Tuesday, October 4, 2022
Official White House Photo
In 2019, the nation learned that a suspect in mass shootings of Latina/os in El Paso had a "manifesto" with language mirroring President Trump's anti-immigrant rants.
More recently, the governors of Texas and Florida have demonized migrants in harsh terms and transported them to "sanctuary" jurisdictions. Not surprisingly, hate crimes follow. Late last week, J. David Goodman for the New York Times reported that two migrants were shot, one of them fatally, by two men who approached them along a roadway in West Texas. One of the men arrested is the warden at a local detention center.
Raul Reyes on The Hill looks at the investigation of the Texas migrant shooting, He notes that the "incident is troubling on several levels. It reflects the fact that inflammatory rhetoric can have deadly consequences. This type of violence is the logical, tragic outcome of dehumanizing and demeaning migrants." (bold added).
Immigration Article of the Day: Ending the Discriminatory Pretrial Incarceration of People with Disabilities: Liability under the Americans with Disabilities Act and the Rehabilitation Act by Margo Schlanger, Elizabeth Jordan, & Roxana Moussavian
Ending the Discriminatory Pretrial Incarceration of People with Disabilities: Liability under the Americans with Disabilities Act and the Rehabilitation Act by Margo Schlanger, Elizabeth Jordan, & Roxana Moussavian, Harvard Law & Policy Review, Vol. 17, No. 1, 2022
Our federal, state, and local governments lock up a hundreds of thousands of people at a time—millions over the course of a year—to ensure their appearance at a pending criminal or immigration proceeding. This type of pretrial incarceration—a term we use to cover both pretrial criminal detention and immigration detention prior to finalization of a removal order—can be very harmful. It disrupts the work and family lives of those detained, harms their health, interferes with their defense, and imposes pressure on them to forego their trial rights and accede to the government’s charges in an effort to abbreviate time behind bars. For people with disabilities, however, pretrial incarceration is often even worse; it can utterly destabilize their physical and mental health and devastate their ability to participate in their proceedings. Set aside whether that would be a justifiable imposition if pretrial incarceration were truly necessary for the criminal or immigration systems to process their cases or if it truly served public safety. We demonstrate in this article that existing antidiscrimination law demands alternatives to pretrial incarceration, when it is demonstrably unnecessary and undermines the equal access of people with disabilities to the criminal or immigration processes that purport to justify it. The argument is somewhat novel, but founded firmly on existing law: the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973, their regulations, and well-developed interpretive case law.
In Part I, we explain how people in pretrial incarceration are disadvantaged in their access to justice because of their disabilities. In Part II, we establish that the criminal and immigration legal systems are covered by the Rehabilitation Act and the ADA, which mandate that people with disabilities receive “meaningful access” to government operations, including when providing such access requires reasonable modifications of ordinarily applicable policies and procedures. We set out the statutory, regulatory, and case law parameters for determining whether a proposed modification to defendant practices constitutes a “reasonable modification” required by statute, or a “fundamental alteration” not so required. And we analyze the issue of causation, explaining what it means for deprivations to be “by reason of . . . disability.” Part III applies the law, demonstrating that providing alternatives to pretrial incarceration would constitute a reasonable modification to, not a fundamental alteration of, the underlying crim-inal/immigration processing systems. It also analyzes the differences between our proposals and two quite different disability-related interventions—competency restoration and the appointment of counsel. Part IV examines several specific counterarguments that government defendants might offer. For individuals facing state criminal charges, we suggest that Younger abstention poses no obstacle to ADA/Rehabilitation Act enforcement under our theory. For individuals in immigration detention, we rebut, seriatim, several counterarguments: we show that our proffered interpretation of the Rehabilitation Act is consistent with so-called “mandatory detention” Immigration and Nationality Act (INA) provisions, and we address several INA jurisdiction-stripping provisions.
We write this article with the certainty that there are many people who have been and will continue to be unlawfully deported or imprisoned, absent the intervention of disability law. Our argument offers a path for people with disabilities and legal practitioners to seek release from incarceration in order to obtain equality of opportunity in their judicial proceedings.
