Sunday, September 26, 2021
Author Edwidge Danticat for the New Yorker ("The U.S.’s Long History of Mistreating Haitian Migrants") offers some background on the U.S. government's history of mistreatment of Haitian migrants. Haitian interdiction by the first President Bush and President Clinton is part of that history. Here is a Congressional Research Service summary of "U..S. immigration policy on Haitian migrants."
Hat tip to Carrie Rosenbaum.
Beginning in the 1980s, the United States embarked on a decades-long restructuring of federal laws criminalizing migration and increasing the consequences for migrants engaging in criminal activity. Today, the results are clear: a law enforcement apparatus and immigration prison system propelled by a vast infrastructure of laws and policies. The presidency of Donald Trump augmented this trend and brought it to public attention. But lost in President Trump’s unique flair is an ideological commitment shared by multiple presidential administrations and legislators from both major political parties to use the criminal justice system and imprisonment to sift migrants. Examining these ideological attachments reveals Trump-era policies to be the outer edge of decades-long trends rather than extreme and momentary deviations from the norm.
Saturday, September 25, 2021
Kim Bojórquez for the The Sacramento reports that California yesterday eliminated from state law the use of the word "alien." Governor Gavin Newsom signed Assembly Bill 1096, by Assemblywoman Luz Rivas (D-Arleta) removing the word "alien" from the California code. Rivas previously told The Bee that she was inspired by President Joe Biden's plan to remove the term from federal law in favor of the word "noncitizen."
"As the nation's most diverse state, we are stronger and more vibrant because of our immigrant communities," said Newsom in a statement "This important legislation removes the word 'alien,' which is not only an offensive term for a human being, but for far too long has fueled a divisive and hurtful narrative. By changing this term, we are ensuring California's laws reflect our state's values."
Assemblywoman Rivas office released the following statement with the signing of the bill:
“Today marks a huge step forward in the fight to dismantle institutional racism targeted specifically towards our immigrant communities,” said Assemblywoman Luz Rivas. `For decades, the term "alien" has become weaponized and has been used in place of explicitly racial slurs to dehumanize immigrants. The words we say and the language we adopt in our laws matter – this racist term "alien" must be removed from California statute immediately. I want to thank Governor Newsom for recognizing the importance of this bill and taking action to remove derogatory language from our laws.'”
“The word ‘alien’ has no right to be in California statute – no human being is an ‘alien,’” said long-time civil rights activist Dolores Huerta. "It is insulting and dehumanizing to have that terminology in our laws. Words are powerful instruments and history has shown us how they can be used to justify institutional racism and even violence. I want to thank Governor Newsom for signing this important measure.”
“Using the outdated term ‘alien’ to describe a person is dehumanizing, and AB 1096 will change that,” said Lieutenant Governor Eleni Kounalakis. “As a daughter of an immigrant, I understand the weight that the word ‘alien’ carries, and the impact of this bill becoming law. I commend Governor Newsom for solidifying this effort to change the narrative around immigration in California.”
California’s legislature first introduced “alien” into statute in 1937, Kim Bojórquez for the The Sacramento writes. She further observes that "[i]n the 1990s, people began to use the word `alien' as a dog whistle to express bigotry and hatred without using explicitly racist language."
Immigration Article of the Day: A Domestic Reign of Terror: Donald Trump’s Family Separation Policy by Ediberto Roman and Ernesto Sagas
A Domestic Reign of Terror: Donald Trump’s Family Separation Policy by Ediberto Roman and Ernesto Sagas, 24 Harvard Latinx Law Review 65 (2021).
Family separation has the dubious distinction of being the most odious measure amongst Donald Trump’s draconian anti-immigrant immigration policies. The policy was introduced by the Trump administration as a way to broadly deter would-be immigrants and asylum seekers by instilling in them the fear of being separated from their children. After its implementation, thousands of immigrant children were taken away from their parents and sent to detention centers where they spent months alone and afraid, being physically and sometimes sexually abused, and in some highly publicized cases, dying while in custody. This article details the legal implementation of the policy, its moral failings, and its political ramifications. The authors argue that Trump’s family separation policy is not only immoral, but essentially unAmerican, and ought to be firmly rejected by those who defend human rights, the welfare of children, and the most basic norms of decency.
Friday, September 24, 2021
Kenneth Sthal is a law professor at Champan focusing on land use and local government. That said, his 2020 book Local Citizenship in a Global Age should be on immprofs radar given its discussion about "localities' flexible approach to citizenship."
