Thursday, February 2, 2023

The U.S. Southern Border: Repeating History in Response to Humanitarian Challenges

The Biden administration and the new House Judiciary Committee both treat the U.S. southern border as a crisis. It is very disappointing that the Biden administration buys into this rhetoric. Violence and unrest force thousands of residents from El Salvador, Guatemala, and other regions of Central America to flee from their homes, seeking safety in the United States. Upon arrival, they are detained. Asylum is denied at high rates. Migrant children are held for long periods of time, while their parents are arrested. Enforcement policies are implemented to deter asylum seekers, while legal challenges are filed to restore due process and to challenge detention conditions. This picture describes the circumstances facing Central American and other migrants today, but the images aptly describe what took place in the 1980s as well.

Then, as now, the United States' approach to what is essentially a mixed refugee flow has been mischaracterized as an illegal immigration problem. As a result, U.S. strategy has predominately been motivated by a desire to deter people from coming. Many of the tactics used in the 1980s are the same today. What we should have learned then, and what should be clear to us now, is that deterrence is not only wrong, but given the challenge, deterrence policy simply will not work. In the process, refugees are forced to endure more unnecessary hardship. In order to really move forward, we have to learn from the lessons of the past. We have refused to treat mixed refugee flows in our hemisphere-- principally from Latin America, and additionally Haiti--as humanitarian challenges rather than illegal immigration challenges.

There is a better way than simply repeating our mistakes of the past. The solution begins with recognizing the challenge for what it is--tens of thousands of human beings--fleeing serious violence. We need to invest in a fair and efficient adjudicatory process and get serious about working with partners in the region to increase citizen security, and reduce poverty. Yes, we should demand more from the governments we support, but the demand should not be a mindless “stop your people” from leaving or forcing displaced persons from seeking protection in other violent states. The demand should be about security and investment for citizens of the region.
Spending billions on harsh border enforcement that preys on human beings seeking refuge is wrongheaded. Rather, we should focus on reducing the need for people to migrate while ensuring we have fair and humane procedures in place domestically, regionally, and internationally to handle those who flee and have claims for protection. We also should be re-thinking refugee definitions themselves--criteria fixed in a period of time long past that are overly restrictive, inadequate to deal with the gang and gender-based violence that we are increasingly seeing. At the same time, we need to re-think our commitment to fair legal process. For decades, the process has been entirely inadequate, further contributing to the pressures on our system. Relying on the goodwill of pro bono attorneys and under-funded legal services programs is a severely deficient approach that I have witnessed and participated in since the 1970s.
In short, let's learn from and acknowledge our past and current mistakes. Then let's implement policies and procedures that are cognizant of the reasons migrants are fleeing today, while working on sensible, regional solutions.
Read more here.

February 2, 2023 | Permalink | Comments (0)

Border Wars: Witnesses Present Very Different Characterizations of the U.S./Mexico Border

As a whole, the Republican witnesses claimed that the border was in chaos, out of control, and open. 

El Paso County Judge Ricardo Samaniego, who was invited by Democrats to testify, offered a counter to that perspective.  Here is his statement, which begins as follows:

"My name is Ricardo Samaniego, I am an elected County Judge of El Paso, Texas, one of the safest large communities in America and the Veterans Capital of the USA, where I serve a population of almost  900,000 residents in a metroplex consisting of El Paso, Texas, Ciudad Juarez Mexico, and Las Cruces, New Mexico. These three cities form a combined international metropolitan area of 2.7 million individuals and constitutes the largest bilingual and binational work force in the Western Hemisphere. I am honored to share the El Paso story."

