Friday, October 15, 2021
Ali Noorani from the National Immigration Forum shared this news in an e-mail blast earlier today:
"First the good news: The Biden administration has suspended its use of a Trump-era policy that allows for arrest and rapid deportation without an immigration hearing, reports Hamed Aleaziz of Buzzfeed News. The expanded expedited removal policy applied nationwide, rather than close to the border only, and "anyone who could not prove that they had lived in the U.S. for longer than two years" was at risk. Now the not so good news: Data underscore the lack of due process for immigrants expelled under the pandemic-era Title 42, as Camilo Montoya-Galvez of CBS News reports. There have been 1,163,000 expulsions under the policy — and only 3,217 migrants referred to asylum officers for interviews. `Migrants are being prevented from exercising a basic human right, which is to apply for asylum," said Michael Knowles, president of a union that represents hundreds of U.S. government asylum and refugee officers.'"
Jeanne Batlova for Migration Policy Institute in Afghan Immigrants in the United States includes information on Afghan immigrants in the U.S. "The dramatic evacuation from Afghanistan may bring more than 50,000 new Afghan immigrants to the United States, according to government predictions. These new arrivals would join a small but growing population of Afghans in the United States, most of whom have arrived since 2010. This article provides insights into this immigrant group, many of whom arrived on the Special Immigrant Visa."
Figure 1. Afghan Immigrant Population in the United States, 1980-2019
A special issue of IOM's Migration Policy Practice Journal on children in the current Central America– Mexico–United States context identifies critical blind spots on child-related migration data. It urges readers to look beyond cyclical trends, to instead identify underlying and pressing policy and practice issues that have remained unattended or ignored by past United States administrations, and that are at risk to remain so unless we collectively – and critically – examine our understandings of child migration.
2. Gabriella Sanchez on why the securitized focus on organized crime in irregular migration hides the serious risks children face as migrants and as smuggling facilitators;
3. Yaatsil Guevara González & Alexandra Leston on how asylum may not be the outcome migrant children expect while in Mexico;
4. Lauren Heidbrink, Ph.D. & Amelia Frank-Vitale on the perils of development aid;
6. Caitlyn Yates critical work on racism and discrimination of Asian, African and Afro-descendant migrant children.
The special issue can be accessed here. Questions can be directed to Gabriella Sanchez.
MHC (h/t Jaya Ramji-Nogales)
Margaret Kwoka of Ohio State University Moritz College of Law has just published a new book titled Saving the Freedom of Information Act.
Enacted in 1966, The Freedom of Information Act (or FOIA) was designed to promote oversight of governmental activities, under the notion that most users would be journalists. Today, however, FOIA is largely used for purposes other than fostering democratic accountability. Instead, most requesters are either individuals seeking their own files, businesses using FOIA as part of commercial enterprises, or others with idiosyncratic purposes like political opposition research. In this sweeping, empirical study, Margaret Kwoka documents how agencies have responded to the large volume of non-oversight requesters by creating new processes, systems, and specialists, which in turn has had a deleterious impact on journalists and the media. To address this problem, Kwoka proposes a series of structural solutions aimed at shrinking FOIA to re-center its oversight purposes.
Amanda Robert for the ABA Journal reports on great opportunities being provided to college and law students by the ABA Commission on Immigration’s Detention and Legal Orientation Program Information Line. Student interns help with calls from immigrants and refugees who are detained in more than 200 facilities across the country. They also help pull together information that the detained noncitizens need for their cases, such as how to apply for asylum or how to appeal a denial of asylum. These services are free for detainees who reach the information line.
Official White House Photo
Immigration and President Trump remain in the news even though Trump is no longer in office. The latest is that a New York judge has ordered former President Trump to give a videotaped deposition next week in a lawsuit brought by a group of protesters who claim that Trump and his security team assaulted them during a 2015 rally.
Bronx state Supreme Court judge Doris Gonzalez has ordered the ex-President Trump to appear for a deposition on October 18.
The lawsuit by several protesters names Trump, the Trump Organization, his former head of security Keith Schiller and four unnamed members of Trump’s security team. The lawsuit stems from a Sept. 3, 2015, protest outside Trump Tower over the then-presidential candidate’s inflammatory comments about Mexican immigrants.
Despite deportation’s devastating effects, the Immigration and Nationality Act (INA) specifies deportation as the penalty for nearly every immigration law violation. Critics have regularly decried the INA’s lack of proportionality, contending that the penalty often does not fit the offense. The immigration bureaucracy’s implementation of the INA, however, involves a spectrum of penalties short of deportation. Using tools such as administrative closure, orders of supervision, and deferred action, agency bureaucrats decide whom to deport and who stays, and on what terms, on a purely ad hoc basis. In this so-called shadow system, immigrants, their advocates, and the broader public lack basic information about what penalties are being imposed and why.
