Wednesday, May 25, 2022
TRAC, a research institute at Syracuse University, updated their immigrant detention 'Quick Facts' yesterday with new data released by Immigration and Customs Enforcement.
According to the organization's press release, TRAC found that Immigration and Customs Enforcement (ICE) held 22,281 immigrants in detention on May 7, 2022, the highest number in detention since the beginning of 2022.
The rest of the press release is shared below:
The number of immigrants monitored on ICE's electronic monitoring program known as ISAP or Alternatives to Detention continued its march upward to about 240,000. The vast majority of these, nearly 187,000, were monitored using a smartphone app called SmartLINK, while GPS ankle monitor use actually declined to less than 23,000, the smallest since 2020 when TRAC began tracking these data.
Importantly, these data show that the number of immigrants in detention and the number of immigrants monitored on ICE's Alternatives to Detention (ATD) program can increase at the same time. Although ICE calls its program "Alternatives" to Detention, the agency makes clear on its website that its ATD program is "not a substitute for detention, but allows ICE to exercise increased supervision over a portion of those who are not detained." Thus, growth in ATD supervision does not necessarily correspond to a decline in immigrant detention.
The Transactional Research Access Clearinghouse (TRAC) a research organization at Syracuse University created 'Quick Facts' tools to provide a user-friendly way to see the most updated data available on immigrant detention and the immigration courts. The tools include easy-to-understand data in context and provide quotable descriptions.
Highlights from data updated today on the immigration detention system provided by show that:
Immigration and Customs Enforcement held 22,281 in ICE detention according to data current as of May 7, 2022.
16,034 out of 22,281—or 72.0%—held in ICE detention have no criminal record, according to data current as of May 7, 2022. Many more have only minor offenses, including traffic violations.
ICE relied on detention facilities in Texas to house the most people during FY 2022, according to data current as of May 5, 2022.
ICE arrested 5,083 and CBP arrested 20,317 of the 25,400 people booked into detention by ICE during April 2022.
Stewart Detention Center in Lumpkin, Georgia held the largest number of ICE detainees so far in FY 2022, averaging 1,080 per day (as of May 2022).
ICE Alternatives to Detention (ATD) programs are currently monitoring 239,957 families and single individuals, according to data current as of May 7, 2022.
Harlingen's area office has highest number in ICE's Alternatives to Detention (ATD) monitoring programs, according to data current as of May 7, 2022.
Tuesday, May 24, 2022
Today, Reps. Joaquin Castro (TX-20) and Adriano Espaillat (NY-13) led a bipartisan letter to President Biden, Secretary of Homeland Security Alejandro Mayorkas, and Secretary of State Antony Blinken urging the administration to expand Temporary Protected Status protections for migrants from Guatemala, El Salvador, Honduras, and Nicaragua.
Despite the ongoing humanitarian crises in Guatemala, El Salvador, Honduras, and Nicaragua, citizens of these nations who flee to the United States without legal status face an uphill battle to remain in the country. If detained, they can face deportation back to countries beset by food insecurity, political conflict, and economic instability — challenges that have been exacerbated by the COVID-19 pandemic and twin hurricanes that hit the region in November 2020. An estimated 1.5 million migrants in the United States would benefit from extending TPS to Guatemala, El Salvador, Honduras, and Nicaragua.