Judge Samaniego was specific about his observations:

"We have learned much about how to safely, humanely, and expeditiously treat asylum seekers who pass through our community on their way to unite with sponsors. I am here today to share our El Paso story, a success story, which strikes the delicate balance of security and compassion. Before I tell you our story, however, I must disabuse you of information which I personally know to be false:

  1. There is no “Open Border” in El Paso. Immigrants seeking asylum largely present themselves to Border Patrol for processing. El Paso is required to abide by the same immigration laws that other border communities must follow. 
  2. There is no invasion of migrants in our community, nor are there hordes of undocumented immigrants committing crimes against citizens or causing havoc in our community. Saying as much continues a false racist narrative against these individuals that perpetuates violence that the El Paso community is all too familiar with, when our citizens were targets of a racially motivated mass shooting on August 3, 2019, that killed 23 El Pasoans and wounded an entire
  3.  Humanitarianism and security are not a binary choice. It is the federal government’s responsibility to do both. We in El Paso, with sufficient financial support, can assist the federal government in fulfilling its mandate. Chaos is not the answer.


February 2, 2023 in Current Affairs | Permalink | Comments (0)

At the Movies: Guerrilla Habeas


Here is a film that ImmigrationProf blog readers may find of interest.  TIME magazine review the film:  "In the new documentary Guerrilla Habeas, filmmakers Emma Wall and Betsy Hershey advance an urgent argument about immigration courts: they function differently and apart from the American judicial system, often to the detriment of immigrants themselves."  The website for the film states that "GUERRILLA HABEAS tells the story of two intrepid lawyers in their crusade against US Immigration and Customs Enforcement (ICE) and the epidemic of deportations tearing individuals from their families and communities."


February 2, 2023 in Current Affairs, Film & Television | Permalink | Comments (0)

Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas, and Mississippi Seek 2-Year DACA Wind-Down


Photo of Judge Andrew Hanen courtesy of Wikimedia Commons

The Deferred Action for Childhood Arrivals (DACA) saga continues.  Britain Eakin for Law360 writes on the latest episode in the attempts of conservatives to dismantle a policy that has provided limited, yet important relief to young undocumented immigrants since 2012.  Recall that the Supreme Court in 2020 held that the Trump administration had unlawfully attempted to rescind the policy.  The Court decided the case on administrative law grounds and did not rule on the lawfulness of DACA.

In a summary judgment motion filed earlier this week, several states (Plaintiffs Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas, and Mississippi) asked a federal district court to require the Biden administration to wind down the DACA policy within two years.  The basic claim is that DACA is unlawful.

A court order currently bars the administration from processing new DACA applications, while permitting the consideration of renewal applications.

The Fifth Circuit last October affirmed U.S. District Judge Andrew S. Hanen's July 2021 ruling that DACA was in effect unlawful.  "However, the Fifth Circuit did not weigh in on the Biden administration's rule on the DACA program, saying in its Oct. 5 decision that it lacked an adequate administrative record to determine if the new rule [proposed by teh Biden administration] differed materially from Obama's 2012 memo. The court sent the case back to Judge Hanen for further review, spurring the states' supplemental complaint [and the summary judgment motion]."


February 2, 2023 in Current Affairs | Permalink | Comments (0)

Wednesday, February 1, 2023

WaPo Editorial Board Calls for Aslyum System Fixes

Today, the Washington Post Editorial Board printed an opinion piece titled Asylum has become a parallel immigration system. Here’s how to fix that. It's a genuinely interesting read, coming as it does from journalists as opposed to immigration experts.

Here are some of the more interesting nuggets:

  • "Last year, DHS asked Congress for funds to expand its roughly 1,000 asylum officers by 2,000 — a staffing level that would have also helped DHS work through its half of the asylum backlog, DHS officials say. Congress funded no expansion; it should find the money."
  • "The Justice Department should get more immigration judges.. though... The 600 or so it has represents a doubling since 2014, and still the caseload has grown. Even with 500 more judges, it would take eight years to work through the immigration court backlog..."
  • "One key to a more functional asylum system lies outside of it, in wider channels for legal immigration."
  • "the United States should seek to share responsibility with other countries to resettle asylum seekers"

I've highlighted the idea I personally find the most compelling.


