Friday, December 4, 2020
Writing in the Washington Post, Smita Ghosh, a research fellow at Georgetown University Law Center (and here) argues that the Trump administration’s recent expansion of the expedited removal policy — which allows for the removal from the United States of undocumented noncitizens without a hearing — to include any noncitizen who has been in the country for less than two years, requires the immediate attention of President-elect Biden. "In the history of expedited removals, this move is unprecedented," she writes, comparing the policy to the Eisenhower era’s "Operation Wetback" in which noncitizens by the tens of thousands were deported in 1954, in addition to over 1 million "voluntary" departures through raids and coercive tactics. "[T]he practice of expanded expedited removal warrants scrutiny . . . . [D]eportation . . . separates families, jeopardizes communities and destroys lives. It is important for each president to use the power carefully when so much is at stake," she writes.
Alejandro Mayorkas, President-elect Biden’s nominee to lead the Department of Homeland Security (DHS), brings a "fair and commonsense approach" to immigration and a proven track record of working with state and local law enforcement officials to craft policies, making him an apt choice for the job, Houston Police Chief Art Acevedo writes for Fox News. As a high-ranking immigration official during the Obama administration, "He championed smart border security and enforcement approaches that cut through bureaucratic red tape while ensuring the safety of all Americans. … It’s clear that Mayorkas understands that an immigration policy designed to create fear and chaos is not only dangerous for immigrants and their families, but also for communities as a whole. … Immigrants must feel comfortable speaking with local officials and seeking help in emergencies."
A bill that Utah Republican Senator Mike Lee pushed through the Senate aims to end what he calls discrimination in the nation’s immigration system while increasing protections for American workers. The S.386 - Fairness for High-Skilled Immigrants Act of 2019 (and here) was passed by the House in 2019, and was approved by the Senate earlier this week.
The law’s sponsor, Senator Mike Lee, has argued that capping the number of visas that can be issued to a country is “de facto country-of-origin discrimination." “Because immigrants from countries with large populations are restricted to receiving the same number of visas as immigrants from smaller countries, their wait times have ballooned, in some cases stretching on for literally decades,” he added. “Few ideas are more central to who we are as Americans than the notion that people should be judged based on their own merits as individuals and not on their race or nationality,” the Utah Republican said. “This legislation lives up to our founding principles by ending nationality discrimination in our nation’s employment-based green card system,” he said.
The per country ceilings under current law — which Lee has described as “rigid, arbitrary, antiquated, outdated” quotas — limit immigrants from any given country to no more than 7 percent of the total number of visas allocated. As a result, immigrants from nations with large populations have significantly longer wait times to get a green card than do immigrants from smaller countries.
If signed into law by President Trump, S. 386 would do away with per-country caps but only with respect to on employment-based green cards. The existing caps on family based visas, which create waits of many years, in some cases decades for immigrants from Mexico, India, China, and the Philippines, would remain intact.
I think that Senator Lee has it right on the discriminatory impacts of the per country ceilings. Kevin R. Johnson, The Beginning of the End: The Immigration Act of 1965 and the Emergence of the Modern U.S.-Mexico Border State, in The Immigration and Nationality Act of 1965: Legislating a New America 11, 11-12 (Gabriel J. Chin & Rose Cuison Villazor eds., 2015). But shouldn't the ceilings be eliminated for all visa categories, not just employment-based ones? How can we have -- as we currently do -- the same visa ceiling for Iceland (and its limited immigration demand) and China, India, Mexico, and the Philippines (with much higher demand)?
Thursday, December 3, 2020
Guest blogger: Marisela Musgrove, law student, University of San Francisco:
While it is clear that President Trump has generally not cooperated with regard to a post-election presidential transition, this could have particularly concerning implications for immigration reform. During the first half of November, the Trump Administration refused to cooperate with the Biden administration, even after the election was called in favor of Biden. 
The Biden administration has selected Ur Jaddou, a former lead USCIS official, to lead the team that will review the Department of Homeland Security during the transition. However, Jaddou would not be granted access until a Trump-appointed official from the General Services Administration wrote a “letter of ascertainment” stating the likely winner of the presidential election, which had yet to happen as of November 16th. Trump's baseless claims of election fraud and frivolous lawsuits have clearly allowed this delay to last much longer than it should.
