Friday, January 27, 2023
Immigration Article of the Day: Kafka’s Bureaucracy: Immigration Administrative Burdens in the Trump Era by Donald P. Moynihan, Julie Gerinza, & Pamela Herd
Kafka’s Bureaucracy: Immigration Administrative Burdens in the Trump Era by Donald P. Moynihan, Julie Gerinza, & Pamela Herd, Perspectives on Public Management and Governance. 5(1): 22-35.
What does a government do when it decides to make a public service as burdensome as possible? We consider this question in the context of immigration policy during the Trump administration. The case demonstrates the deliberate and governmentwide use of administrative burdens to make legal processes of immigration confusing, demanding, and stressful. Many of these changes occurred via what we characterize as formal administrative directives, a level of policy implementation that falls between high-level formal executive legal powers, such as executive orders or rules, and street-level discretion, pointing to the importance of processes such as memos and training as an understudied space of using burdens to make policy. The case challenges the standard portrayal of the principal–agent dilemma, given that the political principals engaged in a disruption of public services akin to sabotage, while the bureaucratic agents remained largely quiescent. The outcome was a system of racialized burdens, where changes were targeted at racially marginalized immigrants. The case also highlights the use of fear as a particular type of psychological cost.
Australia is no stranger to immigration controversies. Ye, formerly known as Kanye West, also is no stranger to controversy. Mary Crock (University of Sydney) for The Conversation considers Ye's immigration issues in Australia:
"Just one year after then-Immigration Minister Alex Hawke moved to expel tennis star Novak Djokovic from Australia on character grounds, his Labor successor, Andrew Giles, is faced with another controversial visitor in the form of Ye (formerly known as Kanye West).
Professor Crock concludes by noting that
"What is clear from previous cases is the fact the immigration minister has long enjoyed extraordinary power to exclude and expel non-citizens whose presence in Australia might prove unpopular. And these decisions inevitably involve political calculations. Just ask Novak Djokovic."
NPR reports that:
"Slowing birth rates in the developed world are resulting in aging populations and smaller workforces. But in parts of the developing world, the youth population is still growing, and some countries are struggling to create enough jobs for an expanding working-age population.
To economists, migration is the obvious solution. But the political implications could be harder to overcome. . . .
`A real bellwether for the future is South Korea,' said Michael Clemens, a professor of economics at George Mason University.
At 0.79 births per woman, South Korea has the lowest birthrate in the world. To augment the number of young, energetic workers relative to the number of old people, the country relies on migrant workers to fill labor shortages, Clemens said.
. . . .Immigration solves labor shortages in the developed world, and emigration solves job shortages in the developing world."
Both anti-immigrant sentiment and fears of labor exploitation are impediments to relying on immigration to offset the impacts of declining birth rates on the labor market.
Thursday, January 26, 2023
California Supreme Court Decides People v. Espinoza: Important Ruling Addresses California Penal Code 1473.7
Today the California Supreme Court issued an opinion in People v. Espinoza. A copy of the decision is available here.
The decision, authored by Justice Goodwin Liu, addresses a motion to vacate a conviction filed pursuant to Penal Code section 1473.7, a provision that allows noncitizens who have served their sentences to vacate a conviction if they can show it is “legally invalid due to prejudicial error damaging [their] ability to meaningfully understand, defend against, or knowingly accept the actual or potential adverse immigration consequences of a conviction or sentence.”
Juventino Espinoza moved to vacate his 2004 plea bargain, arguing that he was not informed by his counsel of the immigration consequences of the conviction. Instead, the attorney's assistant told Espinoza that if he plead no contest "everything was going to be fine."
On review, the California Supreme Court considered the following question: “Did the Court of Appeal err in ruling that defendant failed to adequately corroborate his claim that immigration consequences were a paramount concern and thus that he could not demonstrate prejudice within the meaning of Penal Code section 1473.7?”
In reversing, the Court held that Espinoza did make such a showing. First, the Court found that Mr. Espinoza established that he "did not meaningfully understand the immigration consequences of his plea." The fact that the trial court provided a general advisement under 1016.5 did not alter this conclusion.