This Article argues for reframing the problem of immigration law’s disproportionality as a problem of insufficient justification, one remediable only by building the infrastructure for reason-giving in the immigration bureaucracy. Deportation strikes many as disproportionate because the government often lacks satisfactory reasons for imposing such a drastic penalty. But in the system of shadow sanctions today, the government not only fails to offer good reasons: it fails to offer any at all. As a result, the system of shadow sanctions represents a classic case of an arbitrary exercise of government power. Looking to examples of procedural innovation across the administrative state, this Article backs prudential reforms to create immigration law’s missing reason-giving infrastructure. With it in place, the public can demand better reasons, or proportionality. But the first step is addressing immigration law’s arbitrariness problem.
Thursday, October 14, 2021
Beautiful Country is a memoir written by Qian Julie Wang. Here's the publisher's pitch:
In Chinese, the word for America, Mei Guo, translates directly to “beautiful country.” Yet when seven-year-old Qian arrives in New York City in 1994 full of curiosity, she is overwhelmed by crushing fear and scarcity. In China, Qian’s parents were professors; in America, her family is “illegal” and it will require all the determination and small joys they can muster to survive.
In Chinatown, Qian’s parents labor in sweatshops. Instead of laughing at her jokes, they fight constantly, taking out the stress of their new life on one another. Shunned by her classmates and teachers for her limited English, Qian takes refuge in the library and masters the language through books, coming to think of The Berenstain Bears as her first American friends. And where there is delight to be found, Qian relishes it: her first bite of gloriously greasy pizza, weekly “shopping days,” when Qian finds small treasures in the trash lining Brooklyn’s streets, and a magical Christmas visit to Rockefeller Center—confirmation that the New York City she saw in movies does exist after all.
But then Qian’s headstrong Ma Ma collapses, revealing an illness that she has kept secret for months for fear of the cost and scrutiny of a doctor’s visit. As Ba Ba retreats further inward, Qian has little to hold onto beyond his constant refrain: Whatever happens, say that you were born here, that you’ve always lived here.
Inhabiting her childhood perspective with exquisite lyric clarity and unforgettable charm and strength, Qian Julie Wang has penned an essential American story about a family fracturing under the weight of invisibility, and a girl coming of age in the shadows, who never stops seeking the light.
Here's a conversation with the author on NPR:
It has been back to the drawing board for Democrats on immigration reform as the Senate parliamentarian has nixed efforts to include big reforms in the budget reconciliation process. Along with many news reports on the latest plan for reform, Alan Fram for the Associated Press reports that Democrats in the U.S. Senate may propose that the government exercise its existing parole power to allow noncitizens to remain temporarily in the United States:
"The idea is being advanced as President Biden and party leaders labor to resolve disputes and win the near-unanimous Democratic support they will need to move the giant social and environment package through the narrowly divided Congress. The massive legislation has been bogged down for months amid internal fights over the measure’s ultimate price tag and the initiatives it will include."
Under the proposal, parole could be granted to those here since 2011 for five years and could be renewed for another five years.
Immigration Article of the Day: Are People in Federal Territories Part of “We the People of the United States”? by Gary Lawson and Guy I. Seidman
Are People in Federal Territories Part of “We the People of the United States”? by Gary Lawson and Guy I. Seidman
9 Texas A&M Law Review (forthcoming 2022)
In 1820, a unanimous Supreme Court proclaimed: “The United States is the name given to our great republic, which is composed of states and territories.” While that key point is simple, and perhaps even obvious, the constitutional implications of such a construction of “the United States” as including federal territories are potentially far reaching. In particular, the Constitution’s Preamble announces that the Constitution is authored by “We the People of the United States” and that the document is designed to “secure the Blessings of Liberty” to the author and its “Posterity.” If inhabitants of federal territory are among “We the People of the United States,” then federal actors owe them (and their “Posterity”) the same fiduciary duties owed to people in the States. There is no definitive answer as a matter of original meaning as to the scope of “We the People of the United States,” but the presumptive meaning of “the United States” in 1788 included federal territory, so the presumptive meaning of “the People of the United States” would similarly include people in federal territory. While there are strong textual and contextual arguments for excluding territorial inhabitants from “We the People,” there are also countervailing textual and contextual arguments for their inclusion. In the end, the answer may depend on something beyond the reach of interpretative theory: How strong is the presumption in favor of inclusion that can be drawn from pre-1788 understandings and practices? If territorial inhabitants are indeed among “We the People of the United States,” then federal action towards the territories must conform to fiduciary norms, including the key norm of impartiality with respect to multiple beneficiaries, which would require very strong reasons for disfavoring territorial inhabitants in comparison to state inhabitants.
