Tuesday, June 15, 2021
Amazingly enough, the European Union for seven decades has allowed for the free movement of people among its member nations. In Borderless Europe: Seven Decades of Free Movement, Saara Koikkalainen for the Migration Policy Institute notes that "[b]etween Brexit and COVID-19, Europe’s 31-country zone of free movement has been profoundly tested. Still, the area has constantly evolved over the last 70 years, to include new groups of individuals who can freely move for work, study, or leisure, as well as cover larger geographic areas. This article examines the history and challenges to free movement, a crowning success of the European project."
"After years of expansion, however, the free-movement zone has come under tremendous strain over the last decade. The United Kingdom’s withdrawal from the European Union, which was sparked largely by concerns about intra-European migration, and border restrictions imposed amid the COVID-19 pandemic have profoundly tested the notion of barrier-free European movement."
CALL FOR PAPERS
“New Voices in Immigration Law”
Association of American Law Schools · Section on Immigration Law
Wednesday, January 5 – Sunday, January 9 (session timing TBD) · Virtual
Submission Deadline: August 15, 2021
The Section on Immigration Law of the Association of American Law Schools invites papers and works in progress for its “New Voices in Immigration Law” session at the 2022 AALS Annual Meeting which will take place virtually January 5-9, 2022. This session has not yet been scheduled. We will send updated information when we have it.
This session will be structured as a works-in-progress discussion, rather than as a panel. Selected papers will be discussed in turn, with time for author comments, thoughts from a lead reader, and group discussion.
Submissions may address any aspect of immigration and citizenship law. We also welcome papers that explore these topics from alternative disciplines or perspectives.
Please note that individuals presenting at the program are responsible for their own annual meeting registration fee, though AALS anticipates offering school memberships to the virtual conference again this year.
Submission Guidelines: The deadline for submissions is August 15, 2021. Feel free to submit an abstract, a précis, or a work-in-progress. Priority will be given to individuals who have never presented an immigration law paper at the AALS Annual Meeting, works not yet published or submitted for publication, and junior scholars.
Please email submissions in Microsoft Word format to profkitjohnson at gmail.com (Subject: AALS 2022: New Voices in Immigration Law). In your email, please indicate how you meet our selection priorities.
Inquiries: Please direct any questions or inquiries to Kit Johnson (profkitjohnson at gmail.com).
This Migration Policy Institute offers a snapshot of U.S. refugees and asylees. The United States historically led the world in refugee resettlement, but was surpassed by Canada in 2018—and U.S. refugee admissions fell to a record low 12,000 in 2020. With the country now on course to rebuild resettlement capacity, this article examines the U.S. refugee and asylee populations and how they have changed over time, including key demographic characteristics.
Here is the introduction:
"While the United States has historically led the world in refugee resettlement numbers, admissions fell dramatically under President Donald Trump, whose administration increased vetting procedures and reduced the number of refugees accepted annually to record lows. In 2018 the United States fell behind Canada as the top resettlement country globally. And in fiscal year (FY) 2020, the United States resettled fewer than 12,000 refugees, a far cry from the 70,000 to 80,000 resettled annually just a few years earlier and the 207,000 welcomed in 1980, the year the formal U.S. resettlement program began."
Immigration Article of the Day: Vicarious Trauma and Ethical Obligations for Attorneys Representing Immigrant Clients: A Call to Build Resilience Among the Immigration Bar by Lindsay Harris et al.
Vicarious Trauma and Ethical Obligations for Attorneys Representing Immigrant Clients: A Call to Build Resilience Among the Immigration Bar by Lindsay Harris et al., AILA Law Journal/April 2020, Vol. 2, No. 1, pp. 2
This article analyzes the ethical obligations for attorneys representing immigrant clients and the consequences of vicarious trauma, compassion fatigue, and burnout for the immigration bar and immigrant clients. The authors identify barriers for immigration attorneys in preventing, recognizing, and responding to vicarious trauma in themselves and colleagues and suggest practical ways that the immigration bar can and should seek to build resilience.
