Thursday, April 9, 2020
The Office of Immigration Litigation (OIL) in the U.S. Department of Justice has a job posting. Among other things, the "job description" states that
"Trial Attorneys in the Office of Immigration Litigation - Appellate Section have a significant amount of responsibility and work in a collegial environment with experienced litigators. Our attorneys are charged with promoting immigration laws and the pursuit of justice. Trial Attorneys defend the decisions of the Executive Office for Immigration Review and other agencies." (bold added).
With President Donald Trump, you've got your pick of excellent clips for use in your Critical Race Theory class. Let me suggest one more (0:07-0:16):
Reporter: Seattle police have reported a surge in calls about domestic violence. A number of groups have raised concerns...
President: About Mexican violence?
Reporter: Domestic violence.
Although the Immigration Courts with the largest backlogs of cases are located in large cities, the latest Immigration Court records show that when adjusted for population, many rural counties have higher rates of residents in removal proceedings than urban counties. In fact, of the top 100 US counties with the highest rates of residents in removal proceedings, nearly six in ten (59%) are rural. In these communities, residents facing deportation may find themselves in rural "legal deserts" where there are few qualified immigration attorneys, longer travel times to court, and high rates of poverty.
The Immigration Court data used in this report was obtained and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University in response to its Freedom of Information Act (FOIA) requests to the Executive Office for Immigration Review (EOIR).
No Justice in the Shadows: How America Criminalizes Immigrants by Alina Das (publication date April 14)
This provocative account of our immigration system's long, racist history reveals how it has become the brutal machine that upends the lives of millions of immigrants today. Each year in the United States, hundreds of thousands of people are arrested, imprisoned, and deported, trapped in what leading immigrant rights activist and lawyer Alina Das calls the "deportation machine." The bulk of the arrests target people who have a criminal record -- so-called "criminal aliens" -- the majority of whose offenses are immigration-, drug-, or traffic-related. These individuals are uprooted and banished from their homes, their families, and their communities.
Through the stories of those caught in the system, Das traces the ugly history of immigration policy to explain how the U.S. constructed the idea of the "criminal alien," effectively dividing immigrants into the categories "good" and "bad," "deserving" and "undeserving." As Das argues, we need to confront the cruelty of the machine so that we can build an inclusive immigration policy premised on human dignity and break the cycle once and for all.
Immigration Article of the Day: Cooperative Federalism and SIJS by Shani M. King and Nicole Sivestri Hall
Recognizing the plight of young immigrants who have suffered abuse, neglect, or abandonment, and cannot be reunited with a parent, Congress has accorded those who qualify Special Immigrant Juvenile Status (SIJS) and has created an expedited path for them to permanent residency and, ultimately, citizenship. The statutory scheme Congress crafted is unusual in that it requires each applicant to obtain a state court order finding that they meet the requirements for SIJS before the federal U.S. Citizenship and Immigration Service (USCIS) decides whether to confer that status on them. The implementation of this scheme has been fraught with difficulty, representing for some a challenge to federal control over immigration and representing for others an impermissible encroachment on state sovereignty: That it does both is as good a sign as any that Congress reached a pragmatic compromise that acknowledges the interdependence of the federal government and the states and the shared and overlapping interests they have in young and vulnerable immigrants.
In this Article, we examine the structure of the SIJS statutory scheme and the roles of state and federal actors contemplated therein. We review relevant principles of federalism, plenary powers, and the exceptional treatment of immigration laws within the federalism framework. Using these principles, we then consider the responses of states that have sought to broaden or restrict, respectively, access to SIJS. Finally, we consider the potential for a cooperative model of federalism to help resolve tensions and correct misunderstandings surrounding the SIJS statute. It is just such a pragmatic approach, which accepts the interactive and interdependent relationships between the federal government and the states, that allows us to best make sense of the SIJS statute and, we suggest, that can accommodate it as a legal hybrid that addresses the issues of immigration where they lie; both at the external federal borders and within those borders in the several states.
Wednesday, April 8, 2020
Happy to share my new article Mistreating Central American Refugees: Repeating History in Response to Humanitarian Challenge (forthcoming Hastings Race and Poverty Law Journal). The full article can be downloaded here.