Monday, October 3, 2022
Photo from the U.S. Supreme Court website
persecution. The IJ also denied Santos’s claim for relief under the CAT. Santos appealed to the BIA.
The BIA dismissed her appeal. First, the BIA concluded that Santos’s allegation of sexual assault was sufficient to establish past persecution on account of membership in a particular social group. Consequently, Santos was entitled to a presumption of future persecution. However, the BIA ruled that the government had rebutted the presumption. The BIA also affirmed the IJ’s ruling that Santos had not established eligibility for relief under the CAT. Finally, the BIA rejected an argument that the IJ ignored or failed to consider relevant evidence."
Racial identity groupings are social, scientific, and legal categories... and they do not always line up. Government classifications for decades have considered people of Middle Eastern and North African to be "white." The exception has been in case law such as the 1923 racial prerequisite case Thind v. US, in which the Supreme Court found that a South Asian Indian person who would be scientifically classified Caucation to be non-White because he would not be seen that way to the "common man." Consequently, the court reasoned that Mr. Thind was not eligible to be naturalized, in keeping with decisions barring Japanese and other non-White immigrants from being able to naturalize.
While the motivations differ, that reasoning from lived experience echoes what advocacy groups have been saying. Post-9/11, they feel that those with MENA ethnicity are not treated as if they are white when it comes to housing, employment and other forms of discrimination. Moreover, surveys show that the younger generation does not see themselves as white.
Congress is starting to question the classification and have raised the possibility that the U.S. census should include a separate box for MENA in 2030. The Obama administration had researched whether and how to make the policy change. The effort halted during the Trump administration, but it is reviving under the Biden administration. The current chief statistician, Karin Orvis, said the government was looking at how it collects race and ethnicity data and would revise its standards by summer 2024.
Immigration Article of the Day: All The Presidents' Dreamers: Immigration Reform that Biden and Trump Can Agree On (and Why That Reform May be Elusive) by Victor C. Romero
All The Presidents' Dreamers: Immigration Reform that Biden and Trump Can Agree On (and Why That Reform May be Elusive) by Victor C. Romero, Penn State Law Research Paper, 9 Belmont Law Review 317 (2022)
While a sizeable gulf exists between the Trump and Biden administrations’ approaches to immigration, there is one policy area where these presidents would see eye-to-eye: a legal pathway for “Dreamers,” longtime undocumented residents who initially came to the U.S. as children. Notwithstanding this exceptional example of bipartisanship, how the nation now moves forward to create such a pathway is a conundrum. The political divide that has stalled a two-decades-long search for a congressional solution has its roots in America’s longstanding ambivalence about whether and how to provide basic opportunities to the least of its denizens. This Essay traces the current stalemate over the Dreamers to earlier disputes about desegregation and public school funding evident in a trio of landmark cases – Brown v. Board of Education, San Antonio Independent School District v. Rodriguez, and Plyler v. Doe – each of which highlights tensions underlying the Court’s commitments to ensuring equal protection of the law to minoritized communities. With respect to Dreamers in particular, the Obama/Biden approach will be compared to and contrasted with Trump’s policy perspective. Viewing these approaches from the lens of three constitutional themes – separation of powers, federalism, and individual rights – this Essay argues that true legislative progress for the Dreamers continues to be an uphill battle because of the history lessons gleaned from Brown through Plyler.
Sunday, October 2, 2022
Official White House Photo
Josh Lederman and Julia Ainsley for NBC News reports that the White House is preparing to take executive action in response to a potential court defeat that could end the Deferred Action for Childhood Arrivals (DACA) policy. "Planning has intensified in recent days ahead of a decision on the program’s future from the 5th U.S. Circuit Court of Appeals, possibly within days. . . . The conservative panel of judges is all but certain to rule that DACA is illegal."
The Biden administration seeks to take steps that would protect DACA recipients from removal. "The order would direct Immigration and Customs Enforcement to deprioritize deporting DACA recipients and refrain from deporting them if they aren’t deemed threats to public safety or national security."
