Tuesday, October 26, 2021
Immigration Article of the Day: Non-State Actors 'Under Color of Law:' Closing a Gap in Protection Under the Convention Against Torture, Anna Welch & Sangyeob Kim, Harvard Human Rights Journal
The prohibition against torture is one of the most universally accepted principles of international law. Yet, the world is experiencing a global restructuring that poses a serious threat to international efforts to prevent and protect against torture. The rise of powerful transnational non-State actors such as gangs, drug cartels, militias, and terrorist organizations is challenging States’ authority to control and govern their territory. Many of these non-State actors commit torture with alarming impunity. This global power restructuring is testing the ability of U.S. laws to protect those fleeing torture, especially in light of the fact that State actors (as opposed to private or non-State actors) are the primary subject of most of our international and domestic torture jurisprudence.
In the U.S., those seeking protection against deportation under the Convention Against Torture (the “CAT”) must establish a likelihood of torture at the instigation of or by consent or acquiescence of a public official acting in an official capacity or other person acting in an official capacity. For example, if an individual faces torture by a police officer or other government official for non-lawful purposes, this person must not be returned to that particular country. CAT protection is still warranted even if a private actor (such as a gang member) will likely torture the individual as long as the torture is done with the actual knowledge, consent or acquiescence of a state actor, such as a police officer.
However, what is meant by “other person acting in an official capacity” such that torturous acts by non-State actors fall under Torture Convention protection remains unclear under U.S. CAT jurisprudence. In other words, to what extent might actions by non-State actors become “State-like” such that the CAT should apply. What if private actors are de facto controlling certain areas of a country untouchable by State actors? Or, what if non-State actors’ authority and presence are so significant and intertwined with State authority such that torture is occurring with impunity? Indeed, for the latter scenario, the applicant may establish CAT eligibility by showing a State actor’s acquiescence or consent. However, such cases are difficult to prove if the State excuses its inaction on its inability to protect victims from harm perpetrated by private actors. This is particularly true under current U.S. jurisprudence on government acquiescence, in which some federal courts have found that a mere inability to protect victims is not enough to meet acquiescence to the torture.
This article identifies a major chasm in U.S. CAT jurisprudence that allows individuals to be deported back to countries where they face likely torture. This article argues that resolving failures in U.S. CAT acquiescence jurisprudence addresses part of the problem as it relates to torture by private actors. However, this is only half of the bridge across the chasm. The other half requires a look at when non-State actors are acting State-like such that they should fall within the separate CAT provision of “other person acting in an official capacity.” While many aspects of the CAT has been litigated, clarified, and developed through case law since the U.S. ratified the CAT, the question of whether and when a non-State actor can be deemed an “other person acting in an official capacity” under the CAT within the United States jurisprudence lacks scholarship or case law. We make the novel argument that courts and agencies should apply factors employed in civil rights claims (also known as 1983 claims) to assess whether a non-State actor can act in an official capacity or under color of law. Doing so will help fill a critical gap in U.S. CAT protections, and thereby prevent the refoulement of individuals facing likely torture.
Monday, October 25, 2021
MPI Report--From Jailers to Case Managers: Redesigning the U.S. Immigration Detention System to Be Effective and Fair
From Jailers to Case Managers: Redesigning the U.S. Immigration Detention System to Be Effective and Fair is a recent MPI report authored by Randy Capps and Doris Meissner.
The report begins by noting that the "sprawling immigration detention system" in the United States "has long been controversial for its prisonlike conditions and health risks." The authors note that this detention also comes with a hefty price tag: $2.8 billion annually.
The authors envision something altogether different:
replacing the longstanding system of detention for most immigrant adults apprehended in the U.S. interior and at least initially for many of those who arrive at the border without authorization and seek asylum, with a system that makes release with supervision and case management (i.e., monitoring, check-ins, legal advice, and other support services) the prevailing method for exercising immigration custody whenever possible. A redesigned system would also need to attend to the situation of apprehended families with children, as by court order they cannot be detained for lengthy periods. It does not address the custody system for unaccompanied children, whose cases are governed by separate statutes and requirements managed by the Office of Refugee Resettlement (ORR) in the U.S. Department of Health and Human Services.