Today’s letter is endorsed by United We Dream, Immigration Hub, Church Worldwide Services, Kids in Need of Defense (KIND), Latin America Working Group (LAWG), Washington Office on Latin America (WOLA), and Women’s Refugee Commission (WRC)
Additional co-signers on the letter include Reps. Jim McGovern (MA-02), Alexandria Ocasio-Cortez (NY-14), Jimmy Gomez (CA-34), Linda Sánchez (CA-38), Bonnie Watson Coleman (NJ-12), Andre Carson (IN-07), Frederica Wilson (FL-24), Juan Vargas (CA-51), Anthony Brown (MD-04), Terri Sewell (AL-07), Lou Correa (CA-46), Dwight Evans (PA-03), Jesus “Chuy” Garcia (IL-04), Grace Meng (NY-06), Eleanor Norton (DC-AL), Pramila Jayapal (WA-7), Albio Sires (NJ-8), Barbara Lee (CA-13), Jan Schakowsky (IL-09), Troy Carter (LA-02), Mark Pocan (WI-02), Grace Napolitano (CA-32), Tony Cárdenas (CA-29), Nydia Velazquez (NY-07), Ritchie Torres (NY-15), Donald Payne Jr. (NJ-10), Mike Quigley (IL-5), Rashida Tlaib (MI-13), Carolyn Maloney (NY-12), Henry “Hank” Johnson Jr. (GA-04), Darren Soto (FL-09), Hakeem Jeffries (NY-08), Dina Titus (NV-01), Ruben Gallego (AZ-07), Ayanna Pressley (MA-07), Mark DeSaulnier (CA-11), Jimmy Panetta (CA-20), Thomas Suozzi (NY-03), Norma Torres (CA-35), Nanette Barragán (CA-44), Alan Lowenthal (CA-47), Sara Jacobs (CA-53), Judy Chu (CA-27), Veronica Escobar (TX-16), Jamie Raskin (MD-08), Cori Bush (MO-01), Lori Trahan (MA-03), Raul Ruiz (CA-36), Sylvia Garcia (TX-29), Ted Lieu (CA-33), Andy Levin (MI-09), Karen Bass (CA-37), Jason Crow (CO-06), Shelia Cherfilus-McCormick (FL-20), Salud Carbajal (CA-24), Raul Grijalva (AZ-03), Tom Malinowski (NJ-07), Debbie Dingell (MI-12), Frank Pallone Jr. (NJ-06), Gerry Connolly (VA-11), Maria Elvira Salazar (FL-27), David Scott (GA-13), Marcy Kaptur (OH-09), Gregory Meeks (NY-05), Jamaal Bowman (NY-16), Lucille Roybal-Allard (CA-40), Yvette Clarke (NY-09), Joe Neguse (CO-02), Adam Smith (WA-09), Marie Newman (IL-03), Steven Horsford (NV-04), Kathy Castor (FL-14), Kathleen Rice (NY-04), Sean Casten (IL-06), Al Lawson (FL-05), Donald McEachin (VA-04), Nikema Williams (GA-05), Ilhan Omar (MN-05), David Cicilline (RI-01), Jerrold “Jerry” Nadler (NY-10), Gwen Moore (WI-04) , Zoe Lofgren (CA-19), Haley Stevens (MI-11), Debbie Wasserman-Schultz (FL-23)
The full letter is here and below.
Dear President Biden, Secretary Mayorkas, and Secretary Blinken,
We write to urgently request your administration expand Temporary Protected Status protections for migrants from Guatemala, El Salvador, Honduras, and Nicaragua. We have watched with concern the worsening humanitarian crisis in Central American countries in the aftermath of Hurricanes Eta and Iota in 2020, continued severe drought, and the COVID-19 pandemic. We believe designating Guatemala and redesignating El Salvador, Honduras, and Nicaragua for Temporary Protected Status (TPS) would go a long way in assisting those communities in the United States and enable them to better support their families back home.
The pressures of the November 2020 hurricanes compounded with the long-term effects of climate change and the COVID-19 pandemic have worsened food insecurity and violence in countries in Central America. Hurricanes Eta and Iota left over 9.3 million people, including 3.5 million children, affected and forced to leave their home communities. The hurricanes also left long-lasting damage by destroying key healthcare, education, and other infrastructure essential to everyday lives. Almost a year later, millions in Honduras, Guatemala, Nicaragua, and El Salvador still lacked access to humanitarian assistance, housing, and basic services.
