Wednesday, January 20, 2021
The Biden Administration this morning released a fact sheet on the Executive Orders it will issue later today. The immigration items are listed below:
Reverse President Trump’s Executive Order Excluding Undocumented Immigrants from the Reapportionment Count
President-elect Biden will sign an Executive Order to revoke the prior Administration’s orders setting out an unlawful plan to exclude noncitizens from the census and apportionment of Congressional representatives. President-elect Biden will ensure that the Census Bureau has time to complete an accurate population count for each state. He will then present to Congress an apportionment that is fair and accurate so federal resources are efficiently and fairly distributed for the next decade.
Preserve and Fortify Protections for Dreamers
In 2012, the Obama-Biden administration adopted Deferred Action for Childhood Arrivals (DACA) to provide temporary relief from deportation on a case-by-case basis to Dreamers, young people who were brought to this country as children. Since then, more than 700,000 young people have applied for this relief and met rigorous requirements and background checks. Many are serving our country in the armed services or as essential workers on the front lines of the pandemic. The Trump administration has tried to terminate DACA since 2017, but the U.S. Supreme Court rejected that effort and required reconsideration of that decision. The program continues, accepting new applications and renewing DACA for those who qualify under the 2012 requirements. But those opposed to DACA continue to challenge the program, threatening its continuance. The president-elect is committed to preserving and fortifying DACA. Today, he will sign a Presidential Memorandum directing the Secretary of Homeland Security, in consultation with the Attorney General, to take all appropriate actions under the law to achieve that goal. The Presidential Memorandum will also call on Congress to
enact legislation providing permanent status and a path to citizenship for people who came to this country as children and have lived, worked, and contributed to our country for many years.
Reverse the Muslim Ban
The president-elect will sign an Executive Action putting an end to the Muslim Ban, a policy rooted in religious animus and xenophobia. It repeals Proclamations 9645 and 9983, which restrict entry into the United States from primarily Muslim and African countries, and instructs the State Department to restart visa processing for affected countries and to swiftly develop a proposal to restore fairness and remedy the harms caused by the bans, especially for individuals stuck in the waiver process and those who had immigrant visas denied. This is an important step in providing relief to individuals and families harmed by this Trump Administration policy that is inconsistent with American values. The Executive Action also provides for the strengthening of screening and vetting for travelers by enhancing information sharing with foreign governments and capacity building with our partners, and directs reviews of other Trump Administration “extreme vetting” practices.
Repeal of Trump Interior Enforcement Executive Order
President-elect Biden will sign an Executive Order revoking a Trump Executive Order that directed harsh and extreme immigration enforcement. This revocation will allow the Department of Homeland Security and other agencies to set civil immigration enforcement policies that best protect the American people and are in line with our values and priorities.
Stop Border Wall Construction
Bipartisan majorities in Congress refused in 2019 to fund President Trump’s plans for a massive wall along our southern border, even after he shut down the government over this issue. He then wastefully diverted billions of dollars to that construction. By proclamation, President-elect Biden will today declare an immediate termination of the national emergency declaration that was used as a pretext to justify some of the funding diversions for the wall. The proclamation directs an immediate pause in wall construction projects to allow a close review of the legality of the funding and contracting methods used, and to determine the best way to redirect funds that were diverted by the prior Administration to fund wall construction.
Deferred Enforced Departure for Liberians Presidential Memorandum
The president-elect will sign a Presidential Memorandum to extend until June 30, 2022 the long-standing Deferred Enforced Departure (DED) designation for Liberians who have been in the United States for many years. Liberians with DED will also have their work authorization extended. This PM also directs the Secretary of Homeland Security to ensure that Citizen Immigration Services facilitates ease of application and timely adjudication for Liberians applying for residency by the Liberian Relief and Fairness Act.
Duckworth Asks President Biden to Prohibit Deportation of Veterans and Strengthen Naturalization Process for Servicemembers
[WASHINGTON, D.C.] — Combat Veteran and U.S. Senator Tammy Duckworth (D-IL) is urging President Joe Biden to take immediate action to prevent the deportation of Veterans, repatriate deported Veterans, strengthen the military naturalization process and remove barriers to accessing VA care faced by Veterans living broad.
In part, the Duckworth wrote: “Immigrant servicemembers possess critical skills that enhance military readiness, strengthen national security and protect our homeland. That is why, for over 200 years, Congress has provided servicemembers an expedited path to citizenship and both Democratic and Republican administrations have worked to streamline the naturalization process for servicemembers. In a period of armed conflict, such as now, Congress specifically intended for servicemembers to naturalize as soon as they entered service and prior to deployment.”