An anonymous USCIS employee recently stated that it is “disturbing and disheartening that the agency is not permitting staff to aid the Biden transition team to ensure a smooth transfer,” and “[t]hese delays could hamper the new administration’s ability to hit the ground running on important issues facing the agency and our country.” The Trump administration has restricted immigration policies in many ways, including packing courts with conservative judges, use of border restrictions, family separations, and a recent increase in fees for asylum and citizenship applications. At the beginning of October, the fee to apply for citizenship increased from $640 to $1160 if e-filed, or $1170 filed by hard copy. These fees were already a significant barrier for many immigrants, and will likely make access to citizenship unattainable for many.
Recent reports detail that the Trump administration has been rushing to enact additional restrictive immigration policies. Many claim that Trump has made effort to make safe “third country” agreements with additional nations. Our nation has already made such agreements with Guatemala, El Salvador, and Honduras. This is especially problematic because these nations are known for their own instability and often generate a significant number of asylum-seekers themselves. There have also been efforts to enact legislation affecting international students, that will shorten the length of time that students can spend in our country. DHS recently proposed changes to student visas, as well as visas for exchange visitors and foreign media in September.
Biden has promised to bring an end to the Trump’s “Remain in Mexico” policy, a policy which has been particularly harmful for asylum-seekers. Biden has also detailed an interest in revamping our country’s seasonal worker program, which could provide great economic benefit. Additionally, Biden promised to increase the number of refugees admitted to the United States annually to 125,000, a significant increase from the Trump administration's record-low admission rate of 15,000. With regard to DACA, Biden plans to both reinstate and expand protections for DREAMers by increasing access to healthcare as well as education.
While Joe Biden’s immigration plan has promised to reunify families and counteract many of Trump's immigration policies, Biden’s reform efforts may be hindered by the previous administration’s unceasing efforts to dismantle asylum protections and immigration in general.
Some measures may be more difficult to dismantle than others, such as Trump's sweeping appointments of conservative immigration judges. The reunification process in particular could prove rather difficult given the lack of documentation and cooperation from the previous administration. Hopefully Biden will take note from his predecessor and utilize his power to enact Executive Orders wherever feasible, and possibly even pack immigration courts to undo some of Trump’s lasting damage.
 Hamed Aleaziz, Immigration Officials Have Been Told Not To Communicate With Joe Biden's Transition Team,
Justin Lessner, With Immigration Fees Set To Increase, Advocacy Groups Are Hosting “Citizenship Weeks” To Help People Get Their Documents In On Time, https://wearemitu.com/things-that-matter/with-immigration-fees-set-to-in crease-advocacy-groups-are-hosting-citizenship-weeks-to-help-people-get-their-documents-in-on-time/ (Sep. 2020)
 Justin Lessner, The Trump Team Is Ramming Through Last Minute Immigration Rules That Will Have Serious Impacts On Migrants, https://wearemitu.com/things-that-matter/last-minute-trump-immigration/, (Nov. 2020)
 Justin Lessner, Trump Finally Gave The Green Light To Start The Transition But Many Immigration Policies Are Already Affected, https://wearemitu.com/things-that-matter/biden-transition-immigration-blocked/, (Nov. 2020)
African Asylum Seekers Were Tortured, and Forced to Sign Their Own Deportation Documents, Garnering Little Media Attention
Guest blogger: Marisela Musgrove, law student, University of San Francisco:
In late October, The Guardian reported that African asylum-seekers from Cameroon had been tortured by ICE agents and in an effort to force them to sign their own Stipulation of Removal papers. After refusing to sign the papers, the men were met with inhumane treatment that allegedly consisted of, “choking, beating, pepper-spraying, breaking fingers, and threats on their lives.” One man details that ICE Agents “put me on my knees where they were torturing me and they said they were going to kill me. They took my arm and twisted it. They were putting their feet on my neck…They did get my fingerprint on my deportation document and took my picture.” Another man stated that ICE agents pepper sprayed him, sat on his chest, and forced his hand open in order to get his fingerprint on the removal papers. Others reported similarly shocking experiences.
The Guardian reports that it began receiving calls from Cameroonian and Congolese immigrants in ICE facilities who stated that they “were being subjected to threats of deportation, often accompanied by physical abuse,” according to Christina Fialho, the executive director of Freedom for Immigrants. These men were subsequently deported in an airplane full of other African immigrants in a gross violation of due process.
