Wednesday, August 17, 2022
Immigration Article of the Day, Down that Wrong Road: US Immigration Detention Electronic Monitoring ‘Alternatives’ as Net-Widening by Stephanie Silverman
The Immigration Article of the Day is Down that Wrong Road: US Immigration Detention Electronic Monitoring ‘Alternatives’ as Net-Widening by Stephanie Silverman, now available on SSRN.
Here is the abstract:
Despite incarcerating the world’s largest immigration detainee population, the United States funds only one official ‘alternative to detention’ (ATD) program. Currently in its fourth iteration, the Intensive Supervision Appearance Program (ISAP) is a public-private partnership between the Department of Homeland Security and the private firm,
Behavioral Interventions, Incorporated, a GEO Group subsidiary. ISAP combines more traditional monitoring requirements such as home visits, with contemporary surveillance technology such as a smartphone application and a nonremovable, 5.5-ounce ankle shackle. Although there were 20,000 ISAP enrollees in May 2020, this program remains relatively understudied outside of the American immigration law scholarship.
This article explains and analyzes why ISAP is the wrong road for DHS as an immigration management strategy. The article traces a history of ISAP and the politics of electronically monitoring ‘risky’ individuals more generally. Amongst its findings, the article reveals that before the pandemic, the US was detaining the same number or more people as it expanded ISAP; this finding implies that ‘e-carceration’ is widening the overall net of people DHS subjects to coercive and violent state power. The article concludes that ISAP is a techno-solutionist panacea that inflicts grave harms on users and their communities while deflecting attention and resources from the much more complex issue of immigration and border control.
While Silicon Valley reaps much of the praise for the technology and ideas coming out of the region, it’s a sector relying on immigrants to lead it. More than half of startups valued at $1 billion or more were founded by immigrants to the United States, according to a report from the nonprofit National Foundation for American Policy.
Students have been advocating for law schools to sever ties with LexisNexis because of its contracts for providing information to U.S. immigration authorities. Kathleen Foody for the Associated Press reports that LexisNexis Risk Solutions allegedly violated Illinois law by collecting and combining extensive personal information and selling it to third parties including federal immigration authorities, according to a lawsuit filed yesterday.
The result is “a grave threat to civil liberties,” the activists and two immigration advocacy groups argued. The lawsuit asks a Cook County judge to prevent the data broker from selling personal information without consent.
The complaint also notes that LexisNexis’ Accurint product, which is sold to law enforcement, incorporates information that isn’t publicly available, including correctional bookings, vehicle collision records and license plate reader databases.
This commentary examines Jacqueline Bhabha’s article, "The Imperative of Sustaining (Rather Than Destroying) Frontline Empathic Solidarity for Distress Migrants," which explores the pivotal role that frontline communities play in international migration. In the article, Bhabha explores how frontline communities frequently lack the infrastructure, political will, and resources to respond to distress migration, and she unearths the potential of “empathic solidarity” to provide a “welcoming and humanizing experience” to migrants. This commentary responds by demonstrating how empathic solidarity can play a significant generative role for migrants’ rights. It also examines the limitations of empathic solidarity and considers questions to guide further research on frontline communities.
Tuesday, August 16, 2022
New reporting by the BBC highlights the plight of 100+ teachers in Afghanistan who, before the regime change, had worked for the British Council. Not familiar with the British Council? It's an entity whose goal is to "support peace and prosperity by building connections, understanding and trust between people in the UK and countries worldwide."
These British Council teachers taught Afghans English as well as "the culture of the United Kingdom," including "equality, diversity and inclusion."
The very public work of these teachers, and their ties to the UK via the British Council, has rendered them a target under the current Taliban regime. That's because the Taliban perceives the teachers to be U.S. spies who engaged in "unlawful" teaching that was a "betrayal of the Islamic faith."
The UK had a special program--Afghan Relocation Assistance Policy--to help Afghan allies of the UK. But the UK government only considered applications from the British Council "office staff" (not public-facing gigs) and not their teachers (public-facing gigs). I've put that in bold because, wow, is that damning. Which I say as an American fully aware of the stones I'm throwing out of our nation's red-white-and-blue-striped glass house.
On that note, the BBC's coverage doesn't leave the U.S. unscathed. One teacher sought SIV status in the U.S. but couldn't get it because they're unable to get a letter from their former supervisor who has died from Covid 19. (Side note: I recently had a fabulously engaging conversation with the inimitable Lenni Benson about the inanity of the U.S. treatment of Afghans; apparently we won't help Afghans who fled to Pakistan to save their lives because those migrants can't get exit visas from Pakistan because they are illegal immigrants in that country. Read that a few times and see if it makes sense. Spoiler alert: It doesn't.)