Wednesday, October 13, 2021
A recent article by Seattle Times staff reporter Esmy Jimenez highlights the role of mental health evaluations in immigration proceedings. As the author explains,
For some people in immigration proceedings, a psychosocial assessment or evaluation is that key document. In many cases, it can help verify someone’s story in the absence of physical evidence, showing immigration officials why someone is in need of a new home country, whether it’s an undocumented mother from Honduras filing for asylum or a victim of torture fleeing from the Philippines.
The article features Henry Hwang, the directing attorney at the Northwest Immigrant Rights Project who explains how courts rely on mental health evaluations in analyzing trauma and related aspects of asylum and other types of cases. It also cites to a study published in the Journal of Immigrant and Minority Health that found that 89% of asylum cases that had mental health evaluations were successful.
From the Bookshelves: Mexican American Civil Rights in Texas: Latinos in the United States (Robert Brischetto and J. Richard Avena, editors)
Inspired by a 1968 U.S. Commission on Civil Rights six-day hearing in San Antonio that introduced the Mexican American people to the rest of the nation, this book is an examination of the social change of Mexican Americans of Texas over the past half century. The San Antonio hearing included 1,502 pages of testimony, given by more than seventy witnesses, which became the baseline twenty experts used to launch their research on Mexican American civil rights issues during the following fifty years. These experts explored the changes in demographics and policies with regard to immigration, voting rights, education, employment, economic security, housing, health, and criminal justice. While there are a number of anecdotal historical accounts of Mexican Americans in Texas, this book adds an evidence-based examination of racial and ethnic inequalities and changes over the past half century. The contributors trace the litigation on behalf of Latinos and other minorities in state and federal courts and the legislative changes that followed, offering public policy recommendations for the future. The fact that this study is grounded in Texas is significant, as it was the birthplace of a majority of Chicano civil rights efforts and is at the heart of Mexican American growth and talent, producing the first Mexican American in Congress, the first Mexican American federal judge, and the first Mexican American candidate for president. As the largest ethnic group in the state, Latinos will continue to play a major role in the future of Texas.
A few weeks ago, the Biden administration announced that it would lift its restrictions on non-essential travel from tourists coming overseas. They are now lifting similar travel restrictions on the US and Canada borders.
The lifted restrictions represent a new phase of reopening in the ongoing effort to curb the spread of COVID-19. Whether it represents a new phase in other border restrictions remains to be seen.
The Biden administration has urged a D.C. federal judge to uphold a Trump-era policy to award H-1B specialty occupation visas by salary rather than by lottery, saying the policy is procedurally valid and consistent with the Immigration and Nationality Act. The argument was made in a summary judgment motion (read on Law360).
In the closing months of the Trump administration, the Department of Labor (DOL) proposed a rule that would assign H-1B visas based on wages, as opposed to the current lottery system. The DOL rule would have raised the lowest possible wages that companies could have offered for workers on the H-1B, H-1B1, and E3 visas. The goal, added a DOL press release at the time, was to “improve the accuracy of prevailing wages paid to foreign workers by bringing them in line with the wages paid to similarly employed U.S. workers.” A few months after Biden took office, the DOL sought public input on fair H-1B wage levels, indicating that the concept was still alive in the halls of government, although it delayed implementation of the actual Trump-era rule until November 2022.
Although the Biden administration seemed interested in continuing some version of the plan, several lawsuits enjoined the rule. It was unclear whether it would continue into a new administration (Biden's proposed Citizenship Act of 2021 favors a wage-based H1-B and DOL sought public input on fair H-1B wage levels,). For more background on the H1-B and the system of awarding the visas by salary rather than by lottery, see writings by Stuart Anderson in Forbes.
Migrants and refugees caught up in Belarus-EU "hybrid warfare" are freezing to death in no man's land
CBS News reports that
"As you approach the Poland's border with Belarus, an automatically-generated text message pops up on your cell phone. It warns any refugees to turn around. `The Polish border is sealed. Belarussian authorities told you lies. Go back to Minsk!' reads the advisory, adding: `Don't take any pills from Belarusian soldiers.'"
In the last few months, more than 10,000 migrants have tried to cross from Belarus into Poland — an entry point to the European Union. The migrants are mainly from Iraq and Syria, but they also come from Africa and even as far away as Cuba. At least five of them have reportedly died in the last few weeks due to the conditions in the frozen swampland and forests between the two countries.
