ImmigrationProf Blog

Immigration Article of the Day: Treating Persecution Determinations in Immigration Cases as a Mixed Question of Law and Fact by Eric Guo

Treating Persecution Determinations in Immigration Cases as a Mixed Question of Law and Fact by Eric Guo

Abstract

This Note argues that courts should adopt a “mixed approach,” where the question of whether particular facts rise to the level of persecution should be treated as a mixed question of law and fact.  Substantial evidence review should be applied for questions of fact (such as whether an instance(s) of alleged harm is severe enough to be deemed persecution) and de novo review should be applied for legal questions (such as whether an alleged type of harm can be deemed to be persecution as a matter of law). This approach gives appellate courts the ability to be nuanced in their analysis, instead of being strictly bound to apply one standard of review over another for every single case, thereby reducing the inequity borne by petitioners who have no ability to choose which federal circuit they can appeal to.

KJ

Maria Hinojosa and Bill Hing Book Event, Manhattan, October 17, 2024

Maria Hinojosa and Bill Hing on Immigration and Justice in America

Thursday
October 17th
6:30pm

 

McNally Jackson Soho

134 Prince St.

RSVP Required — here

 

Join writers and advocates Maria Hinojosa and Bill Hing for a discussion of immigration and justice in America, and celebrate their respective books: Hinojosa's memoir Once I Was You and Hing's recent work Humanizing Immigration. 

About Once I Was You: The Emmy Award–winning journalist tells the story of immigration in America through her family’s experiences and decades of reporting, painting an unflinching portrait of a country in crisis in this memoir that is “quite simply beautiful, written in Maria Hinojosa’s honest, passionate voice” (BookPage).

Maria Hinojosa is an award-winning journalist who, for nearly thirty years, has reported on stories and communities in America that often go ignored by the mainstream media—from tales of hope in the South Bronx to the unseen victims of the War on Terror and the first detention camps in the US. Bestselling author Julia Álvarez has called her “one of the most important, respected, and beloved cultural leaders in the Latinx community.”

In Once I Was You, Maria shares her intimate experience growing up Mexican American on the South Side of Chicago. She offers a personal and illuminating account of how the rhetoric around immigration has not only long informed American attitudes toward outsiders, but also sanctioned willful negligence and profiteering at the expense of our country’s most vulnerable populations—charging us with the broken system we have today.

An urgent call to fellow Americans to open their eyes to the immigration crisis and understand that it affects us all, this honest and heartrending memoir paints a vivid portrait of how we got here and what it means to be a survivor, a feminist, a citizen, and a journalist who owns her voice while striving for the truth.

“Anyone striving to understand and improve this country should read her story.” —Gloria Steinem, author of My Life on the Road

About Humanizing Immigration: First book to argue that immigrant and refugee rights are part of the fight for racial justice; offers a humanitarian approach to reform and abolition. 

Representing non-citizens caught up in what he calls the immigration and enforcement “meat grinder”, Bill Ong Hing witnessed their trauma, arriving at this conclusion: migrants should have the right to free movement across borders—and the right to live free of harassment over immigration status. While ultimately arguing for the abolishment of ICE, Hing advocates for change now.

With 50 years of law practice and litigation, Hing has represented non-citizens—from gang members to asylum seekers fleeing violence, and from individuals in ICE detention to families at the US southern border seeking refuge. Hing maps out major reforms to the immigration system, making an urgent call for the adoption of a radical, racial justice lens. Readers will understand the root causes of migration and our country’s culpability in contributing to those causes.

"Incisive and compelling, reflecting the painful wisdom and knowledge that Bill Ong Hing has accrued over the course of fifty years.... ”—Michelle Alexander, author of The New Jim Crow

“Humanizing Immigration is a stirring call to action, urging readers to act from a place of empathy, not fear.” —Booklist

RSVP

bh

Happy Hispanic Heritage Month!

Courtesy of National Hispanic Heritage Moth website  

It is Hispanic Heritage Month.  And the celebrations and events go well beyond Taco Tuesday.  

President Biden released a Proclamation—National Hispanic Heritage Month, 2024.

In honor of Hispanic Heritage Month, the Museum of the American Latino has a webpage with famous Latina/os.   One is  Cheech Marin:

"A Chicano comedian, actor, musician, activist, and art collector, Cheech Marín gained recognition in the 1970s as part of the comedy duo `Cheech and Chong.' Today, Marín is a strong advocate for Chicano art."

