Tuesday, November 30, 2021
Guest blogger: Justin Colón, law student, University of San Francisco:
At the onset of the pandemic, the Trump Administration (through the CDC) authorized US Customs and Border Protection to immediately remove anyone entering the country (without having to follow the usual process required for removal) in order to prevent the spread of COVID. These Title 42 removals could occur even if the removed individual had a valid asylum, humanitarian, or other claims for entry into the US. Thus, Title 42 has been used to sidestep the usual removal and asylum process contained in the INA. While the CDC order regarding Title 42 does not apply to  Prior the use of Title 42, migrants who attempted to enter at the border would either be subject to a Credible Fear Interview if seeking asylum or, if they successfully entered without inspection, would receive a formal notice of deportation/removal. Instead, BP agents would take migrant’s biometric information and perform a health check for COVID symptoms before the migrant is removed to their country of origin. Despite Title 42’s ostensibly public health justification, experts at the CDC stated that the new removal policy would actually do little to limit the spread of COVID. As with most immigration policies, migrants from Mexico and Central America were those primarily affected.What exactly is Title 42? Title 42 authorizes the Surgeon General (now the CDC), acting in accordance with regulations approved by the President, to prohibit, in part or whole, the entry of any person into the US in order to prevent the spread of communicable disease. Originally enacted in 1944, Title 42 was rarely used until the COVID-19 pandemic for obvious reasons. While on its face, the use of Title 42 to prohibit entry into the US ostensibly reads as sound policy, the reality is, as always, much more complicated.
One of Biden’s many campaign promises was to end the various draconic Trump-era immigration policies. The Biden Administration’s commitment to this promise (or lack thereof) is best reflected by the continued use of Title 42 to remove migrants at the border, stating that it is “necessary to limit the spread of the coronavirus.” The numbers of migrants expelled under Title 42 are alarming—in the 2021 fiscal year among the more than 1.7 million people detained by BP, 61% were expelled under Title 42. While the original Title 42 order has been amended several times the order remains largely the same as previous orders under the Trump Administration. Perhaps the most concerning issue is the potential to use Title 42 to remove lawful permanent residents and even citizens. Courts have noted that the power the government claims under Title 42 as “breathtaking broad” and circumvents Congress’s plenary power to remove non-citizens. Here, the public health justifications for continued use of Title 42 to deny entry and remove migrants at the border is not supported by the science and politically motivated. Most public health experts agree that is the unvaccinated—and not migrants entering into the US—that are driving the rise in new COVID infections. The continued use of Title 42 fuels the rhetoric that migrants are the cause for new infections and in an era of hype-partisanship is detrimental to comprehensive immigration reform and policy.
With the constant threat of new coronavirus variants and no end in sight to the ongoing pandemic, the continued use of Title 42 to ostensibly protect “public health” has the potential to dramatically shape immigration policies going forward. Public health policy must reflect scientific data and not be fueled by political rhetoric. Title 42 prevents those with valid asylum claims or humanitarian claims form seeking those forms of relief. This flies in the face of the current administrations claim that the Title 42 restrictions protect the migrants themselves—many of those fleeing persecution will be returned to the very source of their prosecution. How this protects migrants is a mystery to me. The Biden Administration needs to honor its promise to those seeking entry into the US, many of whom have valid asylum claims, and stop the use of Title 42 removals.
 42 U.S.C. § 265
 A Guide to Title 42 Expulsions at the Border – Fact Sheet, AMERICAN IMMIGRATION COUNCIL (Oct. 15, 2021).
 Most importantly, under the current administration’s interpretation, unaccompanied minors are exempt from a Title 42 removal. Parents traveling with their children and single adults are still blocked from entering the country.
 See Final Rule, 85 Fed. Reg. at 56,448
 See P.J.E.S. by and through Escobar Francisco v. Wolf, 502 F.Supp.3d 492 at 539 (D.D.C 2020), (granting injunction to class of plaintiffs, consisting of unaccompanied minors, which enjoined the government from expelling the class members from Title 42 expulsion.)
 See Anika Baskter, MD, et.al, Letter to CDC Director Walensky, HHS Secretary Becerra, and DHS Secretary Mayorkas on the August 2021 Title 42 Order (Sept. 1, 2021); See also Dr. Anthony Fauci Oct. 3 CNN interview (“My feeling [on Title 42] has always been that focusing on immigrants, expelling them … is not the solution to an outbreak.”)