Duckworth continued: “As your administration begins working to improve our Nation’s immigration system, I ask you to prioritize military and Veteran naturalizations as well as bringing deported Veterans home to the United States where they belong. The United States relies on immigrant servicemembers in all sectors within the military, and it is clear that the government must better support and protect them. Thank you in advance for your consideration of this request.”
Duckworth has been active in protecting Veterans from deportation and helping those who have been deported gain citizenship and access to important VA services. Last Congress, she introduced the Strengthening Citizenship Services for Veterans Act, legislation that would ensure deported Veterans who have successfully completed the preliminary naturalization process can attend their citizenship interview at a port of entry, embassy or consulate without navigating the complex process of advance parole. Duckworth also introduced legislation to prohibit the deportation of Veterans who are not violent offenders, give legal permanent residents a path to citizenship through military service and strengthen VA healthcare services for Veterans. In 2019, Duckworth traveled to Tijuana, Mexico, on Veterans Day to meet with a group of Veterans who have been deported to hear about their efforts to access the VA healthcare benefits they’ve earned.
A full copy of the letter is available here.
Yesterday, then-President Trump (!) issued a Presidential Memorandum on Deferred Enforced Departure for Certain Venezuelans.
The memo states that "it is in the foreign policy interest of the United States to defer the removal of any national of Venezuela, or alien without nationality who last habitually resided in Venezuela, subject to the conditions and exceptions provided below."
The deferral applies to Venezuelans in the U.S. today who have been here for 18 months, but not those who:
(1) have voluntarily returned to Venezuela or their country of last habitual residence outside the United States;
(2) have not continuously resided in the United States since January 20, 2021;
(3) are inadmissible under section 212(a)(3) of the Immigration and Nationality Act (INA) (8 U.S.C. 1182(a)(3)) or removable under section 237(a)(4) of the INA (8 U.S.C. 1227(a)(4));
(4) who have been convicted of any felony or 2 or more misdemeanors committed in the United States, or who meet the criteria set forth in section 208(b)(2)(A) of the INA (8 U.S.C. 1158(b)(2)(A));
(5) who were deported, excluded, or removed, prior to January 20, 2021;
(6) who are subject to extradition;
(7) whose presence in the United States the Secretary of Homeland Security has determined is not in the interest of the United States or presents a danger to public safety; or
(8) whose presence in the United States the Secretary of State has reasonable grounds to believe would have potentially serious adverse foreign policy consequences for the United States.
Beyond deferral of removal, benefitting Venezuelans will also receive work authorization.
Today, President Joe Biden revealed the details of the U.S. Citizenship Act of 2021, a legislative proposal to transform the American immigration system. It includes an eight-year path to citizenship for undocumented immigrants and an expedited path for DACA recipients, Temporary Protected Status holders, and agricultural workers. The bill would additionally use various tools to establish safe, orderly migration and humanitarian protection channels from Central America and increase accountability and transparency in immigration enforcement.
The bill , of course, is just the opening of what will likely be a long process toward enactment of immigration reform.
After the announcement, Tom Jawetz, vice president of Immigration Policy at the Center for American Progress, issued the following statement:
"The Trump administration made full use of its administrative authorities to weaponize the dysfunction long embedded in the country’s immigration system. While the Biden administration has already begun to lay out plans to similarly use administrative action to repair the damage done and build a more fair, humane, and workable system, it is heartening to see that it is simultaneously working to tackle problems with the underlying system itself. By presenting this proposal to Congress for introduction, President Biden has not only fulfilled a campaign promise but is also showing that building a better American immigration system will be a top priority of his administration.
Central to the president’s proposal is a path to citizenship for an estimated 10.4 million undocumented immigrants in the country today—individuals and families that have experienced four years of cruelty and violations of the rule of law. Among these individuals are an estimated 5 million who have been on the front lines of the coronavirus pandemic as essential workers, risking their own lives to keep the country running, as well as 1.3 million of their spouses and minor children. Notably, a number of the provisions in the bill that could play an important role in the administration’s constructive engagement with Central American countries—including the restoration of the Central American Minors program and the creation of family reunification parole programs—can be achieved even in the absence of legislative reform. We applaud the work that went into producing this bill and look forward to seeing it enacted into law."
Joe Biden nominated Alejandro Mayorkas, former director of Citizenship and Immigration Services in the Obama administration, to be Secretary of the Department of Homeland Security. His nomination has hit a bit of a delay in his confirmation hearing yesterday, about which Ming Chen has blogged.