Second, the Court concluded that defendants moving to vacate their convictions must provide “objective evidence” showing that they would have behaved differently if they had meaningfully understood the immigration consequence. Here, the Court found that the totality of the circumstances must be evaluated, and that "[o]bjective evidence includes facts provided by
declarations, contemporaneous documentation of the defendant’s immigration concerns or interactions with counsel, and evidence of the charges the defendant faced." Evidence such as ties to the United States, "community involvement following his conviction" and "a declaration from an immigration law expert explaining that he could have pleaded to alternative, immigration-safe dispositions" therefore should have been considered. Another factor, the Court explained, "is whether alternative, immigration-safe dispositions were available at the time of the defendant's plea."
A number of members of our immprof community were involved in this case as amici, including the Stanford Law School Immigrants' Right Clinic, The University of California Davis Immigration Clinic, and the University of California Irvine Criminal Justice and Immigrant Rights Clinic.
U.S. Senator Bob Menendez (D-N.J) and Representative Alexandria Ocasio-Cortez (D-N.Y.-14), alongside Sen. Cory Booker (D-N.J.), Sen. Ben Ray Luján (D-N.M.), Sen. Alex Padilla (D-Calif.), Rep. Greg Casar (D-Texas-35), and Rep. Raúl Grijalva (D-Ariz.-07), today led a bicameral group of nearly 80 lawmakers in a letter urging President Joe Biden to reverse his administration’s expansion of the failed border policy known as Title 42 and to abandon the proposed asylum “transit ban” rule.” The lawmakers also encouraged the President and his administration to work with Congress to ensure they develop safe, humane, and orderly border policies that enforce our immigration laws and uphold the right to asylum under domestic and international law.
“The administration’s announced border enforcement actions circumvent [domestic and international] law by not only expanding Title 42 beyond what is required by any court but by further implementing policies to deter and penalize people exercising their legal right to seek asylum at the border,” wrote the bicameral group of lawmakers to President Biden. “…We are therefore distressed by the deeply inconsistent choice to expand restrictions on asylum seekers after your administration determined it was no longer necessary for public health. Title 42 circumvents domestic law and international law. Human rights groups have extensively documented more than 10,000 violent attacks – including kidnappings, serious assaults, and deaths – against individuals who were expelled to or blocked in Mexico due to Title 42 since the beginning of your administration, with a disproportionate impact on Black, Brown, LGBTQ+, and Indigenous migrants.”
The Immigration Article of the Day is "The Immigration Shadow Docket" by Faiza W. Sayed, published here, in the Northwestern University Law Review.
Here is the abstract:
Each year, the Board of Immigration Appeals (BIA)—the Justice Department’s appellate immigration agency that reviews decisions of immigration judges and decides the fate of thousands of noncitizens—issues about thirty published, precedential decisions. At present, these are the only decisions out of approximately 30,000 each year, that are readily available to the public and provide detailed reasoning for their conclusions. This is because most of the BIA’s decision-making happens on what this Article terms the “immigration shadow docket”—the tens of thousands of other decisions the BIA issues each year that are unpublished and nonprecedential. These shadow docket decisions are generally authored by a single BIA member and consist overwhelmingly of brief orders and summary affirmances. This Article demonstrates the harms of shadow docket decision-making, including the creation of “secret law” that is accessible to the government but largely inaccessible to the public. Moreover, this shadow docket produces inconsistent outcomes where one noncitizen’s removal order is affirmed while another noncitizen’s removal order is reversed—even though the deciding legal issues were identical. A 2022 settlement provides the public greater access to some unpublished BIA decisions, but it ultimately falls far short of remedying the transparency and accessibility concerns raised by the immigration shadow docket.