Guest Post by Minyao Wang, Esq.
I highly recommend the Netflix documentary “Found.” It does an outstanding job of raising complex questions about identity, inclusion, representation and tracing one’s roots in the context of transracial adoption. The film opens with a Jewish-American family from Seattle celebrating the bat mitzvah of their daughter. The teenager, Chloe Lipitz, was adopted from China when she was 15 months old. Chloe soon discovers via genetic testing that she has two biological cousins, Sadie Mangelsdorf of Nashville and Lily Bolka of Oklahoma City, who have also been separately adopted by Americans in the mid-2000s. The cousins’ improbable arrivals in the United States can be traced to China’s one-child policy which has been enforced with the brutality that only a totalitarian system can muster. State-sponsored coercion, including the frequent use of physical violence, combined with the country’s deep poverty and traditional preference for boys, has forced many Chinese parents to abandon their newly-born baby girls in public places. The Chinese government scoops up the foundlings and “off-loads” the healthier ones to foreign families in exchange for a “donation.” From 1999 to 2016, almost 300,000 Chinese babies were adopted by parents from the wealthy democracies; about 1/3 of them ended up in the U.S.
With financial and emotional support from their adoptive parents, the three cousins in “Found” launch a journey to learn more about the facts of their birth and subsequent abandonment. They hire an English-speaking researcher based in Beijing, Liu Hao, as their eyes and ears on the ground. Ms. Liu is only a few years older than her clients. It does not take much to locate candidates who could be the cousins’ biological parents, based on when and where they abandoned their baby girls years ago in a town situated 150 miles northwest of Hong Kong. Ms. Liu takes their saliva samples to see if there is a genetic match (no spoilers here!). Adding to the dystopian theme, Ms. Liu discloses on camera that as a baby she too was almost abandoned by her parents. As for Chole, Sadie and Lily, their bewilderment while in China is palpable. For them, visiting China is like walking into a parallel universe--the very different lives that would have been theirs had there been no adoption. Tell-tale signs of a chronic food shortage are everywhere. In the land of their birth, the comfortable American middle-class life that they each enjoy is simply unimaginable.
The adoption of Chinese baby girls by American families is one direct U.S. immigration consequence of China’s draconian family planning program. Another consequence is the amendment by Congress in 1996 of the refugee definition to provide asylum protection to Chinese parents who have been forced by their government to undergo an abortion or sterilization (that is worthy of a separate post in the future!).
A coalition of 24 state attorneys general led by California Attorney General Rob Bonta filed comments in support of DACA. "While congressional action is needed to permanently address the treatment of individuals who arrived in the United States as children, have grown up and gone to school here, and know only the United States as home, the proposed rule is an important step to address the pressing needs of grantees, their families, their communities, and their states pending such legislation," the attorneys general wrote. Representing states including New York, New Jersey, Connecticut, Illinois, Massachusetts and Washington, D.C., the comments touted the benefits afforded the states by DACA recipients. A copy of the comment letter is available here.
Beginning in the Trump administration, reports of caravans of migrants from the South have regularly (for example, here and here) made the news. With caravan reports so consistently in the news and with so little ultimately coming of them, it is difficult to know whether the caravan reports should be of much concern to Americans or, for that matter, in the news.
Jose Luis Gonzalez for Reuters reports offers the latest caravan report:
"Some 2,000 migrants and asylum seekers departed the southern Mexican city of Tapachula near the Guatemalan border overnight on Sunday in the latest in a series of caravans setting out for the United States. . . . The majority of its members were families from Central America and the Caribbean fleeing violence, poverty and growing hunger crises in their home countries. . . . For months, migrants and human rights advocates have denounced the `prison-like' conditions in Tapachula. Under Mexican rules, migrants must wait to process their claims - often for months - before being able to relocate to other parts of the country without fear of deportation. . . . Last week, the Mexican government transported hundreds of migrants from Tapachula to other states in efforts to head off the formation of more caravans. But tens of thousands of migrants still remain in the city."
As the latest Mexican government response to migrants suggests, it has been cooperating with the United States on immigration enforcement. The U.S. government has sought Mexico to attempt to reduce migration from the South.