Andrew Desiderio for Politico explains the objections of Senator Josh Hawley (R-MO) to Mayorkas's nomination:
"While Mayorkas will likely have enough votes to secure confirmation on the Senate floor, he was pressed during the hearing Tuesday about a 2015 inspector general report charging that he displayed `an appearance of favoritism and special access' for certain visa recipients. The report alleged serious abuses with the EB-5 visa process in particular, accusing Mayorkas of giving preferential treatment to political allies.
While Republicans were not adversarial with Mayorkas, they focused intently on the IG report."
Eric Katz for Government Executive further explains: ""Republicans largely focus[ed] on a 2015 inspector general report that found the DHS secretary-designate created the appearance of improper political influence when he intervened in various cases before U.S. Citizenship and Immigration Services while he was the agency’s director."
On his last day in office, President Trump in a flurry of pardons has pardoned former strategist Steve Bannon, who was indicted last year in a border wall fraud scheme. Josh Dawsey and Matt Zapotosky report for the Washington Post that,
"President Trump has pardoned Stephen K. Bannon, the firebrand architect of his 2016 campaign who was charged last year with defrauding donors to a private fundraising effort for construction of a wall on the U.S.-Mexico border, the White House announced early Wednesday.
Trump approved Bannon’s pardon late Tuesday, after days of frantic deliberations. Some aides said as recently as Monday night that the move appeared unlikely. Trump vacillated throughout the day Tuesday, and even after he said he was going to sign off on the pardon, it remained unclear for some time that he would actually do so, the official said, speaking on the condition of anonymity to discuss internal conversations."
Immigration Article of the Day: The Institutional Hearing Program: A Study of Prison-Based Immigration Courts in the United States by Ingrid V. Eagly & Steven Shafer
This article presents the findings of the first research study of the Institutional Hearing Program (IHP), a prison-based immigration court system run by the U.S. Department of Justice. Although the IHP has existed for four decades, little is publicly known about the program’s origin, development, or significance. Based on original analysis of archival records, this study makes three central contributions. First, it traces the origin and growth of the IHP within federal, state, and municipal correctional facilities. Notably, although the IHP began in 1980 as a program to deport Cuban asylum seekers held in civil detention in an Atlanta prison, it now operates to deport noncitizens serving prison sentences in twenty-three federal prisons, nineteen state prison systems, and a few municipal jails. Second, this article uncovers the crucial role that prison-based immigration courts have played in shaping the design of carceral institutions around the priorities of an immigration system that primarily targets Latinos for deportation. Third, this article shows how immigration courts embedded in carceral spaces have served as influential, yet overlooked, incubators of changes to immigration law and practice that today apply to all immigration courts, not just the IHP. These findings have important implications for contemporary understandings of the relationship between immigration detention, racialized control of migration, and penal punishment.
Access to full article can be found here:
Tuesday, January 19, 2021
Alejandro Majorkas, the nominee for Department of Homeland Security (DHS) Secretary, testified before the Senate Homeland Security and Governmental Affairs Committee in his confirmation hearings. He has worked in the government for twenty years and was previously Deputy DHS Secretary and head of the US Citizenship and Immigration Services (USCIS) in the Obama administration. His family is Jewish and were refugees of the Nazis; Mayorkas was born in Cuba and raised in Southern California.
Immigration-related topics for questioning included immigration enforcement, specifically how Mayorkas would approach the U.S.-Mexico border and whether immigrants seeking economic opportunity were eligible for asylum. He was asked about Deferred Action for Childhood Arrivals, Central American asylum seekers, and border closures during COVID-19. Questions were asked about his position on funding for the Immigration and Customs Enforcement (ICE) agency, which has been a target of progressives, and about declining agency morale. Some senators raised concerns about his handling of a visa program from wealthy investors and about his work on cybersecurity, areas of focus for Mayorkas when he previously served in DHS as head of USCIS and deputy to DHS Secretary Jeh Johnson.
According to the Washington Post, many senators hoped for a fast-tracked confirmation in order to maintain national security after the capitol siege and several raised or asked questions about it. The Federal Emergency Management Agency is within the DHS. Mayorkas testified that he felt the insurrection was "horrifying" and voweed that the terror inflicted on Senators and staffers "will not happen again."
Democrats have enough votes that his confirmation is likely. But Senator Josh Hawley (R-Mo), who sits on the homeland secrutiy committee, sought to block the confirmation because he was disatisfied with Mayorkas' answers. (Mayorkas failed to receive Republican support during his confrimation for DHS Deputy Secretary in 2013).
DHS has gone without a Senate-confirmed leader for nearly two years.