 

KJ

At the Movies: Green Border

 

Green Border

Agnieszka Holland

Poland, France, Czech Republic, Belgium, 2023

 

Winner of the Special Jury Prize at the 2023 Venice Film Festival, Green Border immediately drew controversy from the Polish government for its depiction of the European migrant crisis on the Poland-Belarus border.

 

Shot in stark black-and-white, this riveting thriller explores the intractable conflict from multiple perspectives: a Syrian family fleeing ISIS and caught between cruel border guards in both countries; young guards instructed to brutally reject the migrants; and activists who, at great risk, aid the refugees. Three-time Oscar nominee Agnieszka Holland (Europa Europa) brings an unflinching eye and deep compassion to this blistering critique of a humanitarian calamity that continues to unfold. “Holland is not merely depicting a wide range of attitudes and behaviors around the migrant crisis: She is showing us a politically effective and humane way to act. What is most extraordinary about the film is that it insists on hope—not out of sentimentality but as a discipline” (Amy Taubin, Artforum). 

 

Here is a review.

 

For Bay Area folks, Green Border is playing on various evenings in Berkeley.

 

Hat tip to Carrie Rosenbaum!

 

KJ

College-Educated Immigrants in the United States

Migration Policy Institute:  College-Educated Immigrants in the United States

By Jeanne Batalova A rising number of immigrants in the United States are college educated. Nearly half (48 percent) of recent arrivals come with a college degree, well in excess of the 36 percent for all U.S.-born adults. Immigrants are over-represented among college-educated workers in fields such as health-care support and computer operations. And international students represent about one in 20 students on U.S. college campuses. This article provides an overview of the trends in U.S. immigration of the college educated, including international students and H-1B specialty occupation workers.

KJ

Immigration Article of the Day: Child Migrant Workers: The Invisible Children? by Ewa Rejman

Child Migrant Workers: The Invisible Children? by Ewa Rejman, 52 Denver Journal of International Law & Policy 255 (2024)

Abstract

From February to December 2023, The New York Times published a series of investigative articles on child migrant workers who take jobs that are off-limits to American children and simply "disappear from the system" while companies and government officials continued to shift blame to avoid responsibility. This case study serves as a starting point for analyzing violations of child migrant workers' rights in light of child-specific risks and child-specific forms of persecution. This Article focuses on international human rights law obligations that the United States has failed to adequately fulfill and addresses potential objections to these obligations' binding character. It explains the way of identifying human rights violations and declaring a state's responsibility for them. It further identifies concrete violations of the best-interest principle, the non-discrimination norm, the right to the highest attainable standard of health, and the right to education, classifying these violations into three categories of failures-failure to respect, protect, and fulfill human rights. To this end, the Article relies on the commentaries of the U.N. Treaty Monitoring Bodies, the jurisprudence of the international tribunals, and empirical evidence on the development of the child. The Article emphasizes how the multiple and intersecting vulnerabilities that should make child migrant workers entitled to additional protection became precisely the reason why they were not granted protection and how, instead, this enabled a vicious cycle of violations.

KJ

Economic Policy Institute: Latest data show that recent immigrant population growth is not unprecedented and below historical peaks

Latest data show that recent immigrant population growth is not unprecedented and below historical peaks: New immigrants help grow the economy | Economic Policy Institute (epi.org)

Check out the latest on the immigrant population growth and the economic benefits of that population.

The current growth of the foreign-born population is not unprecedented.

 

Annual population growth by country of birth and time period

Source	Foreign Born	U.S. Born
2022–2023 ACS	3.60%	0.0%
2022–2023 CPS	3.7%	0.2%
2022–2023 CBO/CPS	4.8%	0.2%
1994–2000 CPS	5.6%	0.6%
1990–2000 Census	4.6%	0.9%

Foreign BornU.S. Born2022-2023ACS2022-2023CPS2022-2023CBO/CPS1994-2000CPS1990-2000Census0246%

 

ChartData

KJ

Borders and the Exchange of Humans for Debt: Borders and debt are new instruments of violence in a system that has had many names

Wealthy States Outsource Their Borders to Poorer, Indebted States / Heba Gowayed

This Is Hell!

Play

 

 

In this podcast, Heba Gowayed discusses her In These Times article, "Borders and the Exchange of Humans for Debt: Borders and debt are new instruments of violence in a system that has had many names." Gowayed is an Associate Professor of Sociology at CUNY Hunter College. 