Here are their key points:
- Detain individuals who pose public safety risks.
- Use the least restrictive feasible custody options.
- Provide legal counsel, case management, and social services.
- Design nondetention custody options to ensure that immigrants appear in immigration court and comply with the removal process.
In the end, they write: "responding to current and likely future immigration realities both at U.S. borders and in the interior calls for rethinking the role and nature of the immigration custody system, steering it away from a punitive, detention-centered approach and toward more proportionate and cost-effective policies that still ensure compliance with immigration court and removal proceedings."
On October 29, 2021, the Administrative Law Review is hosting a virtual symposium on the role of administrative law in detention and imprisonment. It is organized by AU Professor Jayesh Rathod and features many immigrationprof blog community members such as Jill Family and David Rubenstein. More information here. Register here.
MHC (h/t Jill Family)
Michele R. Pistone, Professor of Law at Villanova, shares that registration is open for an online certificate training program to teach immigration law and practice. The Villanova Interdisciplinary Immigration Studies Training for Advocates (VIISTA) program trains students to become immigrant advocates ready to serve migrants and refugees without requiring a JD. So far VISSTA graduates have been serving refugees and Afghan asylum seekers, among other types of work.
The program was developed to increase representation for immigrants, who are not guaranteed rights to court appointed lawyers in immigration court, by educating legal advocates (akin to nurse practitioners in health care). Graduates will be eligible, under existing regulations, to apply to become Department of Justice “accredited representatives,” authorized to provide low-cost legal representation to migrant and refugee families when they work for DOJ "recognized organizations."
- Learn from renowned faculty at the forefront of immigration and advocacy
- Develop practical skills in immigrant advocacy
- Explore immigration law and practice
- Gain insights into why people migrate
- Transform the legal services experience for migrants and refugees
Founder Pistone reports that some VIISTA students tend to fall in 3 categories: PhD students or college professors who want to learn about immigration law to supplement their own teaching and or research, retiring lawyers who want to spend their retirement years volunteering with immigrant serving organizations, and staff members who work with immigrant communities or in service-learning programs on campus.
Here is a link to the website for more information and registration, immigrantadvocate.villanova.edu. Here is an article about VIISTA from the Chronicle of Higher Education. And here is an article about the critical results of representation from Vera Institute.
Our Immigrant of the Day is Karine Jean-Pierre, who made history in May by becoming the first openly gay woman – and only the second Black woman – to lead a White House press briefing.
FRANCE24 interviewed Deputy Press Secretary Karine Jean-Pierre (44), who often briefs reporters aboard Air Force One and occasionally takes the podium in the briefing room as part of the all-female senior communications team at the White House.
Jean-Pierre was born in Fort-de-France, Martinique, where her Haitian-born parents landed after fleeing the dictatorship of Jean-Claude Duvalier. She spent several years in France as a child before her family settled in the United States, where she was raised in Queens, New York. The daughter of a cab driver and a home healthcare aide, Jean-Pierre has worked on many Democratic campaigns and in grassroots activism.
In her memoir Moving Forward: A Story of Hope, Hard Work, and the Promise of America (2019), she discusses her struggles in early adulthood: She is a survivor of sexual abuse, has suffered depression and attempted suicide. She also chronicles her path from local New York politics to working in the Obama White House.
"Biden Asylum Rule Spurs Criticism, Even From Supporters" by Mike LaSusa considers responses to the Biden administration's proposed asylum rule. The a proposed regulation, issued Aug. 18 by the U.S. Department of Homeland Security and the U.S. Department of Justice, would empower asylum officers to decide asylum applications and other requests for protection from migrants placed in expedited removal proceedings. That would be a change from the current system, which funnels such claims to overwhelmed immigration courts.