WASHINGTON, Jan. 19, 2021—A federal court Monday blocked nearly all of a Trump administration rule that would have drastically increased fees in immigration proceedings in which the government seeks to deport immigrants, many of whom are long-term residents of this country.
The fee increase rule, scheduled to take effect today, would have increased the filing fees for applications, appeals, and motions in removal proceedings by as much as nearly 800%. The substantial increases would have immediately denied access to justice for economically disadvantaged individuals seeking a fair day in court.
The American Immigration Council, the National Immigration Law Center and Gibson, Dunn & Crutcher challenged the rule. The lawsuit, CLINIC v. EOIR, was filed on behalf of immigrant rights organizations and legal services providers Catholic Legal Immigration Network, Inc. (CLINIC), Kids in Need of Defense (KIND), Community Legal Services in East Palo Alto (CLSEPA), and The Coalition for Humane Immigrant Rights (CHIRLA).
The State of the Immigration Courts: Trump Leaves Biden 1.3 Million Case Backlog in Immigration Courts
TRAC Immigration reports on the growing backlog in the immigration courts:
"When President Donald Trump assumed office, 542,411 people had deportation cases pending before the Immigration Courts. At the start of 2021, that number now stands at 1,290,766—nearly two and a half times the level when Trump assumed office just four years ago. Waiting in the wings are another 300,000+ cases that President Trump's policy changes have decided aren't finally resolved, but have not yet been placed back on the active docket." (footnote omitted).
Guest Post: The “Complete Helplessness” of Matter of A-B- And One More Last Ditch Effort to Torpedo Asylum by Geoffrey A. Hoffman *
The “Complete Helplessness” of Matter of A-B- And One More Last Ditch Effort to Torpedo Asylum by Geoffrey A. Hoffman *
The latest decision from Acting Attorney General Rosen in Matter of A-B-, 28 I&N Dec. 199 (A.G. 2021) evidences, in many ways, what has been wrong about asylum adjudication under the current outgoing administration. I want to focus here on one specific strand of that wrongness: the “complete helplessness” standard as an interpretation of the “unable or unwilling to return” component of the definition of refugee as defined under the Immigration and Nationality Act, specifically INA section 101(a)(42); 8 USC s. 1101 (a)(42). The requirement that an applicant for asylum prove that they are “completely helpless” in the face of governmental inaction in their home country has never been the rule. It is derived from dicta in one Seventh Circuit decision, as the AG concedes, and ignores the plain language of the statute itself, as well as the attendant regulations. See Galina v. INS, 213 F.3d 955, 958 (7th Cir. 2000). That the Attorney General felt the need to trot out another Matter A-B- decision to bolster an already bad interpretation should give us pause. In fact, the mere existence of this decision demands our further thought and consideration.
What is the AG actually doing in this new 2021 version of Matter of A-B-? Taking a step back, after a close reading of the decision one possible conclusion is that AG, far from adjudicating any new issues or resolving any new dispute, is merely providing an advisory opinion attempting to justify its own strained interpretation of the INA with a list of circuit court decisions. The AG is not persuaded by the multiple decisions where A-B- was actually struck down, criticized, or limited. Interestingly, there is no mention for example of Grace v. Whitaker, where the U.S. District Court for the District of Columbia enjoined the application of A-B- as to credible fear interviews and held that Matter of A-B- may not be applied by USCIS, for example. This raises serious questions about its continued efficacy and legitimacy before the immigration courts, although they were not parties in Grace v. Whitaker and therefore EOIR was not bound. The appellate decision, Grace v. Barr, at the D.C. Circuit is mentioned, but not Grace v. Whitaker. The decision from the Sixth Circuit in Juan Antonio v. Barr, 959 F.3d 778 (6th Cir. 2020) is listed as a "cf." but there is no mention that Sixth Circuit held that A-B- was abrogated. Nor does the AG consider that the Ninth Circuit in Diaz-Reynoso v. Barr, 968 F.3d 1070, 1078–87 (9th Cir. 2020) granted the petition for review andheld that despite A-B- there still is required a case-by-case consideration of all aspects of social group claims, including domestic violence, among other related gender-related claims.