DACA comes with work authorization. Absent congressional action, DACA's "work authorizations are all but certain to end. "
Immigration Article of the Day: Executive Discretion and First Amendment Constraints on the Deportation State by Jennifer Lee Koh
Executive Discretion and First Amendment Constraints on the Deportation State by Jennifer Lee Koh, Georgia Law Review, Vol. 56, 2022 (Forthcoming)
Given the federal courts’ reluctance to provide clarity on the degree to which the First Amendment safeguards the free speech and association rights of immigrants, the immigration policy agenda of the President now appears to determine whether noncitizens engaging in speech, activism, and advocacy are protected from retaliation by federal immigration authorities. This Essay examines two themes: first, the discretion exercised by the Executive Branch in the immigration context; and second, the courts’ ambivalence when it comes to enforcing immigrants’ rights to be free from retaliation. To do so, this Essay explores the Supreme Court’s influential 1999 decision in Reno v. American-Arab Anti-Discrimination Committee, which held that statutory restrictions on judicial review prevent noncitizens from bringing First Amendment-based selective deportation claims as a defense to deportation. In particular, it draws attention to the Court’s implicit suggestion that foreclosing judicial review of such claims was necessary to preserve the legitimacy of positive exercises of prosecutorial discretion to the benefit of immigrants. The Essay then turns to the relationship between executive discretion in the immigration context and the possibility of robust, judicially enforceable First Amendment protections for immigrants, especially individuals facing immigration enforcement action. It highlights how a different dimension of executive discretion—the operation of low- and mid-level discretion in the deportation state—provides agency officials with extensive opportunities to retaliate against noncitizens for their political speech and activity. The Essay concludes with the suggestion that judicially enforceable First Amendment constraints on this low- and mid-level discretion are both possible and necessary, while expressing concern over the Supreme Court’s endorsement of broader restrictions on noncitizens’ access to the federal courts.
Saturday, October 1, 2022
Contrary to popular belief, when a child is adopted from abroad by an American citizen and brought to the United States, that child does not always become an American citizen. Many adoptees have not discovered until years later (sometimes far into adulthood) that they are not actually citizens, and some likely still do not know. To address this problem, the Child Citizenship Act of 2000 (CCA) was enacted to automate citizenship for certain international adoptees, but it did not cover everyone. Thousands or tens of thousands of adoptees still live under the assumption that they are American citizens when in fact they are not. While laws have been proposed to fill the gaps left by the CCA, none have yet passed.This Article argues that children adopted by U.S. citizen parents are entitled to permanence of nationality. It explores how state and federal authorities deliberately and irrevocably sever the ties of transnational adoptees to their families of origin to promote the interests of the adoptive family. The U.S. adoption framework prioritizes the unity of the adoptive family over maintaining connection to the child’s family of origin. Adoptees often struggle to understand and define their identity on various levels, including their personal, national, and ethnic identities. Citizenship precarity adds an extra layer of psychological difficulty for transnational adoptees, making the child’s position in society even less secure. If a child can be adopted into an American family but not accepted as a member of the American nation, then the child will never have the full stability that adoption is intended to offer. The United States can and should follow through on the promise of permanence to transnational adoptees by awarding them the status of U.S. nationals. This status would enable them to remain in the United States, travel on a U.S. passport, and fully participate in American society. The United States Code already contains an overlooked provision that awards nationality status to those who, although not formally citizens, nevertheless owe permanent allegiance to the country. Interpreting this statutory language to cover adoptees who do not otherwise qualify for formal citizenship reflects the reality that children adopted into American homes are permanent members of this society. Indeed, we argue that the right to nationality is grounded in the Equal Protection and Due Process Clauses of the United States Constitution. Recognizing nationality will ensure that adoptees—who were brought to the United States through no choice of their own—cannot be removed from it.