So, how do these teachers feel now? The BBC quotes one woman as saying: "I regret it now. I wish I'd never worked for them because they don't value our life and our work, and have been cruel in leaving us behind."
19TH ANNUAL IMMIGRATION LAW AND POLICY CONFERENCE, September 20, 2022, HYBRID (virtual & in-person).
This year's Immigration Law and Policy Conference organized by the Migration Policy Institute, Catholic Legal Immigration Network, Inc., and the Georgetown University Law Center, will be a hybrid event on September 20, transmitted online for virtual audiences and open to a select number of in-person attendees in Washington, DC.
An Unsettled Landscape: The State of Play for Immigration in an Era of Growing Executive Action and State Involvement
The Court Is Now in Session: The Growing Role of Litigation to Shape Legal and Policy Developments
Reshaping the Asylum System at the U.S.-Mexico Border
A Glass Half Full or Half Empty: Humanitarian Protection Developments
Law 360 ("9th Circ. Judge Rips Court's 'Dirty' Effort To Curb Deportations") reports on a biting dissent in a criminal removal case by U.S. Circuit Judge Lawrence VanDyke, who was appointed by President Trump. Judge VanDyke accused his fellow Ninth Circuit judges of using their "legal imagination" to prevent the removal of immigrants.
The case was Cordero- Garcia v. Garland. District Court Judge Ted Moskowitz, sitting by designation, joined by Judge Andrew Hurwitz, wrote for the majority in a criminal removal case. Judge VanDyke dissented. His dissent begins:
"I haven’t been shy in my criticism of our court’s `abysmal and indefensible immigration precedents,' and this case well illustrates why. The majority emphasizes that in reaching its result, `[w]e do not write on a clean slate.' Quite true. Since 2011, our court has been whipsawing the Board of Immigration Appeals (`BIA'), doing everything in our power (and much not) to upset the BIA’s consistent and reasonable interpretation of what constitutes `an offense related to obstruction of justice.' . . . To understand just how dirty our court has played to prevent the deportation of immigrants who have willingly interfered with our justice system requires another depressing walk down memory lane, where successive panels of our court—often over a dissent—have misrepresented the BIA, misrepresented the law, and even completely reversed key positions taken in our own decisions issued only a few years earlier. All for only one discernable reason: to entrench an indefensible legal conclusion that was clearly wrong when first made over a decade ago and, despite our wrongheaded efforts to defend
it at every turn, has made us an embarrassing outlier with our sister circuits. While I appreciate, as the majority does, that we are bound by precedent, that does not mean that we are bound to perpetuate the irrationality of our immigration jurisprudence by projecting it headlong into the future. I must regrettably dissent.
Opinion attached | Read full article »
Immigration Article of the Day: The Abandonment of International College Athletes by NIL Policy by Victoria J. Haneman & David P. Weber
A new era in college sports dawned on July 1, 2021. College sports generate billions of dollars in revenue, and the National Collegiate Athletic Association announced that college athletes were (subject to various limitations and restrictions) entitled to earn money based upon name, image, and likeness (NIL) without losing eligibility to compete. It is estimated that more than $917 million in NIL deals have been generated in the first twelve months alone. The more than 450,000 college athletes across the United States are now able to leverage NIL to make paid appearances, endorse products or services on social media, receive compensation for autograph signings, and promote local and national businesses. Excluded from most NIL opportunities, however, are the 12% of athletes recruited from outside of the United States. Most international athletes enter the United States on student (F) visas, which are subject to very specific rules for when employment is permissible in the United States. The creators of the F visa had no reason in 1952 to include an NIL exception to the work prohibition, which consequently results in serious inequity for these athletes today. This Article details the tax and employment prohibition issues facing foreign athletes, including the way in which current F visa rules may be deftly sidestepped by generating NIL income characterized by the Internal Revenue Service as passive rather than active. The proposed paradigm shapes an approach by which foreign athletes may maximize NIL earning potential, while also highlighting obvious areas for improvement in the current framework of law and regulation.
Monday, August 15, 2022
Jay Caspian Kang is a novelist, writer with the N.Y. Times, former correspondent for Vice News Tonight (check out this 2017 post about his Texas SB 4 investigative work), and co-host of the podcast Time To Say Goodbye. That last bit probably merits its own post. The podcast is about "Asia, Asian America, and life during the Coronavirus pandemic."
But I'm here to talk about Kang's nonfiction work. He's the author of The Loneliest Americans (2021). Here's the pitch:
In 1965, a new immigration law lifted a century of restrictions against Asian immigrants to the United States. Nobody, including the lawmakers who passed the bill, expected it to transform the country’s demographics. But over the next four decades, millions arrived, including Jay Caspian Kang’s parents, grandparents, aunts, and uncles. They came with almost no understanding of their new home, much less the history of “Asian America” that was supposed to define them.