Consider for a moment the reality of a “complete helplessness” standard and what kind of unfair burden that would impose on litigants. I am reminded of what they tell you when studying for a bar exam (or any multiple choice test for that matter). They say, be very skeptical of answers that have “ALL” or “NONE” responses. Those, as we know in the law, are usually not the right answer. That someone has to prove that in order to meet the “unable or unwilling to return” to their country of origin that they are “completely” helpless smacks of that same kind of totalizing nonsense you see on multiple choice exams and against which competent attorneys are taught to be cautious. The AG apparently would be very happy to see a rule which requires all litigants to prove they are completely and utterly helpless, the police are totally inept, and the country is without police protection at all. One has to wonder if the AG desires such a rule because such a situation can rarely if ever be proven. What country, even the most lawless, would characterize itself in such terms? What country report, even the most critical, would not concede that there is at least the appearance of a police function, governmental accountability, the semblance of police protection? Is not the very point of domestic violence claims that the police do investigate but their investigation is cursory, illusory and dismissive of the violated and protective of the violator? By making the bar so high and unreasonable, the latest decision in A-B- clearly is just more political theatre, a justification designed to insulate the poorly reasoned (past) A-B’s from censure and reversal. The decision is designed to torpedo and obfuscate -- not adjudicate and elucidate.
A final further troubling aspect of the AG’s new A-B- decision should be noted. The AG gratuitously includes at the end of the new A-B decision a discussion of Matter of L-E-A-, including further justifications for L-E-A-‘s validity related to nuclear family particular social groups and nexus. The AG, completely, unilaterally and without relation to the case at hand, argues against the Fourth Circuit’s interpretation of nexus in “mixed motive” cases. The AG goes out of his way to ensure we are reminded that the two-pronged test articulated in Matter of L-E-A-, 27 I&N Dec. 40, 43–44 (BIA 2017), is the “proper approach” for determining whether a protected ground is “at least one central reason” for an asylum applicant’s persecution.
On the last page, in an attempted rebuke of the circuit courts, the AG says, “[a]s explained above, I understand that existing case law in certain circuits may conflict with my conclusions that (1) Matter of A-B- reiterated and did not change the legal standard for determining when “persecution” by third parties may be attributed to the government; and (2) more than but-for causation is required to show that the alien’s protected characteristic is “at least one central reason” for the persecution. In my view, however, those decisions were made without the benefit of clear and controlling interpretations of the statutory “unable or unwilling,” “persecution,” and “one central reason” requirements.” See Matter of A-B- (AG 2021) (citing Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982 (2005)). As we have discussed in a recent law review article, the AG in expressing apparent disagreement with circuit court precedent is attempting to stake a claim against what he sees as recalcitrant and disagreeable circuit court decisions. Such an encroaching practice from the AG as the leader of an executive branch agency is dangerous and may violate separation of powers.
* Geoffrey A. Hoffman is a clinical professor and director of the University of Houston Law Center Immigration Clinic. Institution for identification only.
Ann Loeb Bronfman Distinguished Professor of Law and Government Amanda Frost published an essay in The American Scholar titled "Bithright Citizens and Paper Sons." In it she reveals the true story of an unexpected archival find that puts a wrinkle in one of the landmark legal victories for Chinese Americans: U.S. v. Wong Kim Ark, in which the U.S. Supreme Court decided that the Fourteenth Amendment's provision of birthright citizenship extends to all persons born on U.S. soil, regardless of their parents' legal status.
After the U.S. Supreme Court declared that Wong Kim Ark was a U.S. born citizen despite his transnational life and his noncitizen parents, his children should have been automatically considered U.S. citizens. But the law did not immediately change their fortunes. When Wong Kim Ark's eldest son tried to enter the U.S. from China, he was initially held at Angel Island. Immigration inspectors declaired his paper fraudulent and denied him citizenship. A different son (Wong Yook Sue) met a similar fate on his attempt to enter, before this son appealed and got the decision reversed so that he could enter as a U.S. citizen.
But it turns out that Wong Yook Sue was a "paper son" of Wong Kim Ark. That is, according to the newly discovered and long overlooked documents from a Texas archive, he admitted during a Chinese confession program that he had falsely testified that he was biologically related to Wong Kim Ark and was instead a citizen of China. He was not a U.S. born citizen, notwithstanding Wong Kim Ark and the other Wong children's U.S. citizenship. Frost reflects on this unexpected wrinkle in a manner that highlights to complexity of history and even greater complexity of its lessons for the meaning of belonging in America.
From the perspective of a century later, the morality of paper sons and their citizen-fathers is complicated—just as complicated as the morality of unauthorized immigration today. Are paper sons and their fathers criminals, or are they the victims of a racist and inhumane system? Did they help or harm the United States? Does the United States regret the presence of a group of immigrants who mined the gold and built the transcontinental railroad at extraordinary speed and under harsh conditions? Or those, like Wong and his children, who took jobs that white Americans refused to do, laundering the clothes and cooking the meals to be enjoyed by the “real” citizens? In the words of Stanford professors Gordon H. Chang and Shelley Fisher Fishkin, Chinese immigrants and their children, both legal and illegal, in big ways and small, “helped build America.” One hundred years from now, when future historians scour the archives for records of the immigrants arriving today, they will surely say the same.