February 1, 2023 in Current Affairs | Permalink | Comments (0)

From The Bookshelves: Daughters of the New Year by E.M. Tran


There's a cold front rolling through Oklahoma which means I'm looking forward to a night of cozying up under a blanket and reading. Would I also be doing this in August? Sure. But when there's snow on the ground, it's more socially acceptable.

What to read? What to read?

Daughters of the New Year by E.M. Tran looks promising. Check out this promo:

What does the future hold for those born in the years of the Dragon, Tiger, and Goat?

In present day New Orleans, Xuan Trung, former beauty queen turned refugee after the Fall of Saigon, is obsessed with divining her daughters' fates through their Vietnamese zodiac signs. But Trac, Nhi and Trieu diverge completely from their immigrant parents' expectations. Successful lawyer Trac hides her sexuality from her family; Nhi competes as the only woman of color on a Bachelor-esque reality TV show; and Trieu, a budding writer, is determined to learn more about her familial and cultural past.

As the three sisters begin to encounter strange glimpses of long-buried secrets from the ancestors they never knew, the story of the Trung women unfurls to reveal the dramatic events that brought them to America. Moving backwards in time, E.M. Tran takes us into the high school classrooms of New Orleans, to Saigon beauty pageants, to twentieth century rubber plantations, traversing a century as the Trungs are both estranged and united by the ghosts of their tumultuous history.

A “haunted story of resilience and survival” (Meng Jin, Little Gods), Daughters of the New Year is an addictive, high-wire act of storytelling that illuminates an entire lineage of extraordinary women fighting to reclaim the power they’ve been stripped of for centuries.


February 1, 2023 in Books | Permalink | Comments (0)

Noon PST Today on Zoom: Professor Kelly Lytle Hernandez on Her Book Bad Mexicans: Race, Empire, and Revolution in the Borderlands


Bad mexicans

Bad Mexicans: Race, Empire, and Revolution in the Borderlands

Join us TODAY as UCLA Professor of History, African American Studies, and Urban Planning Kelly Lytle Hernández discusses the migrant rebels who sparked the 1910 Mexican Revolution from the United States.

Kelly Lytle Hernández is a professor of History, African American Studies, and Urban Planning at UCLA where she holds The Thomas E. Lifka Endowed Chair in History and directs the Ralph J. Bunche Center for African American Studies. One of the nation’s leading experts on race, immigration, and mass incarceration, she is the author of Migra! A History of the U.S. Border Patrol (University of California Press, 2010), City of Inmates: Conquest, Rebellion, and the Rise of Human Caging in Los Angeles (University of North Carolina Press, 2017), and Bad Mexicans: Race, Empire, and Revolution in the Borderlands (Norton, 2022). She also leads Million Dollar Hoods, a big data research initiative documenting the fiscal and human cost of mass incarceration in Los Angeles. For her historical and contemporary work, Professor Lytle Hernández was named a 2019 MacArthur “Genius” Fellow. She is also an elected member of the Society of American Historiansthe American Academy of Arts and Sciences, and the Pulitzer Prize Board.

REGISTER HERE for livestream,  The event is open to the community.

Co-sponsored by UC Davis Aoki Center for Critical Race and Nation Studies, Global Migration Center, and Chicana/o Studies Department.


UPDATE 1:30 PST Feb. 1:  Professor Lytle Hernandez offered a wonderful summary of her book.  In discussing the violence against -- including lynching of -- persons of Mexican ancestry in the Texas/Mexico border region, she recommended looking at the website Refusing to Forget.  It provides a wealth of information about the horrific violence and offers background about, among other things, the role of the Texas Rangers in all of it.  Eduardo Diaz of the Smithsonian also suggested this resource on a museum exhibit on lychings ("The Starngest Fruit").  