The 2021 film Under the Heavens is described by IMDb as follows: "Marta, a young Venezuelan mother, is immigrating to Brazil when she meets a struggling young couple with a baby girl. Her ability to breastfeed causes their fates to become forever entwined."
A review in the New Yorker describes the film as ”address[ing] the larger humanitarian crisis in Venezuela, but in a subtle way."
Monday, November 29, 2021
Celtics player Enes Kanter, now Enes Kanter Freedom, became a naturalized U.S. citizen today. (He also changed his name!) Freedom was born in Switzerland and was raised in Turkey. He's been outspoken critic of Turkey as we've noted on the blog before (here, here).
The December 7, 2021 issue of The New Yorker has an article by Ian Urbina titled "The Secretive Prisons That Keep Migrants Out of Europe" that is definitely of interest to those studying migration and detention. Urbina writes: "Tired of migrants arriving from Africa, the E.U. has created a shadow immigration system that captures them before they reach its shores, and sends them to brutal Libyan detention centers run by militias." This in-depth article is published in collaboration with The Outlaw Ocean Project.
The online version is available here.
The Associated Press reported on he "frantic search for a flimsy migrant craft that foundered in the English Channel, killing at least 27."
France and Britain have appealed for European assistance, promised increased efforts to combat human smuggling networks.
British Prime Minister Boris Johnson sent French President Emmanuel Macron and the European Union leadership a letter proposing joint sea, air and land patrols. France has resisted the idea. Johnson also proposed an agreement allowing Britain to send back migrants to France. Macron appealed to neighboring European countries to do more to stop illegal migration into France.
Tensions between France and the UK on the issue are evident.
France is deploying army drones as part of stepped-up efforts to patrol its northern coastline and help rescue migrants at sea. But President Macron also said that a greater collective effort is needed, referring to France as a “transit country” for Britain-bound migrants. “We need to strengthen cooperation with Belgium, the Netherlands, Germany, but also the British and the (European) Commission,” he said on a visit to Croatia. “We need stronger European cooperation.”
Ministers from France, Germany, the Netherlands, Belgium and Britain and EU officials were scheduled to meet yesterday to discuss increasing efforts to crack down on human smuggling networks. In light of the tense communications between France and the UK, the British minister reportedly was uninvited to the meeting.
Welcome back travel restrictions! The United States has restricted restrict travel from South Africa and seven other countries as a new COVID variant emerges.
UPDATE (Nov. 29, 2;45 P.M. PST): Presidential Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting Coronavirus. Click here for the Proclamation. In it President Biden proclaims that
"Given the recommendation of the CDC, working in close coordination with the Department of Homeland Security, described above, I have determined that it is in the interests of the United States to take action to suspend and restrict the entry into the United States, as immigrants and nonimmigrants, of noncitizens of the United States (“noncitizens”) who were physically present within the Republic of Botswana, the Kingdom of Eswatini, the Kingdom of Lesotho, the Republic of Malawi, the Republic of Mozambique, the Republic of Namibia, the Republic of South Africa, and the Republic of Zimbabwe during the 14-day period preceding their entry or attempted entry into the United States."
"Soledad tells the story of a young woman from Central America who was imprisoned in the Eloy Detention Facility when she sought asylum in the United States in 2017. Soledad set out on a perilous journey from her homeland after enduring horrific persecution where she was kidnapped, sex-trafficked, tortured and nearly killed.
Attorney Shefali Milczarek-Desai, who took the case pro bono, mobilized a dream team of professional women, all of whom agreed to work for free on the case. Together, they secured Soledad's release from Eloy and ultimately prevailed on her asylum claim in a rare victory for an asylum seeker in the U.S."
Click the link above for details.
Sunday, November 28, 2021
"The whole situation is something that most people don't really know even exists: that it's possible for an immigrant child to be brought here legally, do all their education here, but still not have a chance to become an American."
The Angel Island Immigration Station Foundation maintains a wonderful website cataloging the poetry left by detainees on the detention barrack walls. There are so many moving pieces. Here's one that really spoke to me:
Sitting alone in the customs office,
How could my heart not ache?
Had my family not been poor,
I would not have traveled far away from home.
It was my elder brother who urged me
To embark on a voyage to this shore.
The black devil here is unjust-
He forces the Chinese to clean the floor.