The story she tells in the article is one of many others from her new book, You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers, which comes out this month.
Webinar Tuesday, Jan. 19 — Immigration Policy: Ideas for the Biden Administration
When: Noon to 1:30 p.m. PST
What: This panel is co-organized by the Global Migration Center, UC Davis; the Berkeley Interdisciplinary Migration Initiative, UC Berkeley; and the Center for Comparative Immigration Studies, UC San Diego.
- Dianne Solis (immigration journalist at the Dallas Morning News)
- Kevin Johnson (UC Davis School of Law dean), and the directors of each of three immigration research centers: Irene Bloemraad, David Fitzgerald and Giovanni Peri (UC Davis)
Moderator: Brad Jones, Department of Political Science UC Davis
More information here
Register in advance for this webinar
Reporters and audience members will be able to write in questions during the webinar.
Immigration Article of the Day: Socialism and Empire: Labor Mobility, Racial Capitalism, and the Political Theory of Migration by Ines Valdez
Socialism and Empire: Labor Mobility, Racial Capitalism, and the Political Theory of Migration by Ines Valdez
This essay brings together political theories of empire and racial capitalism to clarify the entanglements between socialist and imperial discourse at the turn of the twentieth century. I show that white labor activists and intellectuals in the United States and the British settler colonies borrowed from imperial scripts to mark non-white workers as a threat. This discourse was thus both imperial and popular, because it absorbed the white working class into settler projects and enlisted its support in defense of imperial logics of labor control. While white workers’ demands of enfranchisement were part of a transnational imagination that was both imperial and narrowly emancipatory, this discourse reemerged as one of popular sovereignty and found channels and paths to institutionalization through national states. These institutional formations arose out of the encounter between capitalists interested in facilitating mobility of racialized laboring subjects around the globe, elite projects invested in sheltering settler spaces, and white workers concerned with protecting their own labor from competition by excluding exploitable non-white workers. White labor’s embrace of racial prejudice and the exclusion of workers of color created segregated labor spaces that fit neatly with both capitalist goals of labor control and the protection of the settler status of emerging polities. Bringing to the forefront the imperial genealogy of popular sovereignty and immigration control disrupts liberal political theory frameworks that condemn restrictions as well as those that find migration restrictions permissible. The analysis also illuminates contemporary immigration politics.
Monday, January 18, 2021
Achieving America’s Immigration Promise: ABA Recommendations to Advance Justice, Fairness and Efficiency
On January 20, 2021, a new Sheriff will be in town. President Biden will take the reins. People are asking what the new President will mean for immigration. The American Bar Association released a report with recommendations (Achieving America’s Immigration Promise: ABA Recommendations to Advance Justice, Fairness and Efficiency). The report lays out the ABA’s top policy recommendations in the immigration system for the new administration. It is divided into five sections, all priority areas for ABA policy and advocacy efforts:
I. Reform the administrative adjudication process;
II. Ensure access to counsel:
III. Minimize reliance on immigration detention;
IV. Restore humanitarian protections; and V. Preserve the rights of unaccompanied immigrant children.
The ABA recommends that the incoming administration give immediate attention to our recommendations in five key areas of immigration policy that will have long-term impacts on the immigration system as a whole:
I. Reform the administrative adjudication process;
II. Ensure access to counsel;
III. Minimize reliance on immigration detention;
IV. Restore humanitarian protections; and
V. Preserve the rights of unaccompanied immigrant children.
Photo courtesy of UC Davis School of Law
Happy Martin Luther King Jr. Day!
Ming Chen has blogged about Dr. King's legacy for a diverse America in the 31st century. As Jennifer Chacon has written, Dr. King has much to teach us about immigration, which is one of the civil rights issues of this century.
I feel honored that the UC Davis School of Law building is named after Dr. King. The name, and what Dr. King stood for, is important to our community. Each year, in honor of Martin Luther King, Jr., the law school holds an MLK Day of Service and Celebration on the MLK holiday. The Black Law Students Association , Law Students Association, and a MLK Day Working Group on this great day-long event for students, faculty, staff, and alumni.