The BIA’s use of nonprecedential, unpublished decisions to dispose of virtually all cases also presents serious concerns for the development of immigration law. Because the BIA is the final arbiter of most immigration cases, it has a responsibility to provide guidance as to the meaning of our complicated immigration laws and to ensure uniformity in the application of immigration law across the nation. By publishing only 0.001% of its decisions each year, the BIA has all but abandoned that duty. This dereliction likely contributes to well-documented disparities in the application of immigration law by immigration adjudicators and the inefficiency of the immigration system that leaves noncitizens in protracted states of limbo and prolonged detention. This Article advances principles for reforms to increase transparency and fairness at the BIA, improve the quality, accuracy and political accountability of its decisions, and ensure justice for the nearly two million noncitizens currently in our immigration court system.
How the Arizona Attorney General Created a Secretive, Illegal Surveillance Program to Sweep up Millions of Our Financial Records
Wednesday, January 25, 2023
We immprofs necessarily spend a lot of time keeping up with substantive law that is shockingly fluid compared to other fields of study. As my favorite immigration meme of all time bemoans "law changed half an hour ago." So true.
Sometimes, however, we need to step back and think about the "prof" half of our moniker. We don't just need to keep up with the state of immigration. We need to keep up with the state of teaching.
On that front, I heartily recommend an article by Cassie Christopher (TTU) called Normalizing Struggle, 73 Ark. L. Rev. 27 (2020), which I just had occasion to re-read. Cassie's central thesis is this:
Legal educators need to acknowledge that students struggle, to expect it, and to convey to students that their struggle is normal. In fact, it’s productive— learning is hard, and lawyers learn and struggle throughout their careers.
Her paper is well organized and thorough. Here's the preview:
Part I analyzes the ways in which traditional legal education disapproves of student struggle and conflates struggle with failure. This marginalizes and alienates students who don’t succeed on the first try, an unnecessary overreaction. Part II discusses the pervasiveness of struggle among law students. Part III is for law students; it seeks to reframe struggle generally as not only normal but productive, and it demonstrates the effectiveness of study strategies that encourage struggle. Part IV is for the individual law professor. This section reviews the literature on current legal pedagogy and illustrates how the best practices for a law professor include creating opportunities for students to struggle with material. Part V makes broader recommendations as to how law schools can normalize struggle, treating it as an ordinary and expected part of learning to be a lawyer.
Immigration Article of the Day: The End of California’s Anti-Asian Alien Land Law: A Case Study in Reparations and Transitional Justice
The Immigration Article of the Day is: "The End of California’s Anti-Asian Alien Land Law: A Case Study in Reparations and Transitional Justice" by Gabriel "Jack" Chin and Anna Ratner, published in 20 Asian American Law Journal 17 (2022) and available on SSRN.
Here is the abstract:
For nearly a century, California law embodied a rabid anti-Asian policy, which included school segregation, discriminatory law enforcement, a prohibition on marriage with Whites, denial of voting rights, and imposition of many other hardships. The Alien Land Law was a California innovation, copied in over a dozen other states. The Alien Land Law, targeting Japanese but applying to Chinese, Koreans, South Asians, and others, denied the right to own land to noncitizens who were racially ineligible to naturalize, that is, who were not White or Black. After World War II, California’s policy abruptly reversed. Years before Brown v. Board of Education, California courts became leaders in ending Jim Crow. In 1951, the California legislature voluntarily voted to pay reparations to people whose land had been escheated under the Alien Land Law. This article describes the enactment and effect of the reparations laws. It also describes the surprisingly benevolent treatment by courts of lawsuits undoing the secret trusts and other arrangements for land ownership intended to evade the Alien Land Law. But ultimately, the Alien Land Law precedent may be melancholy. California has not paid reparations to other groups who also have conclusive claims of mistreatment. Reparations in part were driven by geopolitical concerns arising from the Cold War and the hot war in Korea. In addition, anti-Asian immigration policy had succeeded in halting Japanese and other Asian immigration to the United States. Accordingly, one explanation for this remarkable act was that there was room for generosity to a handful of landowners with no concern that the overall racial arrangement might be compromised.
The states, led by Texas, filed a lawsuit in federal court against the U.S. government contending that there is no legal authority for the program rolled out by President Joe Biden ahead of his visit earlier this month to the U.S./Mexico border. The lawsuit also contends that states will be harmed by an influx of migrants from the four countries covered by the program.