Amy Howe for SCOTUSBlog looks at the upcoming oral argument in the Boston Marathon bomber case. Next week, "the Supreme Court will hear the United States’ effort to reinstate the death penalty for Dzhokhar Tsarnaev, who was convicted for his role in the 2013 bombings at the finish line of the marathon." An asylee, Tsarnaev is a naturalized U.S. citizen.
UPDATE (Oct. 13, 2:45 PST): Howe guessed from oral argument that a majority of the Justices supported reinstituting the death penalty, which the First Circuit had set aside.
Immigration Article of the Day: "Discretion and Disobedience in the Chinese Exclusion Era" by Shoba Sivaprasad Wadhia
It has long been understood that limited government resources are a key reason for why the Executive Branch uses prosecutorial discretion to refrain from arresting, detaining, or deporting a noncitizen or groups of noncitizens. A second theory driving prosecutorial discretion is humanitarian. Noncitizens with specific equities that include economic contributions to the United States, long term residence in the United States, service as a primary breadwinner or caregiver to an American family, or presence in the United States as a survivor of sexual assault are among the reasons the government have used to apply prosecutorial discretion to protect individuals or groups of people. A final reason prosecutorial discretion might persist is as a stop gap to anticipated future legislation. These rationales for prosecutorial discretion are well documented in domestic immigration history, but this article is the first to trace these rationales to the Chinese Exclusion era and reveal what may be the greatest untold story about prosecutorial discretion in immigration law.
This article examines the use of prosecutorial discretion to protect Chinese nationals subject to deportation following a foundational nineteenth century Supreme Court immigration law case known as Fong Yue Ting. This article provides a historical precedent for the protection of a category of people as well as deeper history of prosecutorial discretion in immigration. This article also sharpens the policy argument to protect political activists through prosecutorial discretion and forces consideration for how modern immigration policy should respond to historical exclusions and racialized laws. Finally, this article provides a foundation for policymakers and government to consider a prosecutorial discretion policy for those engaged in civil disobedience; and to study how changes in how racial disparities in immigration enforcement and non-enforcement are measured.
Tuesday, October 12, 2021
Today, DHS Secretary Alejandro N. Mayorkas issued a new memo entitled Worksite Enforcement: The Strategy to Protect the American Labor Market, the Conditions of the American Worksite, and the Dignity of the Individual.
The memo opens with three "fundamental principles":
- Reduce the demand for illegal employment by delivering more severe consequences to exploitative employers and their agents;
- Increase the willingness o f workers to report violations o f law by exploitative employers and cooperate in employment and labor standards investigations; and,
- Broaden and deepen mechanisms for coordination between the Department o f Homeland Security and the Department of Labor, the Department of Justice, the Equal Employment Opportunity Commission, the National Labor Relations Board, and state labor agencies.
Next, Sec. Mayorkas calls for "policy review" to:
- Identify existing and potential policies that have an impact on the Department's role in supporting the enforcement of employment and labor standards.
- Develop agency plans to alleviate or mitigate the fear that victims of, and witnesses to, labor trafficking and exploitation may have regarding their cooperation with law enforcement in the investigation and prosecution of unscrupulous employers.
- Identify the policies and measures that are in place to ensure that E-Verify is not manipulated to suppress unauthorized workers from, or to punish unauthorized workers for, reporting unlawful labor practices such as substandard wages, unsafe working conditions, and other forms of worker exploitation.
Finally, the memo also includes these two nuggets of "immediate guidance":
- Cease mass worksite operations. The deployment of mass worksite operations, sometimes resulting in the simultaneous arrest of hundreds of workers, was not focused on the most pernicious aspect of our country's unauthorized employment challenge: exploitative employers. These highly visible operations misallocated enforcement resources while chilling, and even serving as a tool of retaliation for, worker cooperation in workplace standards investigations. Moreover, such operations are inconsistent with the Department's September 30, 2021 Guidelines for the Enforcement of Civil Immigration Law and the individualized assessment they require. Given these concerns, please ensure we no longer conduct mass worksite operations and instead refocus our workplace enforcement efforts to better accomplish the goals outlined above.
- Requests for prosecutorial discretion. I understand the Department of Labor has recently requested support in certain ongoing workplace standards investigations, including by asking that OHS consider whether to exercise prosecutorial discretion for workers who are victims of, or witnesses to, workplace exploitation. These individual requests should be considered on a case-by-case basis, weighing all relevant facts and circumstances. In evaluating these requests,the legitimate enforcement interests of a federal government agency should be weighed against any derogatory information to determine whether a favorable exercise of discretion is merited.