The 2021 MLK Day of Service and Celebration includes the following:
Day of Service: Participants in MLK Day 2021 will have four options to provide service to the Davis community, or their local communities where they are housed during the COVID-19 pandemic. These options include:
- Blood Drive at King Hall Parking Lot: Volunteers will select at time and donate much needed blood to Vitalant Blood Source, a partner of UC Davis.
- Government Benefits Webinar and Clinic via Zoom: Trained volunteers will provide informational webinars on CalFresh and housing evictions, and help community members determine eligibility for benefits.
- Essentials Donation Drop-off: UC Davis Law is accepting donations to be dropped off at King Hall on Monday, January 18th. Donations will be provided to Saint John's Program for Real Change in Sacramento, California.
- Day of Service in Your Community: If you are unable to attend the service options above, we invite you to donate your time on January 18 to a cause near you! Please let us know how you will be serving the community by clicking here. Feel free to send pictures or just tell us how it went for you!
Sunday, January 17, 2021
KQED Perspectives has a series of 2-minute personal testimonies about Dr Martin Luther King's legacy for diversity. The stories are as varied as the backgrounds of the speakers and very touching.
Li Miao Lovett, a Chinese immigrant who arrived after the 1965 Hart Cellar Act, recounts the significance of the civil rights movement for her family's immigrant heritage. Though immigration historians like Jack Chin have revealed a more complex history, she says simply, “we wouldn’t even be in the country if not for the Civil Rights movement.”
On Martin Luther King Jr. Day, I celebrate the Civil Rights movement that helped foster the historic opening of immigration laws then. President Johnson spoke of lifting the “bars of discrimination” against immigrants. Vice President Hubert Humphrey was more explicit, urging us to “bring our immigration law into line with the spirit of the Civil Rights Act of 1964.” The following year, the Hart-Celler Act opened the doors to people coming from China, India, Brazil, Pakistan, all over --- lifting the ethnic bans and quotas in place for over 40 years.
Lovett concludes: "[W]e don’t need more walls. Today is a reminder that those of us who came to this country, or built our lives on the sweat of immigrants, should count the leaders of the Civil Rights movement among our kin."
The other stories are worth a listen as well.
Immigration Article of the Day: The Tortured Woman: Defying the Gendered Conventions of the Convention Against Torture by Linda Kelly
Check out Linda Kelly's article The Tortured Woman: Defying the Gendered Conventions of the Convention Against Torture in American University Washington College of Law's Human Rights Brief (Vol. 24, Issue 2, Winter 2020). Here is her introduction:
In the last few years, asylum advocacy for women has made some great strides — and has had some significant setbacks. Terrific attention has been paid to the ongoing, twenty-year struggle of domestic violence survivors to win asylum. The hard-won victory of female genital mutilation (FGM) claims for asylees has also been widely celebrated. However, little attention is paid to women’s claims pursuant to the Convention against Torture (CAT).
There are both practical and legal reasons for the difference in interest between asylum and CAT claims. As a practical matter, asylum has more benefits. Asylum puts the recipient on the road to residency and allows her to petition for family members. By contrast, CAT relief is a strictly limited benefit for the recipient, who can be subject to detention for the duration of status. As a legal matter, asylum is also easier to win. Asylum’s “reasonable fear of persecution” is much lower than CAT’s “would be tortured” analysis.
The fights, wins, and losses of female asylees deserve all the support they get — and more. Nevertheless, CAT remains an important tool for women. There are many women who are not eligible for asylum due to prior criminal or immigration records. Ongoing challenges to what qualifies as a valid particular social group for gender violence asylum claims and possible new, severe restrictions on all asylum claims further contribute to the need to fully appreciate and litigate CAT claims.
CAT requires that a claimant prove she “will more likely than not be tortured with the consent or acquiescence of a public official if removed to her native country.” This standard breaks down in four significant criteria for the success of a CAT claim: torture, government action or acquiescence, relocation, and future harm. This Article systematically evaluates the CAT standards from a gendered perspective. When they are put in context with the overarching historical struggle of women to fight gender violence, Professor Catherine MacKinnon’s blunt question arises: “Are Women Human?”
While gender challenges persist, existing CAT regulations can be tools to defy them. Uncovering CAT’s gender conventions, this Article proposes a new perspective on CAT standards of torture, state acquiescence, and relocation. Such proposals rely on key, positive 2020 U.S. Circuit Court CAT decisions while remaining rooted in feminist norms.
Part I of this Article introduces the basic definition of torture. Addressing the “what” and “why,” it considers what acts of domestic violence, rape, and sexual assault qualify as torture and whether why they occur is being fully considered. Part II follows by critiquing whether “who” perpetrates such acts of torture can fit the standard of government actor or acquiescence. Part III then moves to relocation, proposing that the standard can readily encompass safety issues unique to gender violence. Finally, Part IV brings the variables together to properly calculate the risk a torture victim will face upon return and asks how gender violence changes the calculus.