On June 15, 2012, the Obama administration announced the Deferred Action for Childhood Arrivals (DACA) policy, which has provided relief from removal and work authorization to hundreds of thousands of young people who arrived in the United States as children. Nine years later— and despite an overwhelming support to provide them relief, Dreamers have not been provided a permanent solution to remain in the United States. Read more: The Dream Act: An Overview
The Supreme Court rejected the Trump administration's attempt to rescind DACA.
Monday, June 14, 2021
Today, USCIS issued a policy alert titled Bona Fide Determination Process for Victims of Qualifying Crimes, and Employment Authorization and Deferred Action for Certain Petitioners. Here are the "policy highlights":
- Provides that USCIS conducts an initial review of Form I-918 and will issue BFD EADs and deferred action for 4 years to petitioners for U nonimmigrant status and qualifying family members if USCIS deems their petition “bona fide”, instead of completing a full waiting list adjudication.
- Clarifies that, if USCIS determines the principal petition is bona fide, USCIS will then determine whether the principal petitioner poses a risk to national security or public safety, and finally, whether the principal petitioner warrants a favorable exercise of discretion to receive employment authorization under INA 214(p)(6) and deferred action.
- Explains that those who do not receive a BFD EAD under this initial review will proceed to the full waiting list adjudication and, if their petitions are approvable, will be placed on the waiting list for a U visa. Principal petitioners placed on the waiting list, and their qualifying family members, receive deferred action; if they have properly filed for employment authorization, they also receive an EAD valid for 4 years.
- Provides that USCIS will generally not conduct waiting list adjudications for noncitizens who have been granted BFD EADs and deferred action. Instead, their next adjudicative step will be final adjudication for U nonimmigrant status when space is available under the statutory cap.
- Explains that throughout the initial 4-year validity period for the BFD EAD and grant of deferred action until final adjudication for U nonimmigrant status, USCIS will update and review background checks at regular intervals to determine whether a principal petitioner or a qualifying family member may maintain his or her BFD EAD and deferred action. USCIS also retains discretion to update background and security checks at any time when case-specific circumstances warrant.
- Clarifies that USCIS will review all petitions, both petitioners placed on the waiting list and petitioners issued BFD EADs, in receipt date order for final adjudication of U nonimmigrant status.
- Clarifies that USCIS is adopting the decision issued by the Ninth Circuit in Medina Tovar v. Zuchowski for nationwide application. Therefore, when confirming a relationship between the principal petitioner and the qualifying family member which is based on marriage, USCIS will evaluate whether the relationship existed at the time the principal petition was favorably adjudicated, rather than when the principal petition was filed.
Over 20 years of writing, Sandoval-Strausz says "In the Heights has evolved in an ongoing dialogue with the politics of immigration in America." In response to an exclusionary immigration politics, this latest "In the Heights pulls back the lens, the wider angle transforming what was once a straightforward love story into a sweeping tale about the meaning of an immigrant neighborhood in a nation where an aging citizenry, a shrinking workforce and a declining birthrate put us in desperate need of rejuvenation."
Sandoval-Strausz recounts three rewritings of the play, each aligned to the politics of the time.
At the debut, it was a simple love story among young people. Immigration was gaining importance as the 1990s saw increasing immigrant arrivals that drove economic growth and also an anti-immigrant political outbreak. (These were the times of California Governor's Pete Wilson, "They Keep Coming" television ads, and Proposition 187, a state initiative that would have denied public benefits to undocumented immigrants and that went on to become the template for welfare reform).
The next version of "In the Heights" incorporated a new playwright Quiara Alegría Hudes who worked to enlarge the story from one about young people in love to one about a community. Hudes says they put more emphasis on characters who had come from various countries in Latin America: "The songs that centered immigration and migration the most," Hudes remembers, "were 'Carnaval del Barrio,' 'Paciencia y Fe,' and 'Inútil.' All of those songs were new."