KJ

Trump/Vance Ticket Benefit from False Migrant Stories, Small Town Suffers

The Trump/Vance ticket for the White House remains in the news for propagating falsehoods about immigrants abusing pets in Springfield, Ohio.  The dynamic duo apparently like the attention being paid to the issue of immigration during the campaign.  See Trump Team: ‘We’ll Take The Hit’ on Cat Eating to Keep Immigration in the News.  However, the attacks on Haitian migrants are having human impacts on the people of Springfield, Ohio.  See Five days in Ohio: False immigrant rumors threaten to unravel an American town on the upswing; Springfield cancels CultureFest as immigration controversy stokes threats, safety concerns.

KJ

Immigration Article of the Day: Immigration in the Shadow of Death by Eunice Lee

Immigration in the Shadow of Death by Eunice Lee, 26 University of Pennsylvania Journal of Constitutional Law 126 (2023).

Abstract

In this piece, I examine the immigration enforcement and adjudication system as a whole from the perspective of life and death. Drawing upon social theory frames as well as legal scholarship, I look to how doctrines and laws continually devalue and risk noncitizens' lives. Although scholarly work has examined how differing aspects of immigration law and enforcement take lives-e.g., via detention, cross-border shootings, and deportation explorations have yet to consider the system as a whole from this perspective. My contribution illuminates how laws as well as legal doctrines serve as mechanisms for assigning differential value to human life, ultimately taking immigrants' lives. They do so in part by normalizing death as the inevitable cost of upholding the rule of law. And yet, there is nothing normal or inevitable about the myriad policy choices, statutory provisions, and evacuations of constitutional protection that undergird immigration law and enforcement. These choices form an architecture that, in the words of Achille Mbembe, "subjugate(s) life to the power of death." I consider death by design, death by enforcement, death by denial, and death by expulsion-then show how jurisprudence and laws accept and contribute to these deaths. In the final sections of my paper, I consider how we might dismantle the assumptions, laws, doctrines that devalue and take noncitizen life throughout our immigration system.

KJ

Immigration Article of the Day: In Continuation of a ‘Unified Immigration Agenda’: The End of Asylum at the Southwest Border by Sophie Capicchiano Young

In Continuation of a ‘Unified Immigration Agenda’: The End of Asylum at the Southwest Border by Sophie Capicchiano Young

Abstract

Through a complementary framework of laws, policies, and practices, the Biden administration has built upon the immigration agenda of previous US administration, restricting the right to seek asylum for those arriving at the Southwest border almost entirely.  Principally, it has expanded certain laws and policies implemented by the Trump administration - some of which it has vigorously defended in court – and implemented new laws and policies, specifically a Final Rule entitled ‘Circumvention of Lawful Pathways,’ which limits asylum but for the most exceptional circumstances.  As this article demonstrates, those exceptional circumstances have been interpreted and applied by Customs and Border Patrol officers in terms even narrower than the Final Rule permits.  

The restriction of asylum has been realised through two specific modifications of US immigration law and by extension, fundamental precepts of international refugee law: the conflation of asylum seekers and migrants as classes of individual subject to undifferentiated legal processes, and through the qualification of asylum based on mode of arrival, specifically, arrival by land at the Southwest border having already passed through another Central American state – a condition that applies to all land arrivals by non-Mexican nationals.  

Through an analysis of quantitative data, and a series of qualitative interviews with legal service providers, shelter providers, independent researchers at US PoEs including at San Ysidro, Brownsville, Hidalgo, Laredo, and El Paso, and a former senior US Border Patrol agent, this article demonstrates that the implementation of the Biden administration’s immigration agenda and the practice of Customs and Border Protection officers forms part of a ‘unified immigration agenda’ of multiple sequential US administrations, the purpose of which is to restrict access to asylum, create conditions unconducive to spontaneous arrival at the Southwest border, and impose extreme hardships on those that enter the US.  The Biden administration has continued to pursue the unified immigration agenda by implementing Circumvention of Lawful Pathways, creating extreme dangers for asylum seekers arriving at the Southwest border, and essentially ending the provision of asylum, even for those that are clearly in need of protection.

KJ

The KKK and U.S. Immigration Law

 

I have been looking at the role of the KKK in supporting federal immigration legislation, including the Immigration Act of 1924 and its national origins quotas system.  Two relatively recent books lay out important history of the Klan in the 1920s, an era in which the KKK was a legitimate political player and deeply integrated into the political and social fabric of many communities, north and south.

Linda Gordon, The Second Coming of the KKK: The Ku Klux Klan of the 1920s and the American Political Tradition (2017)

The KKK of the 1920s had millions of members outside the South. It targeted Catholics and Jews as well as Blacks, and had great success at electing governors and congressmen. It passed immigrant restrictions that remained in effect until 1965.  Historian Linda Gordon explains HERE her book The Second Coming of the KKK: The Ku Klux Klan and the American Political Tradition. 