February 1, 2023 in Books, Current Affairs | Permalink | Comments (0)

Tuesday, January 31, 2023

U.K. Has Lost Track of >200 Children Seeking Asylum

Several news outlets are reporting on the United Kingdom's recent acknowledgement that it has lost track of more than 200 children seeking asylum. According to a letter penned by charitable organizations, the missing children had been housed in hotels run by the Home Office (the U.K. agency responsible for migration). The charities fear these children have been "trafficked and criminally exploited."

Apparently, the Home Office began housing children in hotels two years ago. That was supposed to be a temporary measure. And yet, two years on, the practice persists. Children are supposed to be turned over to "local authorities" for care (presumably something akin to a state child protective services).

The numbers cited in the letter are large. "4600 children have been accommodated in these hotels since July 2021 with 440 missing episodes and 200 children who have never been found."


January 31, 2023 in Current Affairs | Permalink | Comments (0)

Polaris Study of Human Trafficking Survivors: National Survivor Study

Trafficking Survivors Experience Serious Economic and Social Barriers After Exploitation

Polaris, s leading organization to end sex and labor trafficking in North America has published the National Survivor Study, essential research of human trafficking survivors in the United States.  

The study found that survivors face substantial barriers to recovery following exit from their trafficking experience. Key data findings include: 

  • 43 percent of survey respondents were making under $25,000 per year, compared to 26 percent of the general US population.
  • 54 percent of respondents reported that their own resourcefulness was one of their most valuable sources of support. 
  • 40 percent of respondents reported some kind of criminal record as a result of their trafficking experience.
  • Over 60 percent of respondents reported experiencing financial abuse by their trafficker.

These results demonstrate that survivors of human trafficking in the United States are far from thriving, and that the systems that are supposed to support them are failing. 

Download the full report for further data about the survivor experience.


January 31, 2023 in Current Affairs | Permalink | Comments (0)

DHS Secretary Mayorkas credits new immigration policy for decline in illegal crossings


Department of Homeland Security Secretary Alejandro Mayorkas credits new immigration policy for decline in illegal crossings.  In a press statement on January 25, the DHS stated:

" Encounters of Cuban, Haitian, Nicaraguan, and Venezuelan non-citizens attempting to cross the southwest border unlawfully has decreased drastically since President Biden announced an expanded parole program for these individuals, putting the month of January on track to see the lowest levels of monthly border encounters since February 2021.

Preliminary numbers from January show that encounters of Cubans, Haitians, Nicaraguans, and Venezuelans crossing unlawfully between ports of entry at the southwest border declined 97% compared to December. . . .  

`These expanded border enforcement measures are working,' said Secretary of Homeland Security Alejandro Mayorkas. `It is incomprehensible that some states who stand to benefit from these highly effective enforcement measures are seeking to block them and cause more irregular migration at our southern border.'”


January 31, 2023 in Current Affairs | Permalink | Comments (0)

Monday, January 30, 2023

Assessing executive authority behind Biden's parole program for Venezuela

Recently, I was asked by a reporter how the challenge to Biden's executive authority to issue a student loan relief program implicates immigration policy. The most pressing immigration example is the humanitarian parole program for Venezuelan and Cuban, Haitian, Nicaraguan asylum seekers. Other examples of immigration programs that rest on Presidential authority similarly rely on the president's constitutional powers or pure executive discretion similar to parole. These include special parole programs to benefit Ukraine, Haiti, Cuba, Central American youth, and historically military families, Filipino, Vietnam, Laos, and earlier waves of Haitians and Cubans. Afghanistan does not have a special program, but they fall into mechanisms for the evacuation and settlement of Afghan citizens following the military withdrawal. Whether or not they are legally authorized turns partly on the design of the program, as well as the Constitutional and statutory claims. (Stuart Anderson wrote about the refugee crisis on the Immigrationprof blog here.)

The other executive actions currently before the US Supreme Court include regulaton of the US-Mexico border through Title 42 and the DHS enforcement priorities. They may turn on cross-cutting issues about the INA and other substantive policies. The recent decision upholding Biden's decision to end the Migration Protection Protocols (and here) may bear on these rulings, too. 