In the 1980s, tens of thousands of Central Americans fled to the United States seeking refuge from civil unrest that ravaged their countries. In a largely geopolitical response, the Reagan administration labeled those fleeing Guatemala and El Salvador as “economic migrants,” detained them, and largely denied their asylum claims. The illegal discrimination against these refugees was exposed in a series of lawsuits and through congressional investigations. This led to the reconsideration of thousands of cases, the enlistment of a corps of asylum officers, and an agreement on the conditions under which migrant children could be detained.
Unfortunately, the lessons of the 1980s have been forgotten, or intentionally neglected. Beginning in 2014, once again large numbers of Central American asylum seekers—including women and children—are being detained. Asylum denial rates for migrants fleeing extreme violence are high. The mixed refugee flow continues to be mischaracterized as an illegal immigration problem. Many of the tactics used in the 1980s are the same today, including hampering the ability to obtain counsel. President Trump has taken the cruelty to the next level, by invoking claims of national security in attempting to shut down asylum by forcing applicants to remain in Mexico or apply for asylum in a third country. We should remember the lessons of the past. Spending billions on harsh border enforcement that preys on human beings seeking refuge is wrongheaded. We should be implementing policies and procedures that are cognizant of the reasons migrants are fleeing today, while working on sensible, regional solutions.
Everyone stay safe and sane.
This book provides a philosophical defence of open borders. Two policy dogmas are the right of sovereign states to restrict immigration and the infeasibility of opening borders. These dogmas persist in face of the human suffering caused by border controls and in spite of a global economy where the mobility of goods and capital is combined with severe restrictions on the movement of most of the world’s poor. Alex Sager argues that immigration restrictions violate human rights and sustain unjust global inequalities, and that we should reject these dogmas that deprive hundreds of millions of people of opportunities solely because of their place of birth. Opening borders would promote human freedom, foster economic prosperity, and mitigate global inequalities. Sager contends that studies of migration from economics, history, political science, and other disciplines reveal that open borders are a feasible goal for political action, and that citizens around the world have a moral obligation to work toward open borders.
IOM Releases Guidance for Employers and Businesses on Protection of Migrant Workers During the COVID-19 Crisis
Burmese migrants work on fishing boats and in coastal communities in Phang Nga, southern Thailand. Photo: Thierry Falise/IOM
The private sector, governments and other stakeholders must protect the rights and well-being of the estimated 164 million international migrant workers and their communities around the world, as the number of COVID-19 cases passed 1.3 million, says International Organization for Migration Director General Antonio Vitorino.
Migrant workers are disproportionately impacted by the negative effects of COVID-19 on businesses, including soaring unemployment rates and possible loss of income. It is therefore vital that international brands, their suppliers and other business partners respond comprehensively and collaboratively to the current situation. In doing so, they must recognize their shared responsibility to protect migrant workers and work together with governments towards avoiding costs of economic damages being passed onto workers.
IOM’s guidance document will be updated regularly for the duration of the pandemic.
General principles include:
- All workers should be treated with equality, dignity and respect, irrespective of their gender and migration status.
- The health, wellbeing and safety of all employees, including migrant workers, shall be a priority for employers during this crisis. Businesses must exercise an inclusive approach to their duty of care to respect human rights and meet the basic needs of all employees, especially those related to health.
- Monitor and comply with all requirements established by national and sub-national authorities regarding public health measures and ensure that critical information is communicated to employees.
- Liaise with and seek the support of relevant employer, trade and business associations to share information, learnings and recommended steps to address the crisis through cooperative action.
- Conduct a rapid assessment of existing health, safety, labour and social protection measures at the workplace and in worker accommodation (if relevant) and identify the most pressing needs of employees.
- Focus on gender sensitive measures and tailor your response to the needs of potentially vulnerable groups within your workforce, including migrants.
Please access the guidance at this link.
The categorical approach, which is a method federal courts use to ‘categorize’ which state law criminal convictions can trigger federal sanctions, is one of the most impactful yet misunderstood legal doctrines in criminal and immigration law. For thousands of criminal offenders, the categorical approach determines whether a previous state law conviction—as defined by the legal elements of the crime—sufficiently matches the elements of the federal crime counterpart that justifies imposing harsh federal sentencing enhancements or even deportation for noncitizens. One of the normative goals courts have invoked to uphold this elements-based categorical approach is that it produces nationwide uniformity. Ironically, however, the categorical approach produces the opposite. By examining the categorical approach in the criminal sentencing and immigration contexts, this Article shows that relying on state criminal elements has produced nonuniformity due to the variations of state law.