In the aftermath of the 9/11 attacks, ensuing national backlashes to undocumented immigration, and national marches for immigration policy reform (that has still not been delivered), the political climate shifted to one demanding greater rights for the undocumented population. In that context, the Broadway show won 4 Tony Awards (including Best Musical), a Grammy, and a Pulitzer Prize nomination. The Broadway version ran for more than three years, followed by tours and international productions on five continents. Sandoval-Straucz says: "This "In the Heights," with its hopeful narrative and depiction of the neighborhood as a metonym for an immigrant-friendly nation, certainly seemed like the perfect theatrical reflection of a diversifying America." A similar vision animated Hamilton, which also won numerous Tony and other awards and was lauded for its multicultural celebration in casting, musical style, and its retelling of history.
And then the pendulum swung again witt the election of Donald Trump. As Sandoval-Strausz tells it:
But the 2016 election shattered the optimistic mood among the liberal-minded fans of Miranda's work. The cast of "Hamilton" expressed the sentiments of many Americans at a late November performance attended by vice president-elect Mike Pence, with a curtain-call speech by actor Brandon Victor Dixon: "We, sir, we are the diverse America who are alarmed and anxious that your new administration will not protect us . . . or defend us and uphold our inalienable rights, sir. But we truly hope this show has inspired you to uphold our American values and work on behalf of all of us. All of us." Pence responded with reassurances of good will, but Trump attacked the show on Twitter, calling it "overrated" and demanding that the cast apologize.
The film adaptation of "In the Heights" adapted to this new political landscape "in the shadow of Trump... and of a level of government-backed xenophobia not seen in the United States in nearly a century." The author says that Hudes explained, "When Trump became president, the rhetoric about who belongs here grew more polarized and the family separations tore our communities apart. That fueled my writing, a need to humanize and ground a more compassionate story of who gets to claim this nation." In addition to new plotlines involving "dreamers" and related issues of immigrants' legal status, the political circumstances of the movie enhanced a central tension in the plot: Will Usnavi stay in Washington Heights or return to the Dominican Republic? While past audiences might not have believed an immigrant would want to leave the United States, the doubt was now understandable. The author concludes:
So this cinematic adaptation of "In the Heights" has met its historical moment. Its fidelity to the Broadway musical means that most moviegoers will recognize their own family histories in this portrait of the barrio, with the Latinas and Latinos on the screen the latest in a long line of immigrants who have created and re-created metropolitan neighborhoods. And the new plotlines involving immigrants with uncertain legal status mean audiences will be shown a more realistic portrayal of the threats that still remain: not just to undocumented Americans, but also to the continued existence of the United States as a welcoming, pluralistic, diverse democracy.
IMDb summarizes the 2021 film In the Heights: "A film version of the Broadway musical in which Usnavi, a sympathetic New York bodega owner, saves every penny every day as he imagines and sings about a better life."
In the Heights is based on the stage musical of the same name by Quiara Alegría Hudes and Lin-Manuel Miranda. The film stars include Jimmy Smits. The film tells the story of a corner in Washington Heights neighborhood of Manhattan in New York City, where each member of the community pursues their dream of a better life. Immigration is one of the themes of the film.
"Granted, the trailer (and film) showcased Black dancers and there were certainly Black women in the hair salon, but where are the dark-skinned Black Latinx folks with a storyline? After all, this film is placed in Washington Heights, N.Y., right?!"
Hmmmm..... not a single Afro Latino??? In the Heights???? In New York???? Sounds about white(washed). https://t.co/iU0O23a2aq— 🥀Lani Del Rey🥀 (@Marlana) December 12, 2019
With a backlog of over 1.3 million cases, the 500 immigration judges in the US feel overburdened and pressured to deport
Immigration Article of the Day: The DACA decision: Department of Homeland Security v. Regents of the University of California and its implications by Brian Wolfman
The Trump Administration's effort to get rid of Deferred Action for Childhood Arrivals, or DACA, failed before the Supreme Court in Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, 1896 (2020). In this essay -- based on a presentation given to an American Bar Association section in September 2020 -- I review DACA, the Supreme Court's decision, and its potential legal implications.