Here's the publisher's pitch:
Although it is usually assumed that only the federal government can confer citizenship, localities often give residents who are noncitizens at the federal level the benefits of local citizenship: access to medical care, education, housing, security, labor and consumer markets, and even voting rights. In this work, Kenneth A. Stahl demonstrates that while the existence of these 'noncitizen citizens' has helped to reconcile competing commitments within liberal democracy to equality and community, the advance of globalization and the rise of nationalist political leaders like Donald Trump has caused local and federal citizenship to clash. For nationalists, localities' flexible approach to citizenship is a Trojan horse undermining state sovereignty from within, while liberals see local citizenship as the antidote to a reactionary ethnic nationalism. This book should be read by anyone who wants to understand why citizenship has become one of the most important issues in national politics today.
Official White House photo
What is the President Biden's approach to immigration and immigration enforcement? That question is particularly relevant given the recent response to Haitian migrants on the southern border. The administration's response follows a history of harsh measures directed at Haitian migrants. And it appears to have caused quite a rift in the administration (here and here).
Hamed Aleaziz for Buzzfeed poses the question as follows:
"What exactly is the country’s direction on immigration policy under Biden?
The Biden administration has undone several initiatives enacted under Trump, notably the entry ban for people from several majority-Muslim nations. It has also pursued aspects of the progressive agenda it promised by limiting arrests by deportation officers, largely ceasing detention of families, and reuniting many parents and children separated by the Trump administration.
. . . . Moreover, the administration has in recent weeks backed a congressional effort to create a pathway to citizenship for millions of immigrants living in the US.
But when faced with issues at the border — such as an increased flow of families and single adults beginning this spring or the recent crowd of thousands of Haitians under a bridge in Del Rio, Texas — Biden has turned to an approach favored by many leaders before him, including Trump: deterrence.
The administration has relied on a Trump-era order to conduct more than 700,000 expulsions since February that have severed immigrants from asylum protections, successfully convinced Mexico to ramp up enforcement within its own borders, and restarted another enforcement program to conduct quick deportations of families at the border." (bold added).
Only time will tell where the Biden administration goes on Immigration.
Immigration Article of the Day: Children in Custody: A Study of Detained Migrant Children in the United States by Emily Ryo and Reed Humphrey
Children in Custody: A Study of Detained Migrant Children in the United States by Emily Ryo and Reed Humphrey, 68 UCLA Law Review 136 (2021)
Every year, tens of thousands of migrant children are taken into custody by U.S. immigration authorities. Many of these children are unaccompanied by parents or relatives when they arrive at the U.S. border. Others who are accompanied by parents or relatives are rendered unaccompanied when U.S. immigration authorities separate them upon apprehension. Together, these minors are called unaccompanied alien children (UACs) and transferred to the custody of the Office of Refugee Resettlement (ORR), unless and until their immigration cases are resolved or until the children can be placed with a sponsor in the United States pending the adjudication of their immigration cases. In fiscal year 2019, the ORR held the highest number of UACs in its UAC program history.
This study presents the first systematic empirical investigation of children in ORR custody using original administrative records pertaining to migrant children who were in ORR custody between November 2017 and August 2019. Our analysis reveals an increasing number and proportion of children in U.S. custody who are extremely vulnerable: girls, young children of tender age (260 of whom are U.S. citizens), and children emigrating from countries with high rates of crime and violence. This trend suggests that insofar as punitive immigration enforcement policies may have deterred some children from undertaking the dangerous journey to the United States, those who continue to arrive at the U.S. border are likely children who are most in need of special care and legal protection.
Yet our analysis raises serious questions about the system’s capacity to afford such care and protection. We find that most migrant children held in custody were concentrated in a small number of states, which are different from the states in which their sponsors reside. Only about 11 percent of children reunified were discharged from facilities located in the same state as their sponsors’ states of residence. In addition, most migrant children were in facilities that are extremely large—for example, shelters with capacities of 100 or more children. We also find deep inequalities in the system that suggest that custodial experiences and outcomes of UACs in ORR custody are closely tied to the particular facility and type of program in which a child happens to be placed. Among other findings, our analysis shows that the median time to reunification varies widely between facilities. For example, one ORR shelter’s median time to reunification was nearly eight times as high as that of another ORR shelter. We discuss the policy implications of these findings and consider critical issues that require further investigation—issues that are central to evaluating how, whether, and to what extent the U.S. government is fulfilling its moral and legal obligation to protect migrant children inside our borders.