This Article examines and proposes remedies for the categorical approach’s nonuniformity problem. Although the Supreme Court has itself attempted to resolve this problem by deciding nearly twenty cases in the past twelve years with even more cases on its current docket, nonuniformity prevails. And while scholars are increasingly weighing in, this Article contributes to the literature by applying different theories of uniformity that juxtaposes the ideals of nationwide uniformity with the potential benefits of nonuniformity. This novel analysis supports at least two paths forward. First, if uniformity is to be prioritized, the elements-based categorical approach must be fundamentally redesigned to properly accomplish this goal. But given the difficulty of achieving genuine nationwide uniformity, keeping the elements-based categorical approach may be justified, albeit under a different theoretical framework that acknowledges the benefits of nonuniformity among states within a federal system of government.
Tuesday, April 7, 2020
Based on government statements, official state media stories, and reporting from mainstream independent journalism outlets, Think Global Health has identified ninety-six countries and territories that have imposed some form of travel restriction against China during the COVID-19 outbreak. Restrictions include:
- Border closures, defined as a partial or total closure of a land border with China;
- Entry or exit bans, which generally restrict the ability of nationals to depart from their country for travel to China or the ability of foreign travelers, nationals, or both from entering a country after traveling from or transiting through China;
- Visa restrictions, which include total or partial visa suspensions or restrictions, such as halting visa-on-arrival programs, for travelers originating from or traveling through China; and
- Flight suspensions, which include government bans on flights to or from China and suspension of flights to and from China by state-owned airlines.
The report finds that these travel restrictions have neither stopped the spread of this novel coronavirus nor prevented it from becoming a pandemic. It suggests the combination of travel restrictions within China and international travel restrictions against China may have delayed the spread of COVID-19, but more so in nations that also use that time to reduce community spread of the virus.
The First Circuit in Perrier-Bilbo v. Cissna ruled against a challenge to the inclusion of the phrase "so help me God" in the naturalization oath. Plaintiff Perrier-Bilbo argued that the phrase violates the Establishment and Free Exercise Clauses of the First Amendment, the Religious Freedom
Restoration Act, and the Fifth Amendment equal protection and procedural due process protections. She requested that USCIS and lower courts be enjoined from using the phrase "so help me God" during the naturalization ceremony for which she was scheduled. The court found the inclusion of "so help me God" as a means of completing the naturalization oath does not violate the First or Fifth Amendments or RFRA.
As reported previously, immigration detention centers are not immune from COVID-19. In news from the Pacific Northwest, over 60 immigrant women imprisoned at Northwest Detention Center in Tacoma, Washington, have gone on hunger strike demanding the immediate release of vulnerable people, humanitarian visas to detainees, and a moratorium on deportations and transfers. On Friday, dozens of allies protested outside the facility in their cars, honking their horns in support of immigrant prisoners. This is Maru Mora-Villalpando, an activist with the immigrant rights group La Resistencia.
Maru Mora-Villalpando: “As we are told that we should keep social distance, that we should clean our hands, that we should not go out, elected officials should be doing something to release people from detention, because people in detention have said, 'This is not only about us.' When guards come in or out, they’re also bringing the virus either in or they’re taking it out. As governments have asked us, stay home, save lives, we ask them: Get people out of cages, save lives.”
Monday, April 6, 2020
NYU Press is sponsoring a special virtual book launch with author Michael A. Olivas on Friday, April 10 at 10 MT/12 EST. Here is a link to the details of the book Perchance to Dream and the way to join by ZOOM.
Michael A. Olivas introduced by Shoba Sivaprasad Wadhia, Book Launch for Perchance to Dream: A Legal and Political History of the DREAM Act and DACA
FRIDAY. APRIL 10, 2020 | 10:00 AM MT/ 12pm EST
Attend via Zoom online.