The press release of the Florida Attorney General announcing the suit begins as follows:
"Attorney General Ashley Moody is taking action to stop President Joe Biden’s latest unlawful immigration move—Biden wants to stop illegal immigration by attempting to legalize unlawful entry for hundreds of thousands of immigrants. Just days before Attorney General Moody took Biden to court for refusing to enforce federal immigration laws, the president announced a new parole program that could allow up to 30,000 previously inadmissible immigrants into the U.S. monthly. Attorney General Moody and other state attorneys general are taking swift action to stop this latest unlawful immigration program."
Tuesday, January 24, 2023
From the National Catholic Reporter:
On Jan. 22, 2003, the U.S. and Mexican bishops issued a historic pastoral letter on migration. Titled "Strangers No Longer: Together on the Journey of Hope," the letter responded to the "signs of the times" — increased levels of immigration from Mexico and Central America to the United States.
The letter, the first of its kind between two episcopal conferences, called for a major overhaul of the U.S. and Mexican immigration systems. Among the letter's policy recommendations was the adoption, in both countries, of a path to citizenship for the undocumented.
Twenty years later, reform of the U.S. immigration system remains stalled in Congress, despite ongoing pleas from advocates and a Democratic administration. And it is unlikely to happen anytime soon, as the divide between Democrats and Republicans on the issue has only widened.
Why the lack of progress? There are a multitude of reasons which can be summed up in one term: political will. For various reasons, an insufficient number of our elected officials have shown the leadership and statesmanship to get such a controversial issue across the finish line.
That is not to say that leaders on both sides of the aisle have not tried to get immigration reform to the president's desk, but compromise on the issue has remained out of reach. Conservative Republicans have been the main culprits, too often politicizing the issue to play to their base. Why solve the problem when you can use it as an issue in a campaign?
From the Bookshelves: The Great Escape: A True Story of Forced Labor and Immigrant Dreams in American by Saket Soni
The New York Times called it a must-read. The Great Escape by Saket Soni is a non-fiction thriller about immigrant workers from India organizing to blow apart a post-Hurricane Katrina labor trafficking ring. It was featured on NPR's Fresh Air and Chris Hayes' podcast.
The publisher's blurb on the book:
"The astonishing story of immigrants lured to the United States from India and trapped in forced labor—told by the visionary labor leader who engineered their escape and set them on a path to citizenship.
In late 2006, Saket Soni, a twenty-eight-year-old Indian-born community organizer, received an anonymous phone call from an Indian migrant worker in Mississippi. He was one of five hundred men trapped in squalid Gulf Coast `man camps,' surrounded by barbed wire, watched by guards, crammed into cold trailers with putrid toilets, forced to eat moldy bread and frozen rice. Recruiters had promised them good jobs and green cards. The men had scraped up $20,000 each for this “opportunity” to rebuild hurricane-wrecked oil rigs, leaving their families in impossible debt. During a series of clandestine meetings, Soni and the workers devised a bold plan. In The Great Escape, Soni traces the workers’ extraordinary escape, their march on foot to Washington, DC, and their twenty-three-day hunger strike to bring attention to their cause. Along the way, ICE agents try to deport the men, company officials work to discredit them, and politicians avert their eyes. But none of this shakes the workers’ determination to win their dignity and keep their promises to their families.
Weaving a deeply personal journey with a riveting tale of twenty-first-century forced labor, Soni takes us into the lives of the immigrant workers the United States increasingly relies on to rebuild after climate disasters. The Great Escape is the gripping story of one of the largest human trafficking cases in modern American history—and the workers’ heroic journey for justice."
"Today, global mobility is on the rise. According to The Passport Index, an interactive ranking tool created by the investment firm Arton Capital, the “World Openness Score” reached an all-time high at the end of 2022. And the score has only continued to increase.