Friday, September 30, 2022
Top scorer in the National Basketball Association and All-Star, Joel Embiid of the Philadelphia 76ers was sworn in as a U.S. citizen two weeks ago, reports Dan Gelston of the Associated Press. "A native of Cameroon who also holds French citizenship, Embiid was sworn . . . in Philadelphia as an American citizen.""I’ve been here for a long time," said Embiid. "My son is American. I felt like, I’m living here and it’s a blessing to be an American. So I said, why not?"
Morgan Lee for the Los Angeles Times reports that "[m]igrants held by U.S. authorities at a detention center in rural New Mexico have endured retaliation rather than aid after reporting unsanitary conditions at the government-contracted jail, a coalition of civil rights advocacy groups said . . . ."
A public letter (for excerpts from the letter, see here) signed this week by at least a dozen migrants within the Torrance County Detention Facility describes broken plumbing, insect infestations, insufficient access to medical care and rationed bottles of drinking water. A companion complaint to the office of civil rights at the Department of Homeland Security documents retaliation, including restrictions on access to legal representation and a falsified accusation of misconduct against an immigrant.
The new complaint adds to concerns raised in August by the coalition — which includes the American Civil Liberties Union, Innovation Law Lab and El Paso, Texas-based Justice for Our Neighbors — drawing on information from interviews with scores of migrants at the center. The Torrance County Detention Facility is privately operated by CoreCivic for U.S. Immigration and Customs Enforcement to hold migrants.
The story sadly sounds of the vigilante violence against African Americans in the Old South. J. David Goodman for the New York Times reports that two migrants were shot, one of them fatally, by two men in a pickup truck that approached them as they walked along a roadway in West Texas. The two men arrested in connection with the shooting:-- "Michael Sheppard, the warden at a local privately run detention center, and his twin brother, Mark Sheppard." -- men were charged with manslaughter.
According to the N.Y. Times report,"Michael Sheppard worked as the warden of the West Texas Detention Center in Sierra Blanca, a site run by LaSalle Corrections, a company that operates more than a dozen private detention facilities in Texas, Louisiana and Georgia, according to the company’s website." (bold added).
In covering the story, Ryan Devereaux for the Intercept notes that
"For Michael Sheppard, it was the latest in a string of allegations of violence against immigrants going back years, with claims so severe that a federal prosecutor at one point sought the attention of the FBI.
As The Intercept reported in 2018, Sheppard, in his capacity as warden of ICE’s Sierra Blanca facility, was accused of participating in and overseeing the sadistic abuse of group of African migrants and asylum-seekers. In interviews with legal advocates, 30 men from Somalia described a “week of hell” in which they were pepper-sprayed, beaten, threatened, taunted with racial slurs, and subjected to sexual abuse by officials answering to Sheppard and in some cases by Sheppard himself."
A growing body of scholarship discusses the expansive nature of the criminal legal system. What remains overlooked are other parts of the carceral state with similarly punitive logics. This Article focuses on the undertheorized convergence of the family regulation system and the immigration system. I argue that their cumulative effects increase the risk of immigration detention, deportation, and ultimately, permanent family separation for non-citizen and mixed status families. This Article provides the first theoretical account of family regulation and immigration convergence. When referring to this phenomenon I utilize the term “fammigration web,” similar to the way other scholars refer to criminal legal and immigration system overlaps as “crimmigration.” Although the exact number of non-citizen families impacted by the family regulation system remains unclear, the existing literature suggests that thousands of families are adversely affected. While practitioners and advocates are increasingly discussing the relationship between the family regulation and immigration systems, scholarship has not fully caught up. This Article fills that gap by identifying how nodes in the fammigration web exacerbate the risk of family separation for non-citizen and mixed status families.This Article makes three central contributions. One, it provides the first theoretical account of family regulation and immigration convergence. Two, it examines how this convergence marks and subordinates immigrant families. Three, it situates efforts to shrink fammigration alongside broader efforts to shrink the carceral state. To dismantle carceral logics, we must identify how they are produced across systems. While this requires long-term strategies, this Article offers a few immediate ways to shrink the fammigration web.
Thursday, September 29, 2022
Here is a summary of the report's research finding:
Immigrants in counties with more detention space are significantly more likely to be arrested and detained by ICE.