According to the report, "[t]he 60-day window for public comment on the proposed regulation saw more than 5,000 submissions, many opposing the rule in its entirety and others offering suggestions for refining it." The article breaks down some of the issues identified in the comments. Here are some of the comments:
- Republican Members of Congress
- United Nations High Commissioner for Refugees
- Federation for American Immigration Reform
- National Association of Immigration Judges
- Legal Aid Society
- American Immigration Lawyers Association
- American Bar Association
Immigration Article of the Day: Refugee Responsibility Sharing or Responsibility Dumping?" by Katerina Linos & Elena Chachko, California Law Review
A silver lining of recent migration crises is increased reliance on responsibility sharing arrangements in international actor responses. This new experience allows for evidence-based analysis of such arrangements. We distinguish between progressive arrangements—ones that shift responsibilities to more affluent, institutionally competent, and safer countries—and regressive arrangements that do the opposite and in fact constitute responsibility dumping.
Focusing on examples from the United Nations, United States and the European Union, we classify different responsibility sharing arrangements as progressive or regressive based on four parameters: hosting commitments, monetary or equivalent contributions, multilateralism and legally binding instruments. The analysis suggests that first safe country arrangements are presumptively regressive, while arrangements that include hosting or material commitments are presumptively progressive. The EU model is a particularly progressive model that ought to spread. We also highlight the importance of assessing refugee policy solutions with a view to broader, systemic implications for host countries, and not just against an individual-focused legal threshold.
Sunday, October 24, 2021
Want some basic facts on immigrants in teh United States? Check this fact sheet out. Here are some basics:
"One in seven U.S. residents is an immigrant, while one in eight residents is a native-born U.S. citizen with at least one immigrant parent.
- In 2019, 44.9 million immigrants (foreign-born individuals) comprised 14 percent of the national population.
- The United States was home to 22.0 million women, 20.4 million men, and 2.5 million children who were immigrants.
- The top countries of origin for immigrants were Mexico (24 percent of immigrants), India (6 percent), China (5 percent), the Philippines (4.5 percent), and El Salvador (3 percent).
- In 2019, 38.3 million people in the United States (12 percent of the country’s population) were native-born Americans who had at least one immigrant parent."
From the American Immigration Council:
As part of the Belonging Begins With Us campaign—which aims to foster a nation where everyone feels that they belong—a group of diverse influencers are sharing their stories of belonging. Here’s what a baker, photographer, mom, and movie buff all have in common.
Advocates say US immigration is rooted in anti-Blackness. Here's how policies puts Black migrants at risk
It is no real surprise that ant-Black sentiment in U.S. social life influences the treatment of Haitian migrants, which has been in the news. Presidents George Bush (the first one) and Bill Clinton employed the extraordinary interdiction policy directed at the Haitians. The Biden administration made the headlines with Haitians chased by horseback on the U.S./Mexico border and then deported in masses.
DeArbea Walker for The Insider looks at how the harsh treatment of Haitian migrants fits into anti-Blackness in U.S. history. The article quotes Professor Alina Das: "From the beginning, race had everything to do with who belonged in the United States and was a significant driver of these concepts of citizenship and immigration."
Immigration Article of the Day: Labor Citizenship for the Twenty-First Century by Michael Sullivan, Seattle Journal for Social Justice
Today, immigrant individuals toiling with their citizen colleagues in insecure employment that Guy Standing describes as the post-industrial precariat make up the vanguard of the struggle to protect labor rights. Government officials have honored care workers as essential service employees in the COVID-19 pandemic even as they continue to lack many basic labor protections. Immigrant care workers on the frontlines in the service and health care sectors face occupational illness and death with minimal safeguards provided by employers. This paper argues that labor movement activists of the immigrant community are motivated beyond their own self-interest. These workers are motivated by the well-being of the mixed-citizenship communities where they have laid down roots. Their exemplary citizenship is exhibited by their willingness to assume the risks that come with labor organizing, including wage losses, termination of employment, and threats of deportation, for the benefit of a mixed citizenship status community of workers. In the process, they are overcoming the racial, gender, occupational, and national origins exclusions of traditional “business unions,” which only recently included immigrants and care workers in their ranks.
Saturday, October 23, 2021
It's Saturday night and time for a new immigration song. Try El Muro (The Wall) by El Tri.