The COVID-19 pandemic and the hurricanes interrupted the crucial flow of remittances to Guatemala, Honduras, El Salvador, and Nicaragua, which served a crucial role in supporting the region’s economic recovery. The Famine Early Warning Systems Network (FEWS NET) estimates areas affected by the two hurricanes, as well as the Dry Corridor in Honduras and Guatemala, will remain in crisis levels of food insecurity through at least May 2022. Over 8 million people went hungry in 2021, quadrupling from 2018, and these numbers will continue to rise as we see the increased effects of climate change on agriculture outputs, security, and economic integration. As your administration has recognized climate change as a key contributor to migration, these designations would support the administration’s efforts to address the root causes of migration as communities in Central America have weathered the brunt of climate change’s effects including consecutive years of drought and extreme weather events.
The changing political dynamics in these countries also underscore the difficulties individuals face in returning home. For example, the crackdown on civil society, journalists, and other dissidents in Nicaragua over the last few years has worsened to the point where return for many Nicaraguans means imprisonment or other forms of punishment. Similar situations have emerged over the last year in El Salvador and Guatemala. The U.S. Government must respond to these developments by adding these TPS designations to the larger landscape of assistance for Central American countries and as part of the administration’s effort to curb corruption, impunity, and violence in the region.
We believe that conditions on the ground in Guatemala, Honduras, El Salvador, and Nicaragua constitute “extraordinary and temporary conditions” that prevent nationals from safely returning. These countries have been dealing with the aftermath of such events for years and as conditions continue to worsen and new challenges arise, the United States should provide temporary protection and refuge. Furthermore, these designations would provide the U.S. government with an important tool to address root causes of migration from Central American countries by helping increase the flow of remittances and supporting government efforts to address in-country conditions without the additional tax of a large influx of individuals forced to return home. The designation would likely protect nearly 1.5 million migrants currently in the United States, providing immediate relief to these individuals and their families. We ask that these TPS designations be paired with a robust and comprehensive messaging campaign that offers clear instructions regarding eligibility and application procedures, as to prevent confusion and mass migration that occurred after the May 2021 Haiti TPS designation.
It is our view that Guatemala, El Salvador, Honduras, and Nicaragua meet the circumstances and standards for TPS. We look forward to continuing to support the efforts from your administration to address the root causes of migration in Central America in a holistic manner, including by taking this important step to uphold humanitarian protections and safeguard U.S. national security interests. Thank you for your consideration.
The big exodus of Ukrainian refugees isn’t an accident – it’s part of Putin’s plan to destabilize Europe
Mass migrations may have foreign policy consequences. In " The big exodus of Ukrainian refugees isn’t an accident – it’s part of Putin’s plan to destabilize Europe" in The Conversation, Mark A. Grey argues that Putin hopes that Russia's invasion of Ukraine will force civilians flee, part of a broader strategy to overwhelm other countries with new refugees and destabilize their economies. Grey notes that, although nations like Poland initially opened their doors to Ukrainian refugees, patience is wearing thin.
TikTok activist Carlos Eduardo Espina is using the social media app to help migrants understand the U.S. immigration system and cross the border safely in Spanish. See this Associated Press report. "The quick format of the videos, where you’re able to watch a TikTok in 10 seconds and then watch another one, is really convenient for immigrants — especially if you’re on the move — you’re going through Mexico or through Central America," said Espina, a U.S. citizen who immigrated to Texas as a child. "I’ve been blessed in this country to be able to go to school. Now I’m in law school. I’ve been able to work. I’ve been able to contribute," he added. "I want people at the end of the day to be safe, to be secure, and to not make decisions that could potentially put their lives in danger."
Undocumented immigrants are ineligible for federal public benefits. Tyche Hendrick from KQED reports on California Governor Gavin Newsom's proposed budget would make this the first state in the nation to extend safety-net health care coverage to all residents, regardless of immigration status.
"[E]ven with an unprecedented budget surplus, plans to further expand social programs will have to contend with a state spending limit approved by voters in 1979, along with uncertainty about where the state economy is headed and resistance from fiscal conservatives. Since 2016, California has expanded Medi-Cal to undocumented children and, beginning this month, adults over age 50. Newsom's plan, first announced in January, would cover the last remaining group: roughly 700,000 undocumented adults, age 26 to 49, at a cost of $800 million next year and $2.7 billion in future years. If the governor's Medi-Cal expansion is enacted, though, it won't take effect until 2024."