The likelihood of ICE arrest increases as detention capacity increases.
The counties with the highest number of apprehensions also closely aligned with the
locations of some of ICE’s largest immigration detention facilities.
Communities of color, particularly Black immigrant communities, are the most
affected by the mass enforcement that follows detention capacity.
The full report is available here.
"The Center for Immigration Law and Policy seeks a law fellow to engage in creative, high-quality research and analysis related to immigration law and public policy. The Fellow will further the Center's mission by conducting legal and multi-disciplinary research on a range of immigration law and related issues, including the racially discriminatory origins of various provisions of the immigration code, the possibility of greater state and local-level immigration law, and other topics. The Fellow will provide research and writing support to senior scholars at the Center and will contribute to reports, academic articles, public comments, and other Center work. The Law Fellow will also participate actively in the Center's litigation projects, including cases involving immigration detention, the Temporary Protected Status program, access to the asylum system in the border region, and others. This will be a two-year position, beginning in Summer or early Fall 2023, and will be based in Los Angeles, California (as COVID-19 regulations permit)."
Professors Hiroshi Motomura and Ahilan Arulanantham are co-directors of the Center.
National Immigration Law Center Law Fellowship Position. Click here for details.
Immigration Article of the Day: Citizenship, Assimilation, and the Insular Cases: Reversing the Tide of Cultural Protectionism at American Samoa by Jason Buhl
Citizenship, Assimilation, and the Insular Cases: Reversing the Tide of Cultural Protectionism at American Samoa by Jason Buhl. Seton Hall Law Review, Vol. 53, No. 3, 2023
Notwithstanding the gravity of American sovereignty, the people of American Samoa have maintained a distinctive way of life: the fa’a Samoa. This resiliency reflects that American Samoa is in many ways the most unique of the five U.S. Territories, including the fact that its residents are the only Americans who do not automatically attain birthright citizenship. Although several petitioners have recently sought to challenge this arrangement, the American Samoa Government (ASG) argues that the imposition of citizenship would not only be against the will of the majority of American Samoans, but also constitute the tip of a slippery slope that would undermine local culture by flooding the islands with mainland normative values. For instance, the local Native Lands Ordinance would face enhanced scrutiny under the Equal Protection Clause, the territory’s chieftain-only senate would run afoul of Article I’s prohibition on titles of nobility, and the official observation of prayer would be in violation of the Establishment Clause. Two recent rulings by separate U.S. Courts of Appeals found against the petitioners on these and other grounds. Yet, while acknowledging that the ASG’s fears are justified, neither of the courts (nor any current scholarship) test that slippery slope argument in detail. This article fills that void by considering each of those arguments in the context of existing constitutional jurisprudence. Based on the experiences of other U.S. Territories and Indigenous Peoples, ample precedent suggests that the extension of citizenship would be followed by closer constitutional scrutiny in all three areas. Therefore, to allow for the preservation of cultural autonomy, the United States ought to maintain, improve, and maximize its ability to govern jurisdictions with the flexibility provided by the Territorial Clause of the U.S. Constitution. That may or may not mean the extension of statutory birthright citizenship if decided by the people of American Samoa themselves, which would still theoretically allow for the tailored application of mainland constitutional norms. It also may or may not mean continuance of the Insular Cases precedents, whose checkered legacy the Supreme Court must address in any event. Indeed, this article engages with those precedents on their 100th anniversary as well as offers commentary on Justice Gorsuch’s critical concurrence in the newest case in the line, United States v. Vaello Madero, 596 U.S. ___ (2022). Ultimately, although there are important livelihood-based improvements to be made in central-local relations, American democracy is sophisticated enough to allow for unique patterns of territorial governance so that assimilation need not follow the flag.