The failure of the Trump Administration to eliminate DACA may have had significant political consequences, and it surely had immediate and momentous consequences on many of DACA’s hundreds of thousands of beneficiaries. Some commentators noted, however, that the Supreme Court’s ruling it is not a major legal landmark—that it involves only the application of settled administrative-law principles. I largely agree with that view. Nonetheless, the decision’s administrative-law holdings are interesting, and the Court’s ruling contains several of what I view as “extras”—little nuances that may impact the law over time and that should interest administrative-law nerds.
Sunday, June 13, 2021
Here's a tweet that really caught my eye. It's from FAIR (Federation for American Immigration Reform), an anti-immigration organization, if you're not yet aware.
Text: Amnesty isn't a solution. It's a crime against American citizens.
Obviously, this is nonsense. But it might just be a good teaching tool. It's eye-catching. And I could imagine a really robust conversation with students breaking it down. Particularly in light of other FAIR tweets such as this one:
Text: Total number of illegal aliens AND THEIR US BORN CHILDREN: 175,000. (emphasis mine).
After all, wouldn't a pathway to regularizing the status of noncitizen parents be a benefit to US citizen children, as opposed to a "crime" against them?
All in all, intriguing to think about using in a classroom discussion of historical amnesty programs and/or present-day proposals to bring undocumented migrants out of the shadows.
The Migration Policy Institute published a policy road map as part of its series on "Rethinking U.S. Immigration Policy. The latest report is titled "Rethinking the US Legal Immigration System" (May 2021). Here is the abstract.
The U.S. legal immigration system, built on a scaffolding first established in 1952 and last significantly updated by Congress in 1990, is profoundly misaligned with demographic and other realities—resulting in enormous consequences for the country and for its economy. This misalignment is the principal cause for illegal immigration. It is also responsible for the mounting backlog in legal immigration streams, with some in the green-card queue scheduled to wait 223 years for an employment-based visa.
This road map, part of MPI’s Rethinking U.S. Immigration Policy Initiative, sketches the broad contours of some of the most needed reforms in the legal immigration system. Given population aging and changing labor market demands, the need for reform is more urgent than ever.
The policy brief offers a quick tour of the new framework that MPI is advancing. The vision includes:
- Meaningful and responsible reform of the U.S. immigration system that begins with addressing the challenge of the country’s unauthorized immigrant population, 60 percent of which has been in the United States a decade or more.
- Restructuring the employment-based system to better reflect economic and demographic realities and the behavior of employers and workers with three streams: 1) seasonal/short-term workers; 2) direct admission of immigrant workers recognized as the best and brightest in their fields as permanent residents; and 3) a new “bridge” visa as the main route for admission for most foreign workers arriving on employment visas.
- Retaining family-sponsored immigration as a major priority of the U.S. immigrant selection system, but with changes to some backlogged categories.
- Reforming the humanitarian protection system, including U.S. asylum system reform to improve efficient and fair adjudication.
- Injecting much-needed flexibility into immigration levels, with the creation of an independent expert body within government that makes recommendations on annual admissions based on careful, nonpartisan review of labor market, economic, demographic, and immigration trends.
Future reports will elaborate on these proposals. I'm especially curious about the proposal for the "bridge" visa as the main route for employment-based admission.
Immigrant Article of the Day: Missing Immigrants in the Rhetoric of Sanctuary by Ava (formerly Andrew) Ayers
The idea of sanctuary for undocumented immigrants started among activists and was soon adopted by governments. In this process, the idea changed. This Article follows sanctuary’s changing moral content by studying the reasons that states and localities give when they adopt “sanctuary” policies limiting their cooperation with federal immigration enforcement. One might expect policymakers’ statements to imply concern for the well-being of noncitizens, particularly those who face deportation. We might even expect sanctuaries’ rhetoric to imply that undocumented people should be welcomed as members of the communities in which they reside. In fact, many jurisdictions carefully avoid saying either of those things. This Article examines the implications of these unexpected silences.