Thursday, September 23, 2021
The Board of Immigration Appeals has issued a decision in Matter of Arambula-Bravo, 28 I&N Dec. 388 (BIA 2021). Here is the summary:
(1) A Notice to Appear that does not specify the time and place of a respondent’s initial removal hearing does not deprive the Immigration Judge of jurisdiction over the respondent’s removal proceedings. Pereira v. Sessions, 138 S. Ct. 2105 (2018), and Niz-Chavez v. Garland, 141 S. Ct. 1474 (2021), distinguished; Matter of Bermudez-Cota, 27 I&N Dec. 441 (BIA 2018), and Matter of Rosales Vargas and Rosales Rosales, 27 I&N Dec. 745 (BIA 2020), followed.
(2) A Notice to Appear that lacks the time and place of a respondent’s initial removal hearing constitutes a “charging document” as defined in 8 C.F.R. § 1003.13 (2021), and is sufficient to terminate a noncitizen’s grant of parole under 8 C.F.R. § 212.5(e)(2)(i) (2021).
In my 2018 article, Pereira v. Sessions: A Jurisdictional Surprise for Immigration Courts, I reached the exact opposite conclusion.
I am hardly the only one to argue that such an NTA should deprive the court of jurisdiction. Immprof Geoffrey Hoffman (Houston), frequent contributor to this blog, submitted an amicus brief to the BIA on this case arguing that an NTA without time or place information is "defective" under Niz-Chavez and cannot be cured by the later issuance of a Notice of Hearing.
Now the waiting game for SCOTUS intervention begins again. I'm hoping for another scathing opinion by Justice Gorsuch. His Niz-Chavez decision was fire.
Throwback Thursday: Detain and Punish: Haitian Refugees and the Rise of the World's Largest Immigration Detention System by Carl Lindskoog
This current crisis must be viewed through the lens of our nation's historical treatment of Haitian asylum seekers. And on that front, I can think of no better Throwback Thursday recommendation than Carl Lindskoog's 2018 book Detain and Punish: Haitian Refugees and the Rise of the World's Largest Immigration Detention System.
If you're unfamiliar with it, here's the pitch:
Immigrants make up the largest proportion of federal prisoners in the United States, incarcerated in a vast network of more than two hundred detention facilities. This book investigates when detention became a centerpiece of U.S. immigration policy, revealing why the practice was reinstituted in 1981 after being halted for several decades and how the system expanded to become the world’s largest immigration detention regime. From the Krome Detention Center in Miami to Guantanamo Bay, Cuba, and to jails and prisons across the country, Haitians have been at the center of the story of immigration detention. When an influx of Haitian migrants and asylum seekers came to the U.S. in the 1970s, the government responded with exclusionary policies and detention, setting a precedent for future waves of immigrants. Carl Lindskoog details the discrimination Haitian refugees faced and how their resistance to this treatment―in the form of legal action and activism―prompted the government to reinforce its detention program and create an even larger system of facilities. Drawing on extensive archival research, including government documents, advocacy group archives, and periodicals, Lindskoog provides the first in-depth history of Haitians and immigration detention in the United States. Lindskoog asserts that systems designed for Haitian refugees laid the groundwork for the way immigrants to America are treated today. Detain and Punish provides essential historical context for the challenges faced by today’s immigrant groups, which are some of the most critical issues of our time.
An article in the New Yorker by Yasmine Al-Sayyad discusses a f . “Dial Home,” a documentary
"is based around call centers in Tijuana, where a deportee economy has mushroomed in recent years. These call centers employ deportees who speak good English and can therefore service customers in the U.S. `The whole experience of being there feels like you’re in a science-fiction movie,' Martínez Barba told me. `There are so many call centers, and there are so many people who’ve been deported who are on the phone every day, still dialing into life in the United States.' The work is notoriously relentless: strict shifts, difficult clients. The deportees are earning pesos, not dollars. But many [of the workers]. . find comfort inside their office walls, camaraderie in a common language and shared experience. `When you’re at work, it feels like you still work in the U.S.,' he says in the film. `As soon as you leave those call-center doors, it’s different.'”
Check out the article!
Hat tip to Michael Olivas.
A senior U.S. diplomat to Haiti resigns, citing the Biden administration’s ‘inhumane’ deportation policy.
The Centers for Disease Control and Prevention is requiring that evacuees from Afghanistan who have arrived in the United States get vaccinated against measles and quarantine for 21 days, after some were found to have the highly contagious virus when they arrived in the country this month.
In total, as if the Monday 9/20/21 policy issuance, the C.D.C. said it knew of 16 confirmed cases of measles among Afghan evacuees and Americans who fled Afghanistan in recent weeks — up from six that the White House confirmed late last week — and four cases of mumps. Evacuees on American military bases in the United States will have to wait three weeks after getting the MMR vaccine that protects against measles, mumps and rubella before they can leave, the C.D.C. said, to give the vaccine time to take effect. The C.D.C. is also recommending that evacuee on military bases overseas also quarantine; its quarantine authority does not extend to foreign soil.