Voy buscando encontrar mi camino (I'm looking to find my way)
Voy buscando una oportunidad (I'm looking for an opportunity)
Se que voy a encontrar mil problemas (I know I'm going to find a thousand problems)
Se que voy a tener que luchar (I know I'm going to have to fight)
Pero vale el esfuerzo la pena (But it's worth the effort)
MacDonough has rejected two attempts by Senate Democrats to establish a path to permanent residency for undocumented immigrants in their reconciliation bill. She has reasoned that the proposals do not comply with a rule requiring measures passed via reconciliation to have a primarily budgetary impact.
The full letter can be found here.
The parent-child relationship is one of the most valued and protected relationships in constitutional and family law. At the same time, the state has custodial power over children: a power that is necessary in some cases to protect vulnerable children from danger, neglect, and abandonment. But because the parent-child bond is so powerful, state actors can be tempted to exploit it for their own purposes. Custodial power over children provides state actors with the means to put pressure on the parent by threatening to remove the child. In these circumstances, the state uses the child as a bargaining chip to be traded for other rights, irrespective of the child’s wellbeing. Misuse of the state’s custodial power is harmful for two main reasons. First, children are harmed when separated from their parents. Second, parents are harmed by the separation because they are forced to choose between the exercise of two fundamental rights: custody of their children and individual liberty.
This Article focuses on the question of how the law should distinguish between the state’s exercise of its custodial powers for permissible grounds, such as to protect the child, and its exercise of custodial powers for impermissible grounds, such as to induce the parent to give up another right. To answer this question, this Article first demonstrates that the state is, in fact, putting pressure on parents by deploying its custodial power. The Article identifies three areas of law—immigration, criminal confessions, and child welfare—in which this occurs. In each of these situations, I argue that consideration of the child’s wellbeing should be a formal legal requirement. The Article then proposes a constitutional test for scrutinizing a state’s separation, or threat of separation, of the parent and child. This test is designed to reveal what I term “impermissible leverage.” The principles articulated in the impermissible leverage test can be incorporated into state and federal statutes, as well as into the regulation of agencies tasked with child removal. The Article concludes with possible remedies when acts of impermissible leverage do occur.
Friday, October 22, 2021
An earlier guest post by law professor Jasmine E. Harris discussed the case of Fraihat et. al. v. US ICE et al, a nationwide class action that challenges the denial of constitutional and statutory rights to people with disabilities in immigrant detention. The complaint alleged that immigrant prisons operated in the face of the pandemic with "deliberate indifference" to the medical needs and health risks of detained persons. On April 20, 2020 the district court in the Central District of California issued a nationwide preliminary injunction ordering USCIS to take a number of steps to protect the medically vulnerable from COVID-19.
On October 20, 2021, a three-judge panel of the Ninth Circuit reversed the district court's grant of the preliminary injunction. A copy of the decision is available here.
Judge Marsha S. Berzon issued a dissenting opinion, concluding: "I am convinced that the district court did not err in determining that circumstances were potentially life-threatening for subclass members; that issuing an injunction would be in the public interest; and that Plaintiffs raised serious questions on the merits of their reckless disregard claim in light of these facts."
Thursday, October 21, 2021
Guest blogger: Alexandra Villalon, law student, University of San Francisco
Living on the Texas-Mexico border is complicated and complex. I used to think that anyone who lives close to the border would abhor the Border Patrol and ICE as 89% of residents of the Texas-Mexico border region identify as Hispanic or Latino. (Texas Health and Human Services, 2017). Many residents are of immigrant families that immigrated across the border and have settled down in cities like McAllen and El Paso. Many may also know of or have family members that are undocumented living with them. Yet, I was mistaken to think that everyone on the border who identifies as Hispanic or Latino thinks the same way. This was evident (but still shocking) when Latinos voted for Trump in 2020. This seemed counterintuitive after Trump’s border wall initiative, family separation policy, and the racist remarks made during Trump’s first term in office. I still did not understand.
And then an article from Texas Monthly popped into my inbox. It was entitled “In El Paso, Joining Border Patrol Offers a Rare Path to Financial Security. But for Some Immigrant Kids, it’s Complicated.” Here, again was a paradox. Why would anyone, much less Gen X kids, want to join the Border Patrol? The same Border Patrol who racially profiles immigrants who have similar backgrounds and look like these kids?