Monday, May 23, 2022
Check out this new podcast from Oxford University, "The Migration Oxford podcast," which aims "to bring together researchers and other observers to address the major migration issues of our time, both in UK and internationally."
The latest episode is titled "Rwanda and refoulement: Can the 1951 Refugee Convention survive?" Here is the summary:
In this episode of the Migration Oxford Podcast, we ask if the 1951 Refugee Convention is under attack. As states look for ways to avoid taking responsibility for refugees and asylum seekers, such as the UK's "Migration and Economic Development Partnership with Rwanda". Is the Convention still the right tool, and how can the protection it offers refugees be improved in an era where global governance of any issue is vexed at best? We speak to Dr Catherine Briddick, Departmental Lecturer in Gender and International Human Rights and Refugee Law at the Refugee Studies Centre at the University of Oxford, and Sabir Zazai Chief Executive of the Scottish Refugee Council to understand both the human and legal implications of the convention and moves by states to circumvent it.
"After two years of negotiations, we have reached a settlement with the U.S. border patrol that for the first time sets detailed standards for the safe detention of immigrant children. . . .
. . . .
The parties’ joint motion for preliminary approval of the settlement is available at this link. A copy of the parties’ settlement is available at this link. Exhibit 1 to settlement (poster) available at this link. Exhibits 2-4 to settlement available at this link. The parties proposed Class notice is available at this link."
CALL FOR PAPERS
“New Voices in Immigration Law”
Association of American Law Schools · Section on Immigration Law
Wednesday, January 4 – Saturday, January 7, 2023 (session timing TBD) · San Diego, CA
Submission Deadline: August 15, 2022
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 2023 AALS Annual Meeting which will take place in San Diego, CA January 4-7, 2023. 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.
Submission Guidelines: The deadline for submissions is August 15, 2022. 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 2023: 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).
Albert Pujols, the major league baseball player with the St. Louis Cardinals, is no stranger to being immigrant of the day. Kevin highlighted him in 2007 when the Dominican-born player became a U.S. citizen, and again in 2017 when Pujols was on the verge of hitting his 600th home run (which he did and more).
Here's the thing about baseball. You've got hitters/fielders and you've got pitchers. They're different folks. Different skills. There's typically no crossover.
Pujols is, as you might guess, a hitter. He played first base for the cardinals for years. Then transitioned to becoming the team's designated hitter. That, for non-baseball folks, means he would step up and hit in lieu of the pitcher. Those 600+ home runs he's hit have many lauding him as a shoo-in for baseball's Hall of Fame once he retires.
Then came Sunday, May 15. The Cardinals were playing the Giants (S.F.). It was a blowout. In bottom of the eighth inning the Cards were ahead 15-2. The team's manager was looking around for someone to pitch the 9th so the team could avoid using a reliever. Pujols, 42, who had never before pitched, took the bait. He gave up 4 runs, but closed out the inning at 15-6.
After the game, Pujols told reporters it was: "A dream come true to say that I did it... It was fun. It wasn’t fun giving up two bombs. I think the fans had a good time. I’m sure the guys that took me deep did, too.”
You can watch his pitching here:
The New York Times features a personal story on Puerto Rican citizens forced to move to mainland for public assistance, given their ineligibility for public programs desipte US citizenship.
As the article explains, Puerto Ricans still do not have access to the same social safety net as other U.S. citizens. Cuts in special education and social services have exacerbated the situation. As a result, "People who are disabled or care for children with special needs must routinely relocate to the 50 states to get care." It points out the problem that contains a solution:
Last month the United States Supreme Court could have ended this disparity. Instead, it held that Congress has the right to deny disability benefits to residents. While disheartening, the ruling was hardly surprising. The court used the same racist logic that for over a century has affirmed second-class citizenship for Puerto Ricans.
Politifact once again rebuts the Republican urban legend that noncitizens released from detention fail to appeal at hearings in immigration court. It examines the truthfulness of Senator James Lankford's (R-Oklahoma) statement that “[t]he vast majority of individuals that we’re releasing out are not showing up for hearings.”