Still others challenges are to executive programs accompanied by agency actions (e.g. DACA) and primarily entail APA challenges. (Among other copious writings, see a compilation of the agency examples in my co-authored piece with Daimeon Shanks that will come out in the Maryland Law Review in a few weeks.)

What struck me about the inquiry is the number and range of programs under the Biden adminstration and on the heels of the Trump and Obama administrations. I was also struck by the range of other policy arenas that may be implicated, including the environment. What it points to is that immigration law has become a fertile site for understanding the core of administrative law; it is no longer an exceptional case. 


January 30, 2023 | Permalink | Comments (0)

Maggio Summer Fellowship - applications open until February 10, 2023!

Michael Maggio Immigrants’ Rights Summer Fellowship

Maggio Summer Fellowship - applications open until February 10, 2023!

The application for the 2023 Maggio Immigrants’ Rights Summer Fellowship Program is now accepting applications. Michael Maggio was an extraordinary immigration attorney with a passion for social justice. As an attorney, he took up the defense of asylum-seeking Central Americans threatened with deportation and worked on the landmark Filartiga v. Pena case in 1980. While he sadly lost his battle with cancer in 2008, his passion for helping the most vulnerable continues through this annual Fellowship, strengthening law students’ long-term commitment to promoting justice and equality for vulnerable immigrant groups.

Organized and funded by AILA, the National Immigration Project, and the Center for Human Rights and Constitutional Law, the Fellowship is awarded to one law student each summer to work on a student-initiated project. For consideration, each student must submit a project proposal with an organization willing to host the student for 10 weeks and provide a $1,500 stipend. The $1,500 amount may be paid by the host organization or may be provided by the law student through other means, e.g., law school public interest funding, independent fundraising, etc. The Maggio Immigrants' Rights Fellowship will provide an additional $2,500 stipend for a total award of $4,000. More details may be found on the Maggio Fellowship website. On top of this stipend, the Maggio Fellowship also offers complimentary registration to national immigration conferences.

For more information on the application and to learn more about the impressive work of past fellows, visit http://maggiofellowship.orgThe deadline is February 10, 2023. If you have any questions, please contact me at Thank you!


January 30, 2023 in Current Affairs, Jobs and Fellowships | Permalink | Comments (0)

Happy Korematsu Day!


Happy Korematsu Day!

On January 30, California celebrates the Fred Korematsu Day of Civil Liberties and the Constitution. It honors the legacy of civil rights hero Fred T. Korematsu and his fight for racial equity, social justice, and human rights for all.

On this day, and every other day of the year, we hope that his story of perseverance in the face of adversity inspires others become more civically involved and to “stand up for what is right.”

To learn more, click here.

January 30, 2023 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Hybrid-Status Immigrant Workers by Jacob Hamburger

Jacob Hamburger on beige background

Hybrid-Status Immigrant Workers by Jacob Hamburger  


Precarious work arrangements have become a dominant feature of twenty-first-century political economy. One employer strategy that has contributed to eroding workers’ rights and protections is misclassifying them as independent contractors, avoiding the obligations that come with employee status. Recently, policymakers in some states and at the federal level have sought to combat this trend by expanding the definition of employment, notably by adopting the three-prong standard known as the ABC test. The misclassification problem has received much attention in both legal scholarship and public discourse, but these discussions have not sufficiently addressed how these reforms affect a particularly vulnerable subset of precarious workers: undocumented immigrants without federal employment authorization.

Immigrant workers often depend on independent contractor status to work. Federal immigration law requires employers to verify that all employees are permitted to work in the United States, but does not require such verification for independent contractors. As a result, immigrants can work as independent contractors without having to fraudulently claim work authorization. Independent contractor jobs are no less precarious for immigrants than for their native-born counterparts, but new reforms may improve their working conditions by extending to them many of the protections of labor and employment law. However, these reforms may also have the unintended consequence of shutting immigrant workers out of the formal economy by defining more work arrangements as employment.