Being a border patrol agent is a job like any other. One can go online to USAJOBS.gov and apply for open positions. The starting salary varies from $49,500-$78,200 for the first year with the opportunity for promotion for each subsequent year. Within four years of service, one can make up to $125,900/year. As of 2016, Latinos make up a little more than 50% of the Border Patrol. Hispanic or Latino border patrol agents make an average of $70,500 compared to the $59,600 that white border patrol agents make. (Zippia, 2021).
Are Latinos in it for the money? Yes, that’s part of it. The Texas Monthly article focuses on the documentary released at Sundance Film Festival earlier this year that follows El Paso’s Horizon High School’s criminal justice club members and their trek to entering the Border Patrol or other law enforcement agencies. The criminal justice club prepares high school students for a career in law enforcement: students practice active shooter drills, hold fake guns, wear tactical gear and learn how to execute search warrants. There’s even an annual UIL “Border Challenge” competition where top high school law enforcement programs compete in real world law enforcement scenarios like felony stop, burglary in progress, hostage negotiation, and active shooter. Students know that a job in law enforcement is “one of only three career fields in El Paso with wages comparable to national averages.” (Texas Monthly, 2021). El Paso’s median household income is $14,000 less per year and 22% of El Pasoans lacked health coverage in 2018. So, a career in law enforcement is appealing across the board. It provides great benefits, doesn’t require moving far from home for those who wish to support their family, and has a great starting salary.
How do the students grapple with potentially arresting their own ethnic group or even a family member? Most, if not all the students in the documentary who want to enter law enforcement are bought into the idea that border patrol agents are here to protect public safety. The job summary outlining the duties for a border patrol agent states that the DHS “is calling on those who want to help protect American interests and secure our Nation.” These students don’t think they’re doing any wrong, which they are not. They are applying to a legal job and enforcing the law of the country they are a citizen of.
Children of Latino immigrants also want to do right by their immigrant parents. Many have seen first-hand what it takes to survive in the United States and how their parents worked hard to provide for their family. Latino children, especially as they get older, want to make their parents proud and show them that what their parents have done for them all their lives was not in vain. How they show that is through a well-paying job.
I can’t fault these high school students for wanting to do better for themselves and their families. It’s sad to know that their only option, it seems like, is to enter the field of law enforcement and be on the side “against immigrants,” those immigrants could have been their parents!
But those are the nuances and complexities that have developed from immigration enforcement in the United States.
The Administrative Law Review is hosting a virtual symposium on October 29, 2021 that will explore important questions about the role of administrative law in detention and imprisonment. More info here. Register here.
Many immigration law professors were hopeful that the election of Joe Biden would bring changes in many Trump era immigration policies. Law professors Sarah Sherman-Stokes and Lindsay M. Harris for Bloomberg are not keen on the Biden administration's continuation of the Trump administration's Title 42 policy. Here is the gist:
"When it comes to U.S. border policy, President Biden touted changes from the Trump administration, but so far, he has adopted as his own one of the very worst Trump-era policies—Title 42 expulsions based on public health concerns, say immigration and asylum law experts and law professors Sarah Sherman-Stokes and Lindsay M. Harris."
Newly obtained United States government documents detail over 160 internal reports of misconduct and abuse of asylum seekers at the hands of U.S. officials, Human Rights Watch said in a report released today. The documents report abuse by Customs and Border Protection officers, Border Patrol agents, and Immigration and Customs Enforcement officials, primarily between 2016 and 2021.
The 26-page report, “‘They Treat You Like You Are Worthless’: Internal DHS Reports of Abuses by US Border Officials,” details internal reports made by asylum officers within U.S. Citizenship and Immigration Services about the conduct of personnel in the immigration enforcement arms of their same parent agency, the Department of Homeland Security. Though heavily redacted, the reports, which Human Rights Watch obtained after litigation under the Freedom of Information Act, include allegations of physical, sexual, and verbal abuse, due process violations, harsh detention conditions, denial of medical care, and discriminatory treatment at or near the border.