The Loneliest Americans is the unforgettable story of Kang and his family as they move from a housing project in Cambridge to an idyllic college town in the South and eventually to the West Coast. Their story unfolds against the backdrop of a rapidly expanding Asian America, as millions more immigrants, many of them working-class or undocumented, stream into the country. At the same time, upwardly mobile urban professionals have struggled to reconcile their parents’ assimilationist goals with membership in a multicultural elite—all while trying to carve out a new kind of belonging for their own children, who are neither white nor truly “people of color.”
Kang recognizes this existential loneliness in himself and in other Asian Americans who try to locate themselves in the country’s racial binary. There are the businessmen turning Flushing into a center of immigrant wealth; the casualties of the Los Angeles riots; the impoverished parents in New York City who believe that admission to the city’s exam schools is the only way out; the men’s right’s activists on Reddit ranting about intermarriage; and the handful of protesters who show up at Black Lives Matter rallies holding “Yellow Peril Supports Black Power” signs.
Kang’s exquisitely crafted book brings these lonely parallel climbers together and calls for a new immigrant solidarity—one rooted not in bubble tea and elite college admissions but in the struggles of refugees and the working class.
Caitlin Dickerson's article in The Atlantic on the family separation policy (and here, here, here) has received much attention.
Editor in chief Jeffrey Goldberg speaks with Caitlin Dickerson about The Atlantic’s story detailing her years-long investigation behind the U.S. government’s family-separation policy. The event took place virtually Friday, August 12, at 2 p.m. ET. The article will be published in The Atlantic’s September issue.
In The Birthright Lottery, I explored the multiple ways in which birthright access to citizenship operates as a distributor (or denier) of opportunity on a global scale. And what a significant distributor it is. Today, 97 percent of the global population gains access to citizenship solely by virtue of where or to whom they were born. In this article, I shift the gaze from the automatic transmission of citizenship, which I refer to as the initial allocation, to deciphering the code, or underlying logic, governing the secondary allocation: the process of naturalization. Counter to predictions of waning sovereignty, tremendous investment is placed on regulating mobility, migration, and access to membership. This article identifies three core sorting mechanisms that produce overt and covert inequalities in the acquisition of citizenship. We may refer to these as the trinity of the territorial, the cultural, and the economic. These intersecting yet analytically distinct dimensions allow governments to develop sophisticated sorting mechanisms to “filter” admission in reference to different target populations, placing a heavy burden on those seeking it. This contribution, which will appear in the 25th Anniversary Special Issue of Citizenship Studies, lays bare the mistaken assumption that we live in a world wherein mobility is purely chosen and easily available—irrespective of race, gender, class, power, and legal regulation. It further suggests ways of reinvigorating the political imagination for rewriting the rules governing access to membership.
Saturday, August 13, 2022
Systemic racism is embedded in the U.S. immigration laws. For a brief description, see here. This issue was considered this week by the United Nations Committee on the Elimination of Racial Discrimination.
Isabela Dias in Mother Jones reminds us of the racist history of the U.S. immigration laws, beginning with the Chinese Exclusion Act of 1882:
"It wasn’t until the mid-to-late-20th century that the United States and other receiving countries stripped their openly racist immigration laws from the books. In their place, these nations implemented what Andrew S. Rosenberg, an assistant professor of political science at the University of Florida, who studies race in international politics, calls a nominally `color-blind' system. In his new book, Undesirable Immigrants: Why Racism Persists in International Migration, Rosenberg explains how racial bias hides in plain sight in immigration policies and practices worldwide. He traces the origins of racist immigration policies that most often affect nonwhite migrants to the creation of nation-states, colonialism, and the expansion of global capitalism."
NEW OIG Report: El Paso Sector Border Patrol Struggled with Prolonged Detention and Consistent Compliance with TEDS Standards
This week, the Office of Inspector General for the Department of Homeland Security released a new report: El Paso Sector Border Patrol Struggled with Prolonged Detention and Consistent Compliance with TEDS Standards. A full copy of the report is available here.
The OIG conducted unannounced inspections in October 2021 of seven U.S. Customs and Border Protection (CBP) facilities in the El Paso area of West Texas and New Mexico. The report raises a number of serious concerns with the operation of these facilities and serious violations of migrants' rights.