This Article examines how efforts to combat employee misclassification can include immigrants without federal work authorization. It argues that immigrant workers can hold a hybrid status: defined as “employees” under new, broader labor and employment law definitions of the term, while remaining “independent contractors” for immigration purposes. As a result, these reforms do not trigger new work authorization verification requirements for employers that make it harder for immigrants to work. At the same time, allowing this hybrid status to coexist between work law and immigration law contexts will likely require action on the part of both state legislatures and federal agencies. In the fast-evolving context of immigration federalism, promoting hybrid status for unauthorized workers promises to be a powerful tool for states seeking to implement an inclusive immigration agenda.


January 30, 2023 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Sunday, January 29, 2023

Immigration Article of the Day: Racial Discrimination in International Visa Policies by Andrew Rosenberg 

Racial Discrimination in International Visa Policies by Andrew Rosenberg 


Does racial discrimination persist in global mobility rights? While many states explicitly discriminated based on race far into the 20th century, contemporary migration policy-making is now putatively objective. The rise of white supremacist violence against all varieties of migrants, politician statements, and public support for restrictive policies call this supposed color blindness into question. However, existing work is not discerning because most policies appear objective. In this article, I use new data on bilateral visa waiver policies from 1973 to 2013 to show that racial difference predicts whether a country receives a visa waiver, even after accounting for its economic, political, and security context. This conditional racial discrimination has worsened since 9/11. In so doing, I provide evidence of systematic racial discrimination in international visa policy-making. The results have important implications for the study of racial inequality in the international system.


January 29, 2023 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Saturday, January 28, 2023

Don't Characterize a Refugee Crisis as a Border Problem

A Historic Refugee Crisis Miscast As a Border Emergency

Providing legal ways to work or seek protection in America is the only viable way to reduce illegal immigration.

From Stuart Anderson:

President Joe Biden's administration has made mistakes on immigration policy, but not the ones its critics think. Recent actions, including a parole program for individuals from four countries, are promising and can help overcome the administration's twin errors: failing to frame the situation at the border as a refugee crisis and continuing some of former President Donald Trump's enforcement policies at the border.

The United States is experiencing a historic refugee crisis in the Western Hemisphere that has been cast as a "border crisis." An unprecedented economic collapse and widespread human rights violations caused more than 7.1 million Venezuelan refugees and migrants to leave their country since 2015, with many barely surviving and going to places other than the United States. Nearly 2 million Venezuelans have gone to Colombia and 1.3 million to Peru. Cubans and Nicaraguans have also fled their authoritarian governments in large numbers, and violent gangs are terrorizing Haitians.

The Biden administration shot itself in the foot by conceding to critics that immigration policy success would be measured by the number of Border Patrol "encounters" with migrants. Then, inexplicably, the administration guaranteed border numbers would be vastly inflated by continuing to use Title 42, an immigrant expulsion authority that has masqueraded as a public health order since March 2020. 

Many people mistakenly believe encounters are the same as "apprehensions," the longstanding Border Patrol statistic. That is not the case. Encounters encompass four different enforcement actions, including expulsions carried out under the Title 42 health authority. That authority was rarely used before March 2020. 

Title 42 has created inaccurate statistics because repeat border crossers generally have not been processed or faced legal consequences other than being returned across the U.S.-Mexico border. As a result, "The number of total encounters overstates the number of unique people attempting to cross the border," according to U.S. Customs and Border Protection (CBP). Many border crossers are Mexicans seeking work who attempt the northward journey multiple times, as jobs are plentiful in America, but legal work visas are scarce. Because ports of entry have been generally closed to asylum seekers due to Title 42, groups of people seeking protection entered the U.S. unlawfully and presented themselves to Border Patrol agents, further increasing the numbers.