Perchance to DREAM is the first comprehensive history of the DREAM Act, which made its initial congressional appearance in 2001, and Deferred Action for Childhood Arrivals (DACA), the discretionary program established by President Obama in 2012 out of Congressional failure to enact comprehensive immigration reform. Michael A. Olivas relates the history of the DREAM Act and DACA over the course of two decades.
Michael A. Olivas is William B. Bates Distinguished Chair in Law at the University of Houston Law Center and Director of the Institute for Higher Education Law and Governance at UH.
Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and Founding Director of the Center for Immigrants’ Rights Clinic at Penn State Law in University Park, Pennsylvania.
Join Asian Americans Advancing Justice and Hollaback for a bystander intervention to stop Anti-Asian/American and Xenophobic Harrassment on April 8 and April 9. A letter describing the online workshop and registration process is below.
Certain resident immigrants--including DACA recipients--may be eligible for the COVID-19 stimulus package individual payment. Some are concerned that receipt of this payment could be counted as a public benefit that might factor into a public charge assessment in the future. The Wake Forest Law Review has a blog post, "COVID-19 Stimulus Package: What CARES Act Rebates Mean for Immigrants," with analysis by 3L student Agustin Martinez. He explains why "immigrants who are eligible for CARES Act payments should rest assured that receiving this economic relief will not negatively impact any public charge determination in the future."
Hat tip to Margaret Taylor.
"The reasons for displacement and migration include severe weather conditions, climate change disasters, socio-political crises, conflict, war and struggle for basic necessities for human survival. There are more than 70.8 million people who have been forced to flee their country of origin. Receiving countries are not necessarily ready or in a position to provide protection to those who have been displaced. In order to improve the conditions for forcibly displaced people all over the world, there is an urgency to assess the reasons behind their displacement and migration as the same defines the migration status of [refugees, asylum-seekers, migrants and stateless persons (RAMS)] under international law. In turn, migration status impacts the requirements of countries to grant asylum and provide for the rights to protection and assistance enjoyed by Thus, the right to health is conceived in multiple terms in different human rights instruments for its protection with a relative degree of commitment. Therefore, the state obligations that arise from the ratification of these instruments must include the unfettered canopy of protection of RAMS during the COVID-19 pandemic."
Ahmad makes recommendations on appropriate actions in this Jurist piece.
Getty/B.A. Van Sise A doctor stands in the middle of the makeshift COVID-19 screening center outside Elmhurst Hospital in Queens, New York, April 2020.
A new column by the Center for American Progress calls attention to the 202,500 DACA recipients who are on the front line of the response to fight COVID-19. Nearly one-third of all current DACA recipients are working in three linked occupations and industry groups—health care, education, and food services—that make them “essential critical infrastructure workers,” according to the U.S. Department of Homeland Security’s guidelines.
Many DACA recipients are doctors and medical students who are risking themselves to help others; teachers who are continuing to educate children remotely; and workers who are ensuring that food is being produced, packed, cooked, shipped, and replenished in supermarket shelves.
Key findings of the column include:
- An estimated 29,000 health care workers are DACA recipients, playing a critical role as nurses, lab technicians, or home health aides. The majority of these health care workers are in the states with the largest number of DACA beneficiaries. For example:
- 8,600 in California
- 4,300 in Texas
- 1,700 in New York
- 1,400 in Illinois
- 1,100 in Florida
- 1,000 in Arizona
- 1,000 in Washington
- Another 12,700 DACA recipients work in the health care industry in essential roles such as custodians, food preparers, and management or administrators. From those, 4,100 DACA recipients are working in hospitals and 1,700 in residential facilities such as nursing homes.
- 14,900 DACA recipients are among the hundreds of thousands of teachers who have pivoted from the physical to the digital classroom across the country. Among those teachers, 4,300 are in California, 2,800 are in Texas, and 1,000 are in Illinois.
- 142,100 DACA recipients work in food-related occupations or industries in the United States.
- On the production end, 12,800 DACA recipients work in the farming and agriculture industry as laborers, while 11,600 DACA recipients work in the food manufacturing industry processing these agricultural products.
- Those keeping the grocery stores open include 14,900 DACA recipient essential food-related workers in roles such as cashiers (6,000); stockers and laborers (2,900); and supervisors (1,200).
- 82,200 DACA workers are employed in restaurants or food service establishments.