immigration law is troubling businesses and workers alike

Official State of Florida Photo

Vanessa Romo for NPR looks at the controversy over a new Florida immigration law.  "Pressure is growing for a boycott of Florida, including Latino truck drivers who vow to stop deliveries across the state and calls for an immigrant labor strike on June 1. Businesses are pledging to shutter their doors for the day to protest Gov. Ron DeSantis' sweeping new immigration law."

Both businesses and undocumented immigrants are worried about the penalties under the Florida law for those who violate employment mandates:

"Supporters say it will help expel the recent influx of immigrants, stave off future arrivals, and provide more job opportunities to citizens and others in the country lawfully. Critics say it will cost the state billions in lost revenue, while many of the harshest penalties are unlikely to be enforced."

The report looks at key provisions of the law and how they may impact the state's economy.

KJ

Guest post: Minyao Wang on U.S. v. Carrillo-Lopez

Guest Post by Minyao Wang

Last week a unanimous Ninth Circuit panel, composed of two judges appointed by the second President Bush and one judge appointed by President Obama, ruled in United States v. Carrillo-Lopez that 8 U.S.C. § 1326, which criminalizes reentry into the United States after deportation, is constitutional. The court reversed an earlier historic decision by Chief Judge Miranda Du of the District of Nevada that the provision violated the Fifth Amendment because Congress was motivated by racial animus toward people born in Mexico and Latin America when it enacted § 1326 as part of the Immigration and Nationality Act of 1952. Section 1326 was integral to the Trump administration’s assault on immigration. For the fiscal year ending in 2020, cases under § 1326 incredibly accounted for one third of all federal criminal prosecutions.  In border districts, such prosecutions predominated the criminal dockets.

Under the framework for analyzing such constitutional challenges, a plaintiff must come forward with evidence that an impermissible Congressional purpose to discriminate was a “substantial or motivating factor.”  If plaintiff clears this hurdle, then the government can still prevail by establishing that the law would have been enacted even if the discriminatory purpose was not considered by Congress. This burden allocation by necessity tilts the playing field in favor of the government.  Before the Ninth Circuit, the government argued that immigration-related laws should be reviewed under a more deferential standard in light of congressional plenary power over immigration. The Ninth Circuit did not reach that question because in its view, the challenger failed to carry his burden that race was a substantial or motivating factor for the illegal reentry law.

There was circumstantial evidence of racial discrimination on the part Congress when it passed the 1952 Act over President Truman’s veto. But the Ninth Circuit resolved all doubt in favor of the government.  It explained away offensive language in the legislative history regarding the influx of unlawful migrants from south of the border as “a factual description of Mexicans and other Latin Americans” as opposed to a denigratory comment on a racial group.  Even the use of the term “wetback” in the legislative history was not enough because (i) the term was used by an Executive Branch official, not a member of Congress, (ii) it was used in the context of clarifying immigration officers’ search authority and, (iii) it was not directly tied to the enactment of § 1326.

Section 1326 was derived from the Immigration Act of 1929.  It was not disputed that this earlier law was motivated by racism. But the panel concluded that this shameful pedigree was not relevant.  The Congress comprehensively rewriting the nation’s immigration laws in 1952 was not tainted by the racism of its predecessor.  The panel also rejected the argument that Congress must expressly disavow the racist animus from an earlier era. In invalidating § 1326, Judge Du had relied heavily on a declaration by UCLA History Professor Kelly Lytle Hernández, the nation’s leading historian on § 1326.  But the Ninth Circuit dismissed in a footnote Professor Lytle Hernández’s declaration.

This case in my view was highly winnable. There is no way to sugarcoat the decision, which is a devastating blow for advocates of immigrant rights. The decision will be used to devastating effect if there is a new Trump-like administration. It is in particular disappointing that Judge Morgan Christen, who has had a history of authoring sensible opinions (see her thoughtful dissent in another case here, which will be reheard en banc by the court), did not dissent.

In my view, immigrant advocates need to be more thoughtful in their legal tactics.  The federal public defender did an excellent winning job in front of Judge Du. But on appeal advocates inexplicably chose a polarizing academic with fringe views about the Constitution and a losing history in court to argue their case.  As soon as that selection was made, my pro bono clients (some of the best-known civil right organizations on the East Coast) decided to forego filing amicus briefs. My sense is that having a radical professor as lead counsel alienated the two Bush appointees on the panel from the start and it proved too much for the Obama appointee too.  The result was pre-ordained.  Advocates need to understand that whether in the courts or on Capitol Hill, coming across as a fringe radical is counter productive.  

KJ       

Remembering Our Deported Veterans on Memorial Day

Since the passage of the 1996 immigration laws, thousands of U.S. veterans have been deported from the United States despite serving our country honorably in military service.

A PBS documentary released in 2021 features some of the stories of military veterans deported after their military service.

The Biden administration has allowed some deported veterans to return, like Laura Meza, who had this to say to CBS News when she returned home to the US last month: "I'm still walking on clouds. This is like a dream. This is a dream. I've been praying for this for 16 years." 

To learn more about the banishment of veterans and what needs to be done, see this report by the ACLU of California.

IE

Happy Memorial Day!

Photo courtesy of U.S. Department of Veteran Affairs

Memorial Day honors the Americans veterans who gave their last for their country.  Let's not forget our immigrant veterans.