 

A Fever in the Heartland:  The Ku Klux Klan's Plot to Take Over America, and the Woman Who Stopped Them by Timothy Eagan (paperback – June 2024)

 Here is the publisher's summary of the book:

"The Roaring Twenties--the Jazz Age--has been characterized as a time of Gatsby frivolity. But it was also the height of the uniquely American hate group, the Ku Klux Klan. Their domain was not the old Confederacy, but the Heartland and the West. They hated Blacks, Jews, Catholics and immigrants in equal measure, and took radical steps to keep these people from the American promise. And the man who set in motion their takeover of great swaths of America was a charismatic charlatan named D.C. Stephenson.

Stephenson was a magnetic presence whose life story changed with every telling. Within two years of his arrival in Indiana, he’d become the Grand Dragon of the state and the architect of the strategy that brought the group out of the shadows – their message endorsed from the pulpits of local churches, spread at family picnics and town celebrations. Judges, prosecutors, ministers, governors and senators across the country all proudly proclaimed their membership. But at the peak of his influence, it was a seemingly powerless woman – Madge Oberholtzer – who would reveal his secret cruelties, and whose deathbed testimony finally brought the Klan to their knees.

A FEVER IN THE HEARTLAND marries a propulsive drama to a powerful and page-turning reckoning with one of the darkest threads in American history."

 

KJ

Latino USA: The Moving Border by Maria Hinojosa

 

Mexico wants to be a ‘destination’ for asylum seekers rather than a transit nation. "Last year more than 70,000 asylum petitions were filed, double the amount from the year prior. International refugee advocates say Mexico is struggling to actually provide a safe haven for these vulnerable migrants… many who are applying not because they feel any safer in Mexico, but because they see no viable way to reach the northern border. And they say the U.S. has followed a global trend of wealthier countries pursuing—and paying for— policies of ‘externalization’ that push migrants into poorer and less safe countries, rather than, rather than hosting refugees themselves."

In the Moving Border Part 2: The South Maria Hinojosa for Latino USA visits Tapachula, a city on the Mexico/Guatemala border in search of a young man from Honduras who has tried repeatedly to make it to the United States.   "And we learn just how devastating this policy can be for someone whose life is in constant risk."

 

Here is Part One of the series.

KJ

President Biden Pushes Back on Anti-Haitian Fabrications

It was newsworthy week in the 2024 presidential campaign cycle.  I realized that it been a while since we had heard from President Joe Biden, who just a few weeks ago was at the center of the storm.

CNN reports that President Bidenn yesterday celebrated the contributions of Black Americans and offered criticism of former President Donald Trump’s disparagement of Haitian migrants during a Black Excellence brunch hosted at the White House. 

Biden condemned the false claim promoted by Trump at this week’s presidential debate that Haitian migrants are stealing and eating other people’s pets.  

“I want to take a moment to say something. Like so many Americans — like (press secretary) Karine (Jean-Pierre), as you point out, a proud Haitian American, a community that’s under attack in our country right now. It’s simply wrong. And there’s no place in America. This has to stop — what he’s doing — has to stop,” Biden said as he began his remarks. 

 

KJ

Immigration Article of the Day: Denouncing Medical Practices That Imperil Unaccompanied Youth by Sarah J. Diaz & Lauren Heidbrink

Denouncing Medical Practices That Imperil Unaccompanied Youth by Sarah J. Diaz & Lauren Heidbrink

Abstract

Unaccompanied children detained in the US are subject to questionable medical practices to verify their age. Utilizing molar dental radiographs and wrist x-rays to determine their age is scientifically and ethically problematic. Age redetermination is deeply consequential for unaccompanied children, as it may result in transfer to adult detention; ineligibility for child-specific legal relief; removal of custodial protections; and imminent deportation. The medical and public health communities have an opportunity to end the perversion of medical evidence in children's immigration cases by uniformly denouncing this practice. Unaccompanied children Uee violence, persecution and poverty from around the globe and seek safety in the United States. The vast majority are teenagers, often arriving with few possessions-a small backpack, phone numbers written on slips of paper sewn into the seams of their clothes. Few have identity documents or birth certiPcates; some arrive empty handed. Within 72 hours of apprehension, US Customs and Border Protection must transfer unaccompanied minors to the care and custody of the O]ce of Refugee Resettlement (ORR). At any point in federal custody, unaccompanied children can be subject to controversial medical exams to redetermine their age. Age redetermination leads to their immediate transfer to adult detention and a loss of the few legal protections afforded to minors.