This means that passport holders around the world are receiving permission to travel to more countries without first obtaining a visa than ever before. As pandemic-related travel restrictions waned in 2022, the total number of visa waivers increased 18.5% globally. Nearly every passport on the index, which includes 193 United Nations member countries and six territories, became more powerful, with holders receiving immediate access to 16 additional countries on average.
But there’s still a massive mobility gap between the most and least powerful passports – and it has big implications for where people can travel, reside and work. The United Nations may proclaim that “everyone has the right to leave any country, including one’s own, and to return to one’s country,” but the fact is, not all passports are created equal or treated with equal respect."
Highest and lowest Passport Power Rankings, 2023
Highest and lowest Passport Power Rankings, 2023
Each passport's rank reflects the number of destinations where its holders can travel visa-free, receive a visa on arrival (VOA) or enter subject to a visa.
Sadly, we have seen too much hate violence in recent days, with Monterey Park a tragic example.
Unknown to many, if not most, Angelenos, the Chinese Massacre of 1871 occurred in what is now downtown Los Angeles. The event in brief: "In October 1871, a simmering, small-scale turf war involving three Chinese gangs exploded into a riot that engulfed the small but growing town of Los Angeles. A large mob of white Angelenos, spurred by racial resentment, rampaged through the city and lynched some 18 people before order was restored. In The Chinatown War, Scott Zesch offers a compelling account of this little-known event, which ranks among the worst hate crimes in American history."
The City of Los Angeles is commissioning a monument to the victims of the massacre and has selected six finalists to design the 1871 Chinese Massacre Memorial.
Monday, January 23, 2023
The Daily Caller reports that Russia is offering "automatic citizenship" to foreigners who voluntarily enlist to serve in the country's war against the Ukraine.
⚡️ General Staff: Russia offers citizenship to foreigners in exchange for enlisting in army.— The Kyiv Independent (@KyivIndependent) January 16, 2023
Russian authorities have been offering foreigners in Russia Russian citizenship in exchange for enlisting in the country’s armed forces, the General Staff reported on Jan. 16.
The U.S. has a similar provision: INA § 329 (8 U.S.C. § 1440), which provides that
"Any person who, while an alien or a noncitizen national of the United States, has served honorably as a member of the Selected Reserve of the Ready Reserve or in an active-duty status in the military, air, or naval forces of the United States during ... any ... period which the President by Executive order shall designate as a period in which Armed Forces of the United States are or were engaged in military operations involving armed conflict with a hostile foreign force, and who, if separated from such service, was separated under honorable conditions, may be naturalized..."
At this point, it's entirely unclear how many people might take Russia up on its offer of citizenship in exchange for war service. It's also unclear whether this offer will be enough to offset the nation's already heavy personnel losses over the course of this war.
The State Department is launching the Welcome Corps, a private sponsorship program that will harness the generosity and goodwill of American citizens to resettle refugees. Krish O'Mara Vignarajah heads up the Lutheran Immigration and Refugee Service and discusses the plan with NPR.
You can read more about the Welcome Corps program on the State Department website here.
Hate violence against Asian Americans spiked during the pandemic. Against a backdrop of violence, the nation braced itself upon learning of the mass murder perpetrated on the Lunar New Year in Monterey Park, California, an Asian American enclave on the outskirts of Los Angeles. Michael Luo for The New Yorker in "The Spectre of Anti-Asian Violence in the Monterey Park Shooting" writes that "[w]aiting for details to emerge, there was the familiar apprehension and dread experienced by so many Asian Americans since attacks against them began to soar during the pandemic."
In 2021, Luo wrote an article nicely summarizing the "purging" of Asians from the United States in the late 1800s.
My colleague Joel Dobris tipped me off to this interesting factoid:
"A 20-minute video that looks at 21 kinds of thinking errors. Here’s an example of the Gambler’s Fallacy: `A University of Chicago review found asylum judges were 19% less likely to approve an asylum seeker if they had just approved the previous two. The same person applying for a loan was more likely to get approved for a loan if the previous two applicants were rejected and was more likely to be rejected if the previous two applications were approved.'”
Sunday, January 22, 2023