Call for Papers: Cross-Border Families under Covid-19
June 22-23, 2021
Cross-border families (also known as transnational and globordered families) are a growing and diverse phenomenon. People around the globe create bi-national spousal relations, are assisted by cross-border reproduction services, or by a migrant care worker who provides care for a dependent family member. Likewise, families become cross-bordered when one of the parents relocates, with or without the child, or when a parent abducts the child. In addition, increasing rates of forced or voluntary migration create more and more cross-border families, with different characteristics and needs. While some kinds of cross-border families have attracted the attention of legal scholarship, other kinds are still neglected, and much is yet to be studied and discussed regarding the challenges embedded in the attempt to secure the right to family life in the age of globalization.
The global Covid-19 crisis provides more, and alarming, evidence of the socio-legal vulnerabilities of cross-border families. For example, bi-national couples are separated for long periods of time; intended parents are unable to collect their baby from the country of the surrogate; and families assisted by a migrant care worker, the workers, and their left behind families, are entangled in new complex relations of power and dependency. Likewise, the right to heath is at risk when a family member is denied treatment because of partial citizenship status, and questions such as the enforcement of child support across borders are even harder to address than in more peaceful times.
Crises, such as the Covid-19 pandemic, are often a methodological opportunity for socio-legal research. In many cases, a major social crisis shakes habitualization, and opens up taken for granted social scripts to individual and collective reflection. Likewise, such a crisis involves risk regulation and, in the current case, also plague governance—involving intense emergency regulative changes made by different nation-states that might both reveal and challenge deeply shared norms regarding familial rights and national interests. Hence, our current era lends itself more readily than stable, routinized periods to the investigation of current regulation, and the imagining of options for new regulation regarding cross-border families.
In June 22-23, 2021, we plan an international socio-legal workshop that will explore the impact of the Covid-19 crisis and its regulation on cross-border families. We hope to explore the ways Covid-19 restrictions affect cross-border families, and the role of the law, in different countries, in shaping this impact and in challenging it.
The questions during the workshop might include, but are not limited to:
1) How does the Covid-19 crisis affect cross-border families?
2) How do legal Covid-19 restrictions affect cross-border families?
3) Did national jurisdictions adapted their substantial and procedural laws to meet the
challenges faced by cross-border families during the pandemic?
4) What can be learned from comparing different jurisdictions in their response to cross-
border families’ needs during the pandemic?
5) What can be learned about the interrelations between globalization, borders, families, and
the law, from this crisis?
6) What are the lessons to be learned from the pandemic on how can national, regional and
international law be developed to better protect the rights of cross-border families, and those involved in their creation and everyday familial doing, in times of crisis and in more stable times?
Confirmed Keynote Speaker: Prof. Yuko Nishitani, Kyoto University Law School
The workshop will be conducted via Zoom, and is sponsored by the Minerva Center for Human Rights at Tel Aviv University. It will be open to the public, and hopefully, will set the foundations for further multinational research and collaboration.
We will give serious consideration to all high-quality relevant research, from any discipline. Work in progress is welcome, as long as the presentation holds new findings or insights and not only declaration of intent. Faculty members as well as independent researchers and advanced research students are welcome to submit.
The screening process for the workshop will include two phases:
Phase I – Abstract:
Abstracts should include:
- An overview of the main question and arguments of your contribution (up to 500 words)
- Key words
- Contact details [author(s), affiliation (including institute and department), and e-mail address]
- Short bio of author/s (up to 250 words, each)
Abstracts must be in English and be submitted to this email address: eynatm@media- authority.com
Deadline for submission: February 28th, 2021.
Phase II – Summary:
Those whose abstract will be accepted, will be notified by March 31th, and will be asked to submit a 3-pages summary of their paper by April 30th. Accepted papers will be presented at the workshop. Presenters are expected to take part in all the workshop's sessions.
Apparently the immigration ideas that incoming VP Kamala Harris outlined for Univision on Tuesday are going to be the foundation of a bill that incoming president Joe Biden will send to Congress on his first day in office, the AP reports.
Biden is seeking to create a path to citizenship for the 11 million undocumented individuals living in the United States.
Specifically, there would be an eight-year path to citizenship with a faster track for DACA and TPS holders.
Color me surprised. I was interested in Harris' comments on Tuesday but I certainly didn't expect legislation to be proposed day one.