If Title 42 had not been in effect, CBP apprehensions at the southwest border likely would have been about 1.2 million in FY 2021 and below 1.6 million in FY 2022, according to an analysis in an upcoming report by the National Foundation for American Policy (NFAP), of which I am the executive director. (The record for apprehensions was 1.64 million in FY 2000.) The NFAP estimates maintaining Title 42 resulted in approximately 471,000 more encounters at the southwest border in FY 2021 and about 627,500 more in FY 2022.

The Biden administration fell into the trap of letting its opponents define the terms of the debate. After Biden officials decided to stop using Title 42, the Supreme Court ordered the authority to stay in place while it waits to hear arguments on the standing of states trying to force the Biden administration to keep using Title 42.

Arranging care for asylum seekers would have been necessary even with a better metric. However, managing the humanitarian flow would have been easier if the Biden administration had allowed those seeking asylum to apply in an orderly, timed fashion at a lawful port of entry. The administration has tried to correct this with a phone app allowing individuals to receive scheduled appointments at a port. It remains to be seen whether enough people will be allowed to apply daily at ports of entry to make using the app a feasible alternative. Still, the idea is sound. However, less sound is a proposed regulation that would make most individuals ineligible for asylum if they don't apply at a port of entry.

Providing the legal means of seeking relief by at least partly opening ports of entry and recently establishing parole programs accepting up to 30,000 Venezuelans and others a month (with U.S. sponsors) has reduced illegal entry. "Encounters of Cuban, Haitian, Nicaraguan, and Venezuelan non-citizens attempting to cross the southwest border unlawfully has decreased drastically since President Biden announced an expanded parole program for these individuals," according to Department of Homeland Security statistics released yesterday. "Preliminary numbers from January show that encounters of Cubans, Haitians, Nicaraguans, and Venezuelans crossing unlawfully between ports of entry at the southwest border declined 97% compared to December."

More opportunities to work legally in the U.S. and implementing a broad Western Hemisphere refugee program would be reasonable additional steps. Treating the situation at the border as a refugee crisis shifts the focus to helping people.

Members of Congress and others who oppose the Biden administration's parole program raised no objections to the Trump administration dismantling the U.S. refugee program. They also have not advocated for any other legal way for people escaping oppressive governments to enter America. Without paths to enter lawfully, it is inevitable that more people will cross into the U.S. illegally.

Texas Attorney General Ken Paxton, joined by other Republican attorneys general, filed a lawsuit over the parole program with the same U.S. district judge who blocked another significant Biden administration immigration measure. While the parole program appears to be on sound legal grounds, by halting it for a year or more, the lawsuit could prevent a successful way of providing a legal path for those escaping oppressive conditions.

In addition, the parole program is part of an agreement with Mexico. "Mexico has agreed to accept up to 30,000 migrants each month from the four countries who attempt to walk or swim across the U.S.-Mexico border and are turned back," reports PBS. "[T]he U.S. can not easily send back people from those four countries for a variety of reasons that include relations with the governments there."

The Mexican government only accepted more expelled migrants after Biden implemented the parole program. If the parole program is blocked, more individuals would be released into the U.S. rather than returned to Mexico, which those filing the lawsuit would not want. This is a foreign policy tradeoff that should not involve state attorneys general. 

Critics of the increase in CBP encounters argue, without much evidence, that individuals would not come to America if U.S. immigration policy were harsher—in other words, if Biden were more like Trump.

Despite what his supporters assert, Trump's policies did not reduce illegal immigration or discourage people from applying for asylum. Pending asylum cases rose by nearly 300 percent between FY 2016 and FY 2020 (from 163,451 to 614,751), according to Syracuse University's Transactional Records Access Clearinghouse. Apprehensions at the southwest border (a proxy for illegal entry) rose more than 100 percent between FY 2016 and FY 2019 (from 408,870 to 851,508). Apprehensions fell for several months at the start of the COVID-19 pandemic, but by August and September 2020, apprehensions returned to the approximate level of illegal entry for the same months in FY 2019.