The agency said Monday that some Afghan evacuees had “left bases before measles cases were identified,” prompting a mass vaccination campaign.
President Biden also signed an executive order that added measles to a list of communicable diseases that could require quarantines.
Florida Judge Finds Law Racially Motivated, Blocks Portion of Florida Law That Bans Local Sanctuary Policies
Rebecca Klapper for Newsweek reports that a federal judge has blocked portions of a Florida law that banned local government sanctuary policies and required local law enforcement to make their best effort to work with U.S. immigration authorities. The court enjoined parts of a Florida immigration law, finding that they were racially motivated.
U.S. District Judge Beth Bloom, an Obama appointee, said in her ruling earlier this week that the law was racially motivated, and that supporters of the measure failed to show evidence that it was needed to reduce crime. Judge Bloom also said anti-immigrant hate groups such as Floridians for Immigration Enforcement were heavily involved with both the bill, SB 168, and its sponsor.
"Allowing anti-immigrant hate groups that overtly promote xenophobic, nationalist, racist ideologies to be intimately involved in a bill's legislative process is a significant departure from procedural norms," Bloom wrote. "This involvement strongly suggests that the Legislature enacted SB 168 to promote and ratify the racist views of these advocacy groups." (bold added).
Here is a copy of the order.
Immigration Article of the Day: Borders by Consent: A Proposal for Reducing Two Kinds of Violence in Immigration Practice by Richard Delgado and Jean Stefancic
Borders by Consent: A Proposal for Reducing Two Kinds of Violence in Immigration Practice by Richard Delgado and Jean Stefancic, 52 Ariz. St. L.J. 337 (2020)
We describe a new consensual theory of borders and immigration that reverses Peter Schuck’s and Rogers Smith’s notion of citizenship by consent and posits that borders are legitimate—and make sense—only if they are products of consent on the part of both countries on opposite sides of them. Our approach, in turn, leads to differential borders that address the many sovereignty and federalist concerns inherent in border design by a close examination of the policies that different borders—for example, the one between California and Mexico—need to serve in light of the populations living nearby. We build on our work on border laws as examples of Jacques Derrida’s originary violence. We assert that laws that exhibit a high degree of originary violence lead, almost ineluctably, to actual violence and cruelty, such as that perpetrated by Donald Trump’s child-separation policy, and that consensual and relatively open borders are the most promising way to minimize both forms of violence, originary and actual.
Wednesday, September 22, 2021
Kari Hong, formerly of Boston College Las School and now of the Florence Project, spoke at yesterday's contribution to the Abolish ICE? online conference. (Reminder: The conference continues this morning and tomorrow afternoon.)
One of the last questions of the conference, put to all panelists, was a call for proposals to change to the immigration system, whether small or large.
Kari's response was a list of seven possible changes:
- Universal representation in immigration proceedings
- Eliminate expedited removal
- Restructure immigration courts to make them independent.
- Place asylum officers at the border.
- Legalize DACA and all frontline workers.
- Abolish detention.
- Repeal IIRIRA.
It struck me that this was a wonderful list of possible law review topics. Some have been explored before (universal representation, legalize DACA). Others have not (repeal IIRIRA). But any one of these proposals on their own would make a wonderful law review article. I know that students sometimes get stuck trying to come up with topics, here's a ready-made list!
Earlier this week, the U.S. Senate Parliamentarian rejected budget reconciliation as a way to secure immigration reform with a simple majority. But Democrats have not thrown in the towel. Some are considering a simple reform that long has been recommended -- updating relief known as registry.
Immigration and Nationality Act § 249 provides for registry, a record of admission for lawful permanent residence for undocumented persons who entered the United States prior to January 1, 1972. That is a long time ago and the number of noncitizens eligible for it decreases as time passes. The date was last updated in 1986 and commentators have long said that the time is overdue for moving the registry date forward. Background materials on registry can be found here and here.
Marianne LeVine and Sarah Ferris for Politico report that Democrats and advocates are now floating the idea of narrow immigration reform and a simple change to “registry.” Some Democrats say simply updating that law with a more recent year, which would increase the number of immigrants eligible for relief from removal, could pass muster with the Senate parliamentarian.
The Politico story quotes two Democrats in Congress on the registry alternative.
"The registry is one possibility," said Rep. Lucille Roybal-Allard (D-Calif.), noting that the law hasn't been updated since the Reagan era. "We're looking at all different alternatives. We're not giving up."