PolitiFact's ruling: False
Click the link above to look at the explanation of why Senator Lankford's statement, part of President Trump's talking points on immigration, is false. The punch line:
"There are different ways to track how many immigrants don’t show up to immigration court hearings, and all indicate that a majority of immigrants, including those who are not detained, do attend their hearings. Data from the Justice Department show that in fiscal year 2021 and during the first quarter of 2022, most immigrants attended their hearings.
We rate Lankford’s claim False."
Remember when Vice President Kamala Harris was the Biden administration's point person on immigration. That has changed, according to Philip Wegmann for Real Clear Politics:
"[A]s the flow of migrants accelerates across the southern border, immigration has disappeared from the vice president’s public schedule.
A compilation of that schedule by the Los Angeles Times, reviewed by RealClearPolitics, shows that Harris has not hosted an immigration-specific event since last summer. . . .
White House officials dispute any characterization that Harris’ public schedule tells the whole story. `The vice president continues to lead implementation of the Root Causes Strategy and has been engaging with Cabinet and other Administration officials on this effort,' Harris’ Press Secretary Kirsten Allen told RCP."
Sunday, May 22, 2022
Sometimes you're in the mood for an immigration story but you're not feeling nonfiction or even a novel. Enter the comic book. Superman Smashes the Klan is authored by Gene Luen Yang and illustrated by Gurihiru. Check out this pitch:
The year is 1946. Teenagers Roberta and Tommy Lee just moved with their parents from Chinatown to the center of Metropolis, home to the famous hero, Superman. Tommy makes friends quickly, while Roberta pines for home. Then one night, the family awakens to find their house surrounded by the Klan of the Fiery Kross! Superman leaps into action, but his exposure to a mysterious green rock has left him weak. Can Roberta and Tommy help him smash the Klan?
Inspired by the 1940s Superman radio serial "Clan of the Fiery Cross," New York Times bestselling author Gene Luen Yang (American Born Chinese, Boxers and Saints, The Terrifics, New Super-Man) and artist Gurihiru (Avatar: The Last Airbender, The Unstoppable Wasp) bring us a personal retelling of two different immigrants finding ways to belong.
Need a song accompaniment to your comic book reading? Superman Es Ilegal, sung by Los Hermano Ortiz, is your obvious pick.
In reading about this book, I couldn't help but become intrigued by Gene Luen Yang's earlier work: American Born Chinese which he both authored and illustrated. This graphic novel intertwines the stories of three different characters, one of who is "Jin Wang, who moves to a new neighborhood with his family only to discover that he's the only Chinese-American student at his new school."
How'd you like that? Sunday night double feature on immigration-related graphic novels. Now go out there and READ!
A Super Fight Down Under And I Will Reign Supreme On June 5th At Marvel Stadium Defending All My Belts And Adding Another One To My Collection 🇦🇺⚔️🇬🇷— George "Ferocious" Kambosos Jr (@georgekambosos) May 6, 2022
🎫 Limited Tickets Left Don’t Miss Out On Watching History And Brutality 😈 pic.twitter.com/QcEUi40oR5
Earlier this year, Australian Open champion Novak Djokovic was unable to defend his 2021 title after the Australian government canceled his visa. The nation has a long history of tough immigration enforcement. For a look at Austrlian's contemporary immigration policies, click here.
Now the Australian government has failed to issue a visa in connection with a major sporting event. WBC lightweight champion Devin Haney’s father/trainer Bill Haney has been denied entrance into Australia for him to work his son’s fight against the undefeated George Kambosos Jr. on June 5 in Melbourne. Bill says he has been denied entrance into Australia because of a 1992 drug conviction.
As a result, Bill Haney will not be working Devin Haney’s corner for fight against Kambosos (20-0, 10 KOs)
“I did some mistakes at 22, 23-years-old that Devin is now that hopefully, he’ll never have to make the mistakes,” said Bill Haney to Trill Boxing Talk.
Saturday, May 21, 2022
CNN and other news agencies report that a federal district court in Louisiana entered a preliminary injunction blocking the Biden administration from ending the invocation of Title 42 to allow mass expulsions along the US/Mexico border. The Title 42 order had been set to end on Monday.