Saturday, June 12, 2021
Diana Jones is a NYC based singer songwriter and her new CD Song To A Refugee (released yesterday) is a "heartfelt folk record focusing on the refugee crisis around the world as well as the border crisis." Here is the video for her song "We Believe You" (featuring Richard Thompson, Steve Earle and Peggy Seeger):
As Jones told the New York Times, “It’s important that we have people in our lives who believe us, especially for traumatized people — people who, in this case, are being demonized or ‘othered’ for wanting a safe haven and, eventually, a home.”
This song would be a truly excellent introduction to your discussion of issue of credibility in asylum cases.
The American Bar Association administrative law section is putting on a webinar on FOIA Challenges in Immigration. There is no CLE; there is no program charge. Registration here.
- Emily Creighton, Legal Director, Transparency, American Immigration Council
- Claudia Valenzuela, Managing Attorney, Immigration Legal Defense
- Abioye Mosheim (moderator), Assistant General Counsel and Chief FOIA Officer for CPSC
MHC (h/t Jill Family)
Today, immigrant individuals toiling with their citizen colleagues in insecure employment that Guy Standing describes as the post-industrial precariat make up the vanguard of the struggle to protect labor rights.Government officials have honored care workers as essential service employees in the COVID-19 pandemic even as they continue to lack many basic labor protections. Immigrant care workers on the frontlines in the service and health care sectors face occupational illness and death with minimal safeguards provided by employers. This paper argues that labor movement activists of the immigrant community are motivated by the well-being of the mixed-citizenship communities where they have laid down roots. Their exemplary citizenship is exhibited by their willingness to assume the risks that come with labor organizing, including wage losses, termination of employment, and threats of deportation, for the benefit of a mixed citizenship status community of workers. In the process, they are overcoming the racial, gender, occupational, and national origins exclusions of traditional “business unions,” which only recently included immigrants and care workers in their ranks.
Friday, June 11, 2021
Need a summer read? Try The Book of Rosy: A Mother's Story of Separation at the Border by Rosayra Pablo Cruz & Julie Schwietert Collazo. Here's the publisher's pitch:
Compelling and urgently important, The Book of Rosy is the unforgettable story of one brave mother and her fight to save her family.
When Rosayra “Rosy” Pablo Cruz made the agonizing decision to seek asylum in the United States with two of her children, she knew the journey would be arduous, dangerous, and quite possibly deadly. But she had no choice: violence—from gangs, from crime, from spiraling chaos—was making daily life hell. Rosy knew her family’s one chance at survival was to flee Guatemala and go north.
After a brutal journey that left them dehydrated, exhausted, and nearly starved, Rosy and her two little boys arrived at the Arizona border. Almost immediately they were seized and forcibly separated by government officials under the Department of Homeland Security’s new “zero tolerance” policy. To her horror Rosy discovered that her flight to safety had only just begun.
In The Book of Rosy, with an unprecedented level of sharp detail and soulful intimacy, Rosy tells her story, aided by Julie Schwietert Collazo, founder of Immigrant Families Together, the grassroots organization that reunites mothers and children. She reveals the cruelty of the detention facilities, the excruciating pain of feeling her children ripped from her arms, the abiding faith that staved off despair—and the enduring friendship with Julie, which helped her navigate the darkness and the bottomless Orwellian bureaucracy.
A gripping account of the human cost of inhumane policies, The Book of Rosy is also a paean to the unbreakable will of people united by true love, a sense of justice, and hope for a better future.
Immigration Article of the Day: The Case for Chevron Deference to Immigration Adjudications by Patrick J. Glen
The Case for Chevron Deference to Immigration Adjudications by PatricJ. Glen. Duke Law Journal Online forthcoming
Chevron skepticism is in vogue in legal academia, as Professors Shoba Wadhia and Christopher Walker’s recent entry in the genre demonstrates. They place their project within the broader academic trend of arguing for limitations on the application of deference to various administrative decisions, but their aim is ultimately narrower—to show that “this case against Chevron has * * * its greatest force when it comes to immigration.”