Wednesday, September 28, 2022
Senator Josh Hawley unveils bill that would allow states to enforce federal immigration law, deport migrants
No stranger to controversy, Senator Josh Hawley (R-Missouri), a Yale-trained lawyer, is again in the news for taking extreme conservative positions. Yesterday, Senator Hawley introduced legislation to give states the authority to enforce U.S. immigration law and empower states to implement deportation operations. "The measure from the Missouri Republican has virtually no chance of becoming law, but is intended to serve as a rebuke of Democratic President Joe Biden’s approach to immigration enforcement."
Here is Senator Hawley's press release announcing the bill:
"Today U.S. Senator Josh Hawley (R-Mo.) introduced the Empowering States to Deport Illegal Immigrants Act, new legislation that will give authority for states to enforce federal immigration laws and prosecute anyone who illegally enters the country that is residing in their state. With a rise in illegal drug trafficking and a surge in illegal border crossings over the past year, this bill will help protect American families and communities.
Due to the Biden Administration’s disastrous immigration policies, the United States is experiencing an unprecedented wave of illegal immigration. In 2022, there were more than 2 million border encounters, up nearly 470% since 2020. This does not account for illegal immigrants who entered our country without being encountered by Customs and Border Protection. Democrats fought hard to end President Trump’s Remain-in-Mexico policy, and doing so has contributed to a rise in crime, drug trafficking, and human trafficking across the southern border into the United States.
. . . .
The Empowering States to Deport Illegal Immigrants Act would allow states to:
- Remove illegal immigrants from the country, not just send them to other states
- Stop the record-high wave of illegal immigrants pouring over the southern border, which not only affects border states, but the rest of the United States
- Prosecute people who commit crimes while entering the country illegally"
Immigration Article of the Day: 2021 Survey of Illinois Law: Ending Immigration Detention and Expanding Immigrant Protections by Cindy Galway Buys
2021 Survey of Illinois Law: Ending Immigration Detention and Expanding Immigrant Protections by Cindy Galway Buys, Southern Illinois University Law Journal, Forthcoming
This article summarizes recent pro-immigrant legislation in Illinois and highlights a brewing federal circuit court split over limits on immigration detention by states. Part I of the article discusses the constitutionality of the Illinois Way Forward Act, which prohibits state and local governments from entering into contracts with the federal government to house immigrant detainees. The constitutionality of the Act was challenged in McHenry Co. v. Raoul, a case which is pending in the Seventh Circuit Court of Appeals as of this writing. The case raises issues of federalism, preemption, and anti-commandeering. Part II of the article summarizes other recent Illinois pro-immigrant legislation and the impact on present-day public policy issues.
Tuesday, September 27, 2022
I am Not Your Perfect Mexican Daughter is about a 15-year-old girl who has a contentious relationship with her immigrant parents. Author Erika L. Sánchez explains in conversation with Latino USA's Maria Hinojosa her goal to challenge ideas of Latina perfection. The book is being adapted into a major motion film starring American Ferrera.
David Bowles, author of They Call Her Fregona: A Border Kid's Poems, discusses the cracks in the Latino community and immigration in pursuit of a better life. The book is poetry -- literally, it is written in verse.
Conferrence (UC Davis): Lessons Learned and Ways Forward for the Economics and Politics of Refugee Integration
Symposium: "Lessons learned and ways forward for the economics and politics of refugee integration"
October 14, 2022, School of Law, UC Davis
Jointly sponsored by
- Economic Assimilation Research Network (Innovation Fund Denmark),
- UC Davis Global Migration Center
- UC Davis Aoki Center for Critical Race and Nation Studies
Academic Organizers: Prof. Raquel Aldana, Prof. Mette Foged, Prof. Giovanni Peri.
This workshop brings together the research of world-renowned scholars from economics, politics and law to understand the complex issues related to the integration, policies and politics relative to refugees in the world.
- In the morning session, economists will present the results of evaluations of policies on the economic success of refugees and their children and a panel will discuss what we have learned from recent research and policy experience;
- In the afternoon session, in a comparative approach that considers refugees in the US, at the US-Mexico Border and other refugees crisis in Latin America political scientists and law scholars will analyze aspects related to different legal and political responses of receiving countries to refugees inflow.
- Click here for the conference agenda.