A Trump appointee, Judge Robert R. Summerhays, who entered the injunction, previously was a bankruptcy judge. In the ruling, Judge Summerhays found that the plaintiffs (Arizona and some other states) had shown a likelihood of success on the merits of a claim that the Biden administration had failed to comply with the notice and comment provisions of the Administrative Procedure Act. The Biden administration has said that it will appeal the ruling.
After allowing the Trump-era policy to remain in place for months, the Biden administration had decided to lift the order later this month.
Friday, May 20, 2022
CNN: Ireland gives warm welcome to Ukrainians fleeing conflict. Asylum-seekers from elsewhere point to unequal treatment
Thursday, May 19, 2022
As reported by Bill Ong Hing and KJ for the ImmigrationProf blog, white nationalism can lead to violence and racially motivated crimes. Beyond the Buffalo shooting they describe, a second hate crime occured the same weekend in a Taiwanese Presbyterian church. David Chou, a Chinese-American US citizen, drove to Orange County, California and engaged in a mass shooting at the Irvine Taiwanese Presbyterian church that killed and critically injured mostly elderly, Taiwanese churchgoers.
According to authorities, he is from Las Vegas and drove for hours to the Laguna Woods retirement community where the Geneva Presbyterian Church hosts multiple services, including the Taiwanese service in question. He spent a social hour mingling with about 40 attendees and then executived his destructive plan. Chou chained the doors and put super glue in the keyholes before opening fire. In the ensuing chaos, parishioner Dr. John Cheng tackled him, allowing other parishioners to tie him up with extension cords. Cheng died and five people were wounded: four Asian men (ages 66, 75, 82 and 92) and an Asian woman (86-years old). Chou was booked on suspicion of murder and attempted murder; he was jailed on $1 million bail.
The murder is being investigated as a federal hate crime, but for the most part, it is being reported by mainstream media as politically-motivated rather than racially motivated. What's the difference between this hate crime and the hate crime waged by a white nationalist against Black shoppers in Buffalo that happened the same weekend? Why, like the mass killing of Asian women in Atlanta one year ago, is there a reluctance to examine crimes against Asian Americans, which have risen during COVID-19, as racially-motivated?
For some additional context, China/Taiwan relations have a complicated history and have grown more tense since the Russian invasion of Ukraine has overtaken global attention. Asian American intergroup differences and the role they play in panethnic and racial categorization is discussed in the seminal work by Yen Le Espiritu. The intermingling of race and religion in the Taiwanese Presbyterian church, and its support for Taiwanese independence from China, is studied by Caroline Chen.
Historian Lerone A. Martin reveals how J. Edgar Hoover and his FBI teamed up with leading white evangelicals and Catholics to make the FBI a squadron of white Christian soldiers trained to use any means necessary to bring America back to their God. This never told story shows how Hoover and white evangelicals and Catholics fundamentally transformed American religion and politics. Not only did this partnership solidify the political norms of white evangelicalism and contribute to the political rise of white Christian nationalism, it also established religion and race as the bedrock of the modern national security state, giving shape to today’s FBI, and setting the terms for today’s domestic terrorism debates.
Patel v. Garland Missed the Real Issue by Professor Geoffrey Hoffman
The real issue in Patel v. Garland should not have been whether a "factual determination" was subject to judicial review under 8 USC 1252(a)(2)(B)(i), but rather instead whether a legal question or, more precisely, a mixed question of law and fact, should have been subject to judicial review. The answer, if the real question was addressed, is clearly "Yes". As the majority recognized, section 1252(a)(2)(D) would have applied allowing for review over legal questions and constitutional claims.
As Mr. Patel's claims were framed and conceived of by the court, it appeared he was arguing that the IJ's and BIA's determination that he was "not credible" was erroneous. What he argued at the Eleventh Circuit according to the majority was that "any reasonable judge would have been 'compelled to conclude' that his testimony was credible and that he had made an honest mistake on the form." But, that should not have been the issue at all. Rather the real issue was as follows: Whether the IJ and BIA erred as a matter of law in applying the ground of inadmissibility for a false claim to US citizenship under 8 USC 1182(a)(6)(C)(ii)(I).