The Medal of Honor is "our nation’s highest award for valor. Since the first Medals of Honor were presented during the Civil War, more than 700 recipients of the award have been immigrants who distinguished themselves by their gallantry during military action.

U.S. Citizenship and Immigration Services recognizes the extraordinary heroism of this select group of heroes by dedicating space in 29 of our facilities to recognize their gallantry and tremendous courage. Their bravery serves as an enduring reminder that immigrant recipients of the Medal of Honor embody the best of American values and continues to inspire us today.

The following immigrant Medal of Honor recipients have USCIS facilities named after them."  Click this link to see the list.

KJ

 

 

At the Movies: The Six: The Untold Story of RMS Titanic's Chinese Passengers

 

 

The sinking of the Titanic has a distinct hold on the American imagination.  A 2021 documentary film "The Six" looks at an aspect of the luxury ship's sinking that has been largely ignored.  IMDb describes the film as follows:  "The last great mystery of Titanic is unraveled, as an international team searches for the ship's lost Chinese passengers, uncovering an extraordinary tale of survival and dignity in the face of racism and anti-immigrant policy."  The film's website offers more detail:

"When RMS Titanic sank on a cold night in 1912, barely 700 people escaped with their lives. Among them were six Chinese men. Arriving in New York with the other survivors, the six were met not with compassion, but suspicion and slander. Less than 24 hours later, they were expelled from the country, and vanished.

What became of them, and why did they disappear so completely? In an epic journey that crosses continents, an international team of investigators sets out to uncover the truth about the six Chinese, and to right a century-old injustice.

For the first time, we discover who these men really were, tracing their origins and tracking down descendants denied access to their history. The Six is an extraordinary story of survival and dignity in the face of racism and anti-immigrant policy that still reverberates today."

 

KJ

 

 

Open Questions, Legal Hurdles for Biden’s New Border Rule

Shalini Bhargava Ray for Lawfare looks critically at the Biden administration's new border rule that

 

"creates new pathways for lawful entry and limits access to asylum for unauthorized entrants. Although the rule takes important steps to create alternatives to unauthorized entry for those seeking refuge, serious questions remain about the viability and practical accessibility of those pathways. The rule and related policies also face challenges from both sides of the political spectrum, with the ACLU assailing the rule as a violation of the Immigration and Nationality Act (INA), the Administrative Procedure Act (APA), and international law, and Florida challenging related Customs and Border Protection (CBP) guidance on use of the executive’s parole power to allow noncitizens into the country on a temporary basis. 

The new rule, titled Circumvention of Lawful Pathways and promulgated jointly by the Department of Homeland Security and the Department of Justice, addresses the expiration of a COVID-era border expulsion policy known as Title 42."

 

1) Pres. Biden's #AsylumBan pitfalls & benefits analyzed by Ala. law prof Shalini Bhargava Ray:https://t.co/H5hMzv0j0D

— Peter Margulies (@MarguliesPeter) May 26, 2023

KJ

Immigration to Britain hit a record high in 2022, Brexit a success?

Photo courtesy of Don Roth

Brexit was the cure in many Brits' minds to excessive immigration.  Jill Lawless (yes, that is the reporter's last name) for the Los Angeles Times outlines the latest immigration controversy in the United Kingdom.  The number of people moving to Britain hit a record high of more than 600,000 in 2022, which has renewed debate about immigration:

"Net migration — the difference between the number of people arriving and those leaving — was 606,000 for the year, according to the Office for National Statistics. A total of 1.2 million people moved to the U.K. in 2022, while 557,000 left.

The net figure is up from the 2021 tally of slightly fewer than 500,000. Britain's total population is about 67 million.

The statistics office said the record level was due to a `series of unprecedented world events throughout 2022 and the lifting of restrictions following the coronavirus pandemic.' . . . 

 

 

 

Prime Minister Rishi Sunak said the immigration figure was `too high,' but he did not say what an ideal number would be. . . . 

 

The high figure revived debate about Britain’s departure from the European Union, which was motivated in part by the arrival of hundreds of thousands of people from across Europe in the years before the 2016 Brexit referendum.

Supporters of Brexit said leaving the EU — membership in which gives citizens of any EU nation the right to live and work in all the others — would allow Britain to control its borders. Many who voted for Brexit thought immigration would fall, but the opposite has been true."

KJ

NEW REPORT: "The State of Immigration Enforcement and Legal Resources in Orange County”

Don't miss the NEW REPORT by Sabrina Rivera, Executive Director of the Orange County Justice Fund, and Dr. Blanca A. Ramirez, a sociologyst at USC, "The State of Immigration Enforcement and Legal Resources in Orange County.”

A full copy of the report is available here. 

The report places a spotlight on the changing immigration enforcement conditions in Orange County and the ways in which families in Orange County must navigate these threats.

The report relies on different data sources, including interviews with community members, legal services providers, and immigration attorneys. They also rely on data from TRAC at Syracuse University, the California Department of Social Services, and the VERA Institute. The report's appendix includes a timeline of immigration enforcment in Orange County.

The report comprehensively analyzes the different types of legal resources available in Orange County, including through law school clinics, nonprofit organizations, and private immigration lawyers.

IE