KJ

From the Bookshelves . . .Private Violence: Latin American Women and the Struggle for Asylum

Michele Waslin and Carol Cleaveland have a forthcoming book, Private Violence: Latin American Women and the Struggle for Asylum.

The book presents the stories of 46 women from Central America who were forced to flee their homes because of horrific domestic or gang violence and are in the midst of the asylum process in the United States. The book tells the women’s histories prior to crossing the border, and the legal strategies they use to convince immigration judges that rape and other forms of “private violence” should merit asylum despite laws built on Cold War era assumptions that persecution occurs in the public sphere by state actors. The book also relies on interviews with immigration judges and attorneys and court observations.

The book will be published by NYU Press on October 15, 2024.

Private Violence can be pre-ordered through NYU Press here. 

IE

From the Bookshelves: Responses to Sea Migration and the Rule of Law by Katia Bianchini

Responses to Sea Migration and the Rule of Law by Katia Bianchini

The publisher's abstract:

"In the current debates on sea migration there is a dearth of works drawing on the rule of law. This important book addresses this failing.

Considering the question from that conceptual framework, it is able to broaden the sometimes fragmented and incomplete perspective of existing scholarship. The book takes as its central case study the experience of Italy, exploring the legal issues at play there and its institutional practices and policies. From here its focus broadens out to the wider EU experience, looking in particular at those problems common to southern EU states, such as failures and delays in assisting migrants in distress at sea and contested legal grounds and practices concerning interceptions at sea. It combines both legal and empirical data, charting both the black letter law and how it operates in practice.

In a field as complex as this, this clarity is key; it allows lawyers, political scientists and policymakers to truly engage with the challenges sea migration poses today.

Table of Contents

Part 1
1. Introduction and Scope of the Book
2. The Rule of Law as a Critical Lens
3. International and EU Legal Frameworks Relevant to Sea Migration
Part 2
4. Failures and Delays in Assisting Migrants in Distress at Sea
5. Contested Legal Grounds and Practices Concerning Interceptions at Sea
6. Legal Provisions, Policies, and Case Law on NGOs Engaged in Search and Rescue Activities
Part 3
7. Final Reflections
List of Interviews
List of NGOs Engaged in Search and Rescues in the Mediterranean
Glossary
Bibliography"

 

KJ

The Anti-Immigrant State Legislative Boom Since 2020

A new report highlights the increase in state immigration legislation over the past four years, reports Camilo Montoya-Galvez and Fin Gómez of CBS News.  

The League of United Latin American Citizens (LULAC) counted 233 state bills in 2024 compared to 132 in 2023 and 64 in 2022. The legislation includes policies around cooperation efforts between state law enforcement and federal immigration authorities as well as the criminalization of unauthorized entry into the country. 

"You really see activist governors and attorneys general that are basically trying to address these issues on their own, instead of, quite frankly, working in a bipartisan way through Congress to pass comprehensive immigration reform," said Juan Proaño, LULAC's CEO. 

KJ

The Daily: The Story Behind "They are Eating The Pets"

Today, the Daily podcast looks at the story that is dominating the news waves this week:

"At this week’s presidential debate, Donald J. Trump went into an unprompted digression about immigrants eating people’s pets. While the claims were debunked, the topic was left unexplained.

Miriam Jordan, who covers the impact of immigration policies for The Times, explains the story behind the shocking claims and the tragedy that gave rise to them."

KJ

False Claims Matter: Haitian Migrants in Ohio Under Seige

 

Republican presidential candidate Donald Trump and Vice President candidate JD Vance have blamed Haitian migrants in Springfield, Ohio of eating pets.  Their words are having consequences.

Yesterday, the city hall building in Springfield, Ohio was evacuated after receiving a bomb threat, just days after former President Donald Trump shared false claims about migrants living there.

Multiple agencies and media outlets “were alerted to” the bomb threat directed at Springfield City Hall and other buildings via an email . . ., according to a statement from city government. The threat prompted “an immediate response from local and regional law enforcement.”

The buildings were evacuated as a safety precaution, Springfield Police Chief Allison Elliott said at a press conference. The source of the threat remains unclear, but authorities have opened an investigation.

“Springfield is a community that needs help,” Springfield Mayor Rob Rue told the Washington Post that the threats had used “hateful language” towards Haitians and immigrants.

Around 12,000 to 15,000 immigrants live in the county surrounding Springfield, ABC News reported.

KJ