Senator Robert Menendez (D-NJ) is quoted as saying that “We’re not changing the law which was the essence of her arguments that I read in her opinion,” he said. “We are just updating a date.”
The Chicago Sun Times editorial board in May 2021 wrote that "[i]f the registry’s cutoff date were updated to the year 2005, for example, about 5,650,000 immigrants — 51% of the undocumented population in the U.S. — would be eligible to adjust their status under the registry, according to the Migration Policy Institute." (emphasis added).
More than two decades ago, the Trafficking Victims Protection Act (TVPA) established new, robust protections for immigrant victims of trafficking. In particular, Congress created the T visa, a special form of immigration status, to protect immigrant victims from deportation. Despite lofty ambitions, the annual cap of 5,000 T visas has never been reached, with fewer than 1,200 approved each year. In recent years, denial rates also began to climb. For example, U.S. Citizenship and Immigration Services denied 42.79% of the T visa applications adjudicated in fiscal year 2020, compared with just 28.12% in fiscal year 2015. These developments came as former President Donald J. Trump, like many presidents before him, proclaimed a deep commitment to end the “epidemic” of human trafficking and to protect “innocent” victims.
Though scholars have critiqued the general protection framework for immigrant victims of trafficking, this Article unearths an understudied problem: the often-unseen role of the “shallow state.” In contrast to the much-discussed “deep state” of career bureaucrats, this Article suggests that low-level administrative actors adjudicating humanitarian immigration cases have subtly worked to undermine protections for immigrant victims of trafficking. This Article demonstrates how administrative actors, through a range of tactics, including delay, rejection, and heightened stakes, have contorted the T visa application process to make it more difficult for immigrant victims to navigate. The Article explores how these actions—often diffuse and obscured—have been hard to identify and subject to judicial review. It warns that these bureaucratic tendencies have resulted in declining approval rates with the potential to erode protections for immigrant victims of trafficking for years to come. It, thus, prescribes not only greater attention to such practices but also administrative and judicial remedies.
Tuesday, September 21, 2021
Human Rights Watch: US: Treatment of Haitian Migrants Discriminatory -- Chased by Border Agents on Horseback; Returned to Danger in Haiti
"US: Treatment of Haitian Migrants Discriminatory --
Chased by Border Agents on Horseback; Returned to Danger in Haiti
(Washington, DC, September 21, 2021) – The US deployment of border agents on horseback against Haitian migrants on September 19, 2021, stems from abusive and racially discriminatory immigration policies by the administration of President Joe Biden, Human Rights Watch said today. The previous day, the Department of Homeland Security announced a six-step `strategy to address the increase of migrants in [the Texas border city of] Del Rio' that included a `surge' of agents to `improve control of the area' and new expulsion flights to Haiti.
The Haitians are being returned to Haiti under a US policy known as Title 42, which singles out asylum seekers crossing into the United States at land borders – particularly from Central America, Africa, and Haiti who are disproportionately Black, Indigenous, and Latino – for expulsion. The expulsions are purportedly on public health grounds, but are discriminatory and abusive. By contrast, thousands of other travelers are able to enter the US.
`The US government showed a total disregard for the right to seek asylum when it sent agents on horseback with reins flailing to control and deter this largely Black migrant population,” said Alison Parker, US managing director at Human Rights Watch. “This violent treatment of Haitians at the border is just the latest example of racially discriminatory, abusive, and illegal US border policies that are returning people to harm and humanitarian disaster.'”
Click the link above for further details.
From the Bookshelves: Beyond Borders: The Human Rights of Non-Citizens at Home and Abroad. Edited by Molly Katrina Land, Kathryn Rae Libal, Jillian Robin Chambers
Beyond Borders: The Human Rights of Non-Citizens at Home and Abroad. Edited by , University of Connecticut School of Law, , University of Connecticut School of Social Work, , University of Connecticut
The publisher's description of the volume:
"States have long denied basic rights to non-citizens within their borders, and international law imposes only limited duties on states with respect to those fleeing persecution. But even the limited rights previously enjoyed by non-citizens are eroding in the face of rising nationalism, populism, xenophobia, and racism. Beyond Borders explores what obligations we owe to those outside our political community. Drawing on contributions from a broad variety of disciplines – from literature to political science to philosophy – the volume considers the failures of law and politics to guarantee rights for the most vulnerable and attempts to imagine new forms of belonging grounded in ideas of solidarity, empathy, and responsibility in order to identify a more robust basis for the protection of non-citizens at home and abroad. This title is also available as Open Access on Cambridge Core."