Providing individuals with legal ways to work or seek protection in America is the only viable way to reduce illegal immigration. Treating people humanely is not a sign of weakness. Allowing for orderly entry is a smart policy consistent with America's best tradition as a nation of immigrants and refugees.


January 28, 2023 | Permalink | Comments (0)

EU wants to send more migrants away as irregular arrivals grow

In "EU wants to send more migrants away as irregular arrivals grow," for Reuters reports that "European Union ministers [this week are seeking] ways to curb irregular immigration and send more people away as arrivals rose from pandemic lows, reviving controversial ideas for border fences and asylum centres outside of Europe.

EU border agency Frontex reported some 330,000 unauthorised arrivals last year, the highest since 2016, with a sharp increase on the Western Balkans route."

As readers of the blog probably know, the EU allows relatively free migration among member nations but its the borders at its outer perimeter are robust and have been characterized as the Fortress Europe.  Enforcement of the outer borders have become more difficult with flows of refugees and migrants.  Here is a book on the subject.

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January 28, 2023 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Unwed Parents: The Limits of the Constitution by Albertina Antognini


Albertina Antognini Photo

Unwed Parents: The Limits of the Constitution by Albertina Antognini | University of Arizona Law, Journal of the American Academy of Matrimonial Lawyers, Vol. 35 - #2, 2023


As marriage has evolved to become a more egalitarian institution in both form and substance, nonmarriage remains full of antiquated norms and gendered hierarchies. The Supreme Court has interpreted the Constitution’s applicability to nonmarriage in a number of cases, including in a series addressing unwed fathers; this essay focuses on a close reading of the most recent, Sessions v. Morales-Santana, decided in 2017. In an opinion authored by Justice Ginsburg, the Court struck down the different residency lengths required of unwed mothers and unwed fathers prior to transmitting citizenship to their children as a violation of equal protection. This essay argues that Morales-Santana signals a clear break from earlier unwed fathers cases by identifying the role that law plays in constructing what had previously been presented as unassailable fact. The Court in Morales-Santana exposes a set of ostensibly factual observations as legal judgments that rely on outdated notions of fathers and mothers, and which continue to prop up laws that differentiate between parents on the basis of sex to this day. How constitutional reasoning leads to these outcomes must be carefully scrutinized—if not to change the law, then at least to understand how it comes to be. The point of this essay then is to reveal the mechanisms by which value judgments become hardened into constitutional axioms in order to recover them as contingent, and therefore contestable, opinions.

Part I parses the Court’s reasoning in Morales-Santana and explains how it differs from the cases that have come before it. This Part spends some time analyzing the Court’s decision to consider the unwed mixed-status family contemplated by the citizenship statutes, as opposed to remaining tethered to the American parents. This shift in perspective allows the Court to uncover the gendered assumptions that lie at the root of these laws, and renders the Court’s opinions in related areas vulnerable despite its assurances to the contrary. Part II then turns to what the Court did not do. The opinion in Morales-Santana fails to identify with any specificity the burdens that might accrue to the caretaking parent. It also ignores the ways in which same-sex couples are affected by, and could have helped challenge, the heteronormative family the laws presume. This Part concludes by highlighting the obvious – that the decision not only implicates gender but, critically, citizenship. Yet the Court was silent with regard to the racialized history of the citizenship rules, and fashioned a remedy that wholly ignored the predicament of the respondent, Luis Ramón Morales-Santana. As such, Morales-Santana allows the discrimination it took some steps towards eradicating, to continue.


January 28, 2023 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

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.


January 27, 2023 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Should Australia let Kanye West in?

Professor Mary Crock

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).

Although he’s both a musician and rapper, Ye may be best described as a social influencer – and one with very offensive views, especially when it comes to Jewish people and the Holocaust."

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."



January 27, 2023 in Current Affairs, Music, Sports | Permalink | Comments (0)