The Professors are incorrect. Immigration adjudication presents one of the strongest cases for deference to administrative adjudication. This case is founded in the text of the statute itself and its myriad general and specific delegations of authority to the Attorney General, the expertise of the agency which has honed its interpretive enterprise through adjudicating tens of thousands of cases annually, and the ultimate political accountability of the agency head in immigration adjudication. For these reasons, the Supreme Court has applied Chevron deference to immigration adjudications since the very foundation of that framework. Although they advance an interesting contrarian thesis, the Professors ultimately provide no sound basis for retreating from four decades of established jurisprudence.
Rebecca Beitsch for the Hill reports that 60 House Democrats in a letter have called on Attorney General Merrick Garland to make changes to an immigration court system dramatically altered by the Trump administration. The text of the letter is available here.
In in an effort led by Representative Pramila Jayapal (D-Wash.), the 60 members urgie Garland to take a number of actions, ranging from blanket removal of cases from the docket to unwinding a number of decisions they say politicized the immigration court system. Here is Jayapal's office press release on the letter.
The letter is signed by U.S. Representatives:
Jerrold Nadler, Alma S. Adams, PhD, Karen Bass, Joyce Beatty, Jamaal Bowman, Ed.D., Julia Brownley,Tony Cárdenas, Andre Carson. Joaquin Castro, Judy Chu, Gerald E. Connolly, Jason Crow, Danny K. Davis, Mark DeSaulnier, Adriano Espaillat, Ruben Gallego, Jesús G. “Chuy” García, Sylvia R. Garcia, Jimmy Gomez, Al Green, Raul M. Grijalva, Jahana Hayes, Sheila Jackson Lee, Hakeem Jeffries, Henry C. “Hank” Johnson, Jr., Mondaire Jones, Marcy Kaptur, Rick Larsen, Barbara Lee, Ted W. Lieu, Alan Lowenthal, Carolyn B. Maloney, James P. McGovern, Gregory W. Meeks, Grace Meng, Grace F. Napolitano, Marie Newman, Eleanor Holmes Norton, Alexandria Ocasio-Cortez, Ilhan Omar, Frank Pallone, Jr., Jimmy Panetta, Mark Pocan, Ayanna Pressley, David E. Price, Jamie Raskin, Lucille Roybal-Allard, Linda T. Sánchez, Jan Schakowsky, Adam Smith, Darren Soto, Mark Takano, Dina Titus, Norma Torres, Ritchie Torres, Juan Vargas, Nydia M. Velázquez, Bonnie Watson Coleman, and Frederica S. Wilson.
Thursday, June 10, 2021
The U.S. Court of Appeals for the Second Circuit has announced the passing of Judge Robert A. Katzman (1953-2021). Judge Katzman had a long and storied career. Among his many passions, Judge Katzman thought hard about the inadequate representation of noncitizens in immigration proceedings and took action to provide counsel by helping to found the Immigrant Justice Corps. As the announcement summarizes:
During his early years on the bench, Judge Katzmann witnessed firsthand the inadequate legal representation of non-citizens in immigration proceedings and the adverse impact of inadequate representation on the fair and effective administration of justice. In 2007, he delivered the Marden Lecture at the New York City Bar Association, The Legal Profession and the Unmet Needs of the Immigrant Poor, drawing attention to the profound lack of quality legal representation for the immigrant poor. As he put it, some immigration attorneys “do not even meet with their clients to flush out all the relevant facts and supporting evidence, or prepare them for their hearings.” Taking money from those with meager resources, he said, such lawyers “undermine trust in the American legal system, with damaging consequences for the immigrants’ lives.” Katzmann thereafter organized an interdisciplinary Study Group on Immigrant Representation in 2008 to address the challenges of inadequate counsel. The Study Group brought together key actors from advocacy groups, the private bar, and the government, including immigration judges, and its efforts led to the institution of the New York Immigrant Family Unity Project, which launched in 2013 to provide representation to non-citizens in New York who are detained, indigent, and facing deportation, and also to the creation, in 2014, of the non-profit Immigrant Justice Corps, a fellowship program for recent law school and college graduates directed at meeting the need for quality representation. The Study Group’s efforts and the Immigrant Justice Corps have led to much improvement in terms of access to justice in New York and across the nation for detained and other indigent immigrants.