Interestingly, Mr. Patel was apparently not charged in the NTA with a false claim to US citizenship but instead with an illegal entry under 1182(a)(6)(A). Nevertheless, he was potentially subject to all grounds of inadmissibility when he applied for adjustment of status as a mode of relief from removal and therefore the burden was on him to prove that he was not inadmissible. To be inadmissible for a false claim to US citizenship, however, as provided explicitly in the statute he would have had to have made the false claim in order to seek a benefit under the INA, or a benefit under state or federal law. The text of 1182(a)(6)(C)(ii) is as follows: inadmissibility attaches to an “alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under” state or federal law. (emphasis added).
Importantly, it appears Mr. Patel would not have obtained any benefit under state law by checking the box as a US citizen since he was otherwise entitled to a driver's license in Georgia since at the time he was an applicant for adjustment and had work authorization. This fact was noted in Justice Gorsuch's dissenting opinion, at page 3,
"Under Georgia law, Mr. Patel was eligible to receive a license without being a citizen because he had a pending application seeking lawful permanent residence and a valid employment authorization document. See Ga. Comp. Rules & Regs., Rules 375–3–1.02(3)(e), (7) (2022)."
Thus, it was most obviously a mixed question of law and fact at issue since the immigration court was asked to apply the statute and specifically the sub-part of 1182(a)(6)(C) that relates to whether or not the immigrant sought to obtain any benefit under the INA, state or federal law. This means the issue was not just whether Mr. Patel was credible, but whether in checking the box he sought to obtain a benefit under state or federal law as that phrase is understood in the INA. In addition, what is or is not a benefit and what state law says or does not say is most decidedly a legal question. The IJ and BIA apparently either did not address the issue or they ruled against him because they thought he had sought a benefit. Either way, the IJ and BIA would have erred and therefore it was a "legal" error in applying the statute and not just a "factual" error in not believing Mr. Patel's testimony or ruling against his credibility.
Interestingly, this point was not made by either majority or dissent. Justice Gorsuch comes close to articulating the point, but stops short by not recognizing that the error below was not only a factual mistake but a legal one as well. The decisions of both the majority and dissent also do not recognize the following point that should be emphasized as well going forward: nothing in the decision should be read to foreclose judicial review in any case where there exists a legal question or constitutional claim under 8 USC 1252(a)(2)(D). Since all mixed questions of law and fact are a form of "legal questions" requiring de novo review then judicial review should be unaffected in such cases.
Finally, the case of Guerrero-Lasprilla v. Barr, 589 U. S. ___ (2020), is related in that the Supreme Court already has found, as noted by the majority, that application of a legal standard to undisputed facts is still reviewable even despite the jurisdiction-stripping provisions in 8 USC 1252. On pages 9-10 of the majority opinion, Justice Barrett cites and relies upon In Guerrero-Lasprilla. Although the "facts" in Guerrero-Lasprilla were undisputed that does not mean that in any case where they facts are disputed there is no judicial review. Rather, so long as there still is a "legal question" then section 1252(a)(2)(D) applies. To interpert the statue otherwise would be to misconstrue Congressional intent to shield or prohibit review of mixed questions from review.
Individual Capacity Institution for ID only
Clinical Professor, University of Houston Law Center Immigration Clinic Director
Update (May 19, 445 P.M. PST) Shoba Sivaprasad Wadhia analyzes the opinion for SCOTUSBlog here. Her conclusion:
"This case sheds light on the problems in our immigration system and the importance of legislative reform. Patel has lived in the United States for nearly 30 years. He has a wife and three children. And now Patel, who was in the process of applying for a green card, could face deportation without judicial review because he checked the wrong box on a driver’s license application. Under President Biden’s Executive Order on Advancing Racial Equity, DHS and DOJ should collect data on adjustment cases involving facts like Patel’s that may have a disparate impact on certain groups of noncitizens."