Two meals a day are provided,
But I wonder, when will I be homeward bound?
Lee from Toishan District, September 4, 1911
On the website, you can listen to the poem, read in the original Toishanese.
Saturday, November 27, 2021
The Leavers by Lisa Ko has an enticing premise:
One morning, Deming Guo’s mother, Polly, an undocumented Chinese immigrant, goes to her job at a nail salon—and never comes home. No one can find any trace of her.
With his mother gone, eleven-year-old Deming is left mystified and bereft. Eventually adopted by a pair of well-meaning white professors, Deming is moved from the Bronx to a small town upstate and renamed Daniel Wilkinson. But far from all he’s ever known, Daniel struggles to reconcile his adoptive parents’ desire that he assimilate with his memories of his mother and the community he left behind.
Told from the perspective of both Daniel—as he grows into a directionless young man—and Polly, Ko’s novel gives us one of fiction’s most singular mothers. Loving and selfish, determined and frightened, Polly is forced to make one heartwrenching choice after another.
Set in New York and China, The Leavers is a vivid examination of borders and belonging. It’s a moving story of how a boy comes into his own when everything he loves is taken away, and how a mother learns to live with the mistakes of the past.
I've read and recommended Lisa Ko's writing before -- her article on food and the immigrant experience was fascinating.
Also, can we talk about the prescience of this novel? It was written in 2017. Yet the disappearance of a nail salon worker really brings to mind the 2021 violence against salon workers in Georgia.
Friday, November 26, 2021
The Immigration Article of the Day is Women of Color in Immigration Enforcement by Kit Johnson, available on SSRN and published in 21 Nevada Law Journal 997 (2021).
Here is the abstract:
Immigration enforcement agencies are among the most racially diverse in federal law enforcement. More than half of all women holding law enforcement positions within immigration agencies are minorities, though the overall number of female agents is relatively small.
This Essay focuses on women of color in immigration enforcement. It begins with a necessary primer on immigration enforcement. Next, it traces key developments that led to the diversification of immigration enforcement, including analysis of never before published data about the racial and gender diversity of immigration agents. Then, it considers the unique benefits of hiring women of color as enforcement agents and notes barriers to the recruitment and retention of women of color by immigration enforcement agencies.
This Essay is largely descriptive, offering a picture of immigration enforcement and the role that women of color play in it. My hope is that this Essay will serve as a jumping-off point for empirical research regarding a before-now understudied segment of the immigration enforcement workforce.
Santa can leave this novel under the tree for me this year: American Street by Ibi Zoboi. Gotta love the cross-promotional work of her publisher: "perfect for fans of Nicola Yoon." Careful readers (with long memories) know that I am.
Here's the premise:
In this stunning debut novel, Pushcart-nominated author Ibi Zoboi draws on her own experience as a young Haitian immigrant, infusing this lyrical exploration of America with magical realism and vodou culture.
On the corner of American Street and Joy Road, Fabiola Toussaint thought she would finally find une belle vie—a good life.
But after they leave Port-au-Prince, Haiti, Fabiola’s mother is detained by U.S. immigration, leaving Fabiola to navigate her loud American cousins, Chantal, Donna, and Princess; the grittiness of Detroit’s west side; a new school; and a surprising romance, all on her own.
Just as she finds her footing in this strange new world, a dangerous proposition presents itself, and Fabiola soon realizes that freedom comes at a cost. Trapped at the crossroads of an impossible choice, will she pay the price for the American dream?
Thursday, November 25, 2021
Migration Policy Institute PI Issues Latest Data Profiles of Unauthorized Immigrants and Offers Estimates of Legalization
The Migration Policy Institute (MPI) today released its latest socio-demographic data profiles of unauthorized immigrants for the United States, 41 states and the District of Columbia, as well as the 130 counties with the largest unauthorized populations.
The profiles, based on MPI’s unique methodology to assign legal status onto the U.S. Census Bureau’s American Community Survey (ACS), offer 2019 data for areas ranging from population size, countries of origin and years of U.S. residence to educational enrollment and attainment, home ownership, top industries of employment, health insurance coverage and poverty levels. The profiles also include estimates on age, gender, parental and marital status, top languages spoken and labor force participation for the nation’s estimated 11 million unauthorized immigrants.