According to the report, they "found that U.S. Border Patrol held 493 migrants in custody longer than specified in the applicable standards, which generally limit detention in these facilities to 72 hours. Despite prolonged detention times, none of the facilities we inspected was overcrowded. We also observed Border Patrol using an Office of Field Operations (OFO) port of entry to process migrants, a practice that created operational efficiencies but was not sufficiently documented. We found that Border Patrol held some migrants placed for expulsion under Title 42 authorities for longer than 14 days, which is inconsistent with Border Patrol policy. In addition, when Border Patrol expelled migrants under
Title 42, agents recorded them in the tracking system as “Not in Custody” despite migrants being placed in custody temporarily prior to being expelled. CBP did not meet two other TEDS standards we evaluated. Specifically, we found inconsistent implementation of standards related to segregating juveniles from unrelated adults or legal guardians and providing interpretation to detained individuals."
The report makes a number of recommendations for addressing these serious problems.
Immigration Article of the Day: Heeding the Voices of Migrant Youth: The Need for Action by Randi Mandelbaum, Michigan Law Review, Vol. 121, No. 6, (Forthcoming 2023)
This is a book review of Unaccompanied: The Plight of Immigrant Youth at the Border" by Emily Ruehs-Navarro (NYU Press).
Friday, August 12, 2022
The Oxford Handbook of Comparative Immigration Law is a book-length treatment of comparative immigration law. The project will bring together some of the world’s leading immigration and comparative legal scholars to identify and analyze the key issues of comparative immigration law, further define the field, and catalyze further research. The handbook will provide scholars, students, and practitioners with a broader set of ways to think about immigration law and policy.
According to the Table of Contents, the volume will commence with a section on theoretical and conceptual frameworks for studying immigration comparatively, including viewing immigration as economics, law enforcement, foreign relations, racial control, and administrative law. The cross-cutting issues in inclusion include visa policies, refugee laws, family and employer-sponsored immigration, alienage, and integration. Exclusionary policies such as border security, deportation processes, detention, and statelessness are also included. Within each section, comparisons are made across a sweeping set of countries in the United States, to the UK and European Countries (France, Germany), to Israel and the Middle East, to China and East Asia, to Latin America, and to subsaharan Africa among others. Authors hail from universities just as global in reach.
The collection, edited by Kevin Cope (University of Virginia), Stella Burch Elias (University of Iowa), and Jill Goldenziel (Marine Corps University), is a collaborative project. Contributors, who include ImmigrationProf Blog editors KJ, KitJ, MHC, and AK, will be workshopping their chapters this weekend at the University of Virginia Law School and preparing for publication in 2023.
Texas Governor Greg Abbott has taken a number of immigration measures (and here), including busing migrants from Texas to New York and Washington D.C. Those measures have produced controversy and have kept Abbott's immigration measures in the news.
As NPR reports, "New York City Mayor Eric Adams is criticizing Texas Gov. Greg Abbott for sending busloads of migrants to the city, saying that Abbott `used innocent people as political pawns to manufacture a crisis.'"
.@GregAbbott_TX used innocent people as political pawns to manufacture a crisis. New Yorkers are stepping up to fix it — that’s our city’s values.— Mayor Eric Adams (@NYCMayor) August 7, 2022
But we need the federal government’s help — money, technical assistance and more. pic.twitter.com/cOdXrULpcC
The upcoming elections may affect the balance of power in the U.S. Senate. Ohio is one state to watch. As previously blogged about here and here, Ohio Republican Senate nominee J.D. Vance is playing the same immigration themes as Donald Trump. Greg Sargent in the Washington Post put it this way: "As vile as it gets: J.D. Vance goes full ‘great replacement theory’"
Here is Vance's campaign website statement under the entry "SOLVE SOUTHERN BORDER CRISIS":
"Unchecked, illegal immigrants are entering our country at record rates. Joe Biden’s do-nothing policies give millions of aliens a free pass to break our laws, traffic drugs into our communities, contribute to rising crime and take jobs away from hardworking Americans. Biden’s policies have created a crisis out of thin air, after four years of President Trump’s successful efforts to get our border under control. As Ohio’s next senator, I will oppose every attempt by the Democrats to grant amnesty, so that our communities are safe places to live and work and raise a family. I’ll also work to finish construction of a border wall, and double the number of border agents in our country. Border security is not rocket science—we simply need the political will and the resources to do it.
We also must reform our legal immigration system. In no other developed country do we allow migration primarily based on family relations rather than skills. Millions of people want to come here, and we should only allow them if they contribute something meaningful to our country. Importantly, our ability to assimilate immigrants successfully—something our country should be proud of—is contingent on American leadership that loves this country. Forty years ago, new American immigrants came to a country where bipartisan leaders delivered a simple message: this great country is now your own, and you have a duty to help build it. Today, those same leaders deliver a different message: this is an evil and racist country, and you owe nothing to it. Because of this, our capacity to assimilate the next generation of immigrants is limited, and our legal immigration system should account for this fact by changing who we let in and reducing the total numbers."