A related interactive map allows users to see the top U.S. destinations for unauthorized immigrants by top country and region of origin.
Mexicans continued to account for just under half of all unauthorized immigrants in the United States—48 percent in 2019. Mexico and Central America, combined, remain by far the greatest source region for unauthorized immigrants—with 67 percent of the total—while Asia ranks second with 15 percent. South Americans represent a relatively small but rapidly growing group, at 8 percent of the overall unauthorized population, with numbers increasing particularly for Venezuelans.
South American unauthorized immigrants are highly concentrated in Florida—particularly the South Florida counties of Miami-Dade, Broward and Palm Beach—as well as in the Northeast: New York City, Connecticut and Massachusetts. Established South American communities in these locations may be growing rapidly given the increased number of encounters of South Americans at the U.S.-Mexico border since 2019.
Aside from these newer, expanding groups, the unauthorized population is generally well settled, with 63 percent having resided in the United States for 10 years or more, including 22 percent who have 20 years or more of U.S. residence.
Even as unauthorized immigrants have become more dispersed across the country, they remain concentrated in traditional destination states. In 2019, one-quarter of the unauthorized population lived in California, and nearly half lived in either California, Texas or New York. At the local level, one-fifth of them resided in the counties where four major cities—Los Angeles, New York, Houston and Chicago—are located.
About 1.3 million unauthorized immigrants were married to U.S. citizens and another 654,000 were married to lawful permanent residents (LPRs) in 2019. At the same time, 4.7 million U.S.-citizen children had at least one unauthorized immigrant parent, as did 61,000 LPR or nonimmigrant children.
MPI researchers estimate that immigration-related provisions within the Build Back Better Act that passed the House on Nov. 19 and is now before the Senate could provide work authorization and protection from deportation to nearly 7.2 million unauthorized immigrants who have been in the United States since January 1, 2011.
Among the nearly 7.2 million unauthorized immigrants who MPI estimates could benefit under the House-passed legislation are 2.6 million DREAMers—people who entered the United States before age 18.
For the unauthorized data profiles at U.S., state and county levels, visit here.
For a map of top destinations for unauthorized immigrants by country or region of origin, visit here.
For a data tool on the DACA eligible and status holders, check out here.
This 2019 article by Petula Dvorak for The Longview News Journal is the perfect Thanksgiving read: For immigrant families, Thanksgiving blends the old and the new. How very American.
"It is important, the meal. Because, for many immigrants, there were no cousins and grandparents and aunts nearby, no gathering after dinner to watch football."
And, even more important: Thanksgiving is "nonreligious, nonpolitical — hopefully — and like America, adaptable."
The article is ripe with food stories from the Czech Republic to Vietnam. You'll be inspired to add some new dishes to the table inspired by your own immigrant roots.
Wednesday, November 24, 2021
"The so-called Title 42 border closure, which uses the COVID-19 pandemic to justify immediate expulsion or deportation of people fleeing persecution and torture, has always been heartless and illegal. So why is the Biden administration indefinitely continuing this most egregious and unlawful of Trump’s immigration policies? Recent reports confirm that it’s in part because the White House doesn’t want the political repercussions of ending it.
That craven position would be a flimsy defense in court. It’s also simply bad politics."
Hey all you immigration nerds out there, this podcast is for you!
Ian Gaines is host of the Immigration Nerds Podcast that covers all things immigration. He has featured on the show many members of our immprof community, including Jennifer M. Chacón and Stephen Yale-Loehr. In the latest podcast, Rose Cahn of the Immigration Legal Resource Center discusses post-conviction relief for immigrants.
Definitely a great podcast to add to your library, or suggest to students interested in learning more about a whole range of topics.
The New York City Council is reviewing a plan to allow certain noncitizens to vote in local elections. If approved, the proposal will allow lawful permanent residents and others with legal permission to work to vote. The New York Times estimates that approximately 808,000 residents, the majority of whom are from the Dominican Republic and China, would be allowed to vote if the measure passes.
New York City's incoming Mayor Eric Adams has supported the proposal, while Mayor Bill de Blasio has not been as supportive but has signaled that he will not veto it if it passes on December 9.
As we have posted here, the question of whether noncitizens should be allowed to vote in local elections has gained increasing attention in recent years. New York City would be the largest municipality to take the step to allow noncitizen voting.