Some experts believe that the current administration is to blame for the violent behavior of ICE Agents. They claim that investigations regarding coercive actions have been stifled by the deportation of key witnesses in an attempt to “silence survivors and absolve ICE of legal liability.” This notion seems plausible, given that similar tactics were used by allegedly ICE in order to stifle testimony in the recent scandal surrounding forced hysterectomies in a ICE facility in Georgia. Another sentiment among attorneys is that the Trump administration has been fast-tracking deportations due to uncertainty surrounding the presidential election.
Many Cameroonian immigrants in particular have legitimate claims to asylum resulting stemming from dangerous conditions in their nation, and violence in Cameroon has been previously condemned by Amnesty International and the United Nations. The Trump Administration recently cut trading ties with Cameroon due to the country’s significant human rights violations. The idea that immigrants fleeing violence and unrest came to the United States, only to be tortured and mistreated by government officials is simply appalling and contrary to American values. The United States was once lauded for its (seemingly) progressive immigration practices, and now ICE agents have been granted significant room for egregious and coercive tactics. These agents are facing little to no repercussions for their actions due to the structure of our nation’s immigration system and the nature of plenary power itself.
While immigrants in general represent a population that can be vulnerable to discrimination and injustice, those from underrepresented racial and ethnic groups can be particularly vulnerable due to both race and immigration status. In an immgration context, we do clients a disservice by failing to pay special attention to the intersections of race/ethnicity, class, and immigration status. The lack of collective outrage surrounding this situation surprised me at first, but then seemed all too familiar. American citizens have historically been able to turn a blind eye to the injustices facing immigrant groups, especially where racial discrimination is involved, often assuming that the same treatment could never happen to them thanks to their citizenship status. However, I am of the firm belief that if our government’s officials can violate the rights of one group, it is only a matter of time before they do so to another.
 Andrea Reindl, In Bombshell Report, ICE Agents Are Accused of ‘Torturing’ African Asylum-Seekers to Get Them to Sign Their Own Deportation Documents, https://wearemitu.com/things-that-matter/ice-agents-torturing-african-asylum-seekers/ (Oct. 2020)
 Julian Borger, US Ice officers 'used torture to make Africans sign own deportation orders, 'https://www.theguardian.com/us-news/2020/oct/22/us-ice-officers-allegedly-used-torture-to-make-africans-sign-own-deportation-orders (Oct. 2020)
 Andrea Reindl, In Bombshell Report, ICE Agents Are Accused of ‘Torturing’ African Asylum-Seekers to Get Them to Sign Their Own Deportation Documents, https://wearemitu.com/things-that-matter/ice-agents-torturing-african-asylum-seekers/ (Oct. 2020)
Guest blogger: Vincent Goble, law student, University of San Francisco:
President-elect Joe Biden has an ambitious immigration agenda. While some of his policy objectives require either approval of Congress or use of executive orders, another—restoring the nation’s long-held commitment to refugees seeking asylum by improving access to the immigration courts—faces considerable administrative challenges.
The President-elect has proposed doubling the number of immigration judges as a measure to alleviate the backlog of over 1 million immigration cases. There are approximately 520 immigration judges nationwide, so each judge’s docket contains about 2,000 cases. Although increasing the number of judges would help alleviate the backlog, the backlog itself, as far as it is representative of the poor accessibility to asylum, is only the tip of the iceberg.
Immigration courts are administrative courts located within the Executive Office of Immigration Review (“EOIR”), an arm of the Department of Justice (“DOJ”). Since the DOJ is a part of the executive branch of government, the President, through the Attorney General (“AG”), can drastically change the arc of immigration cases by unilaterally changing administrative rules and frameworks. The Trump administration has done so at all three of the levels at which the EOIR reviews immigration cases. Without additional reform measures that detangle this legacy, simply doubling the number of judges would likely accelerate Trump’s immigration agenda.
First, under the Trump administration, AGs Sessions and Barr have expanded the use of certification, a process by which the AG may unilaterally overrule the BIA and rewrite regulations and laws that affect the outcome of immigration cases. In four years, the current administration has matched the number of times that the Bush administration applied certification and quadrupled the number of instances in which either President Obama or President Clinton applied it (note: Presidents Obama, Bush, and Clinton each held office for eight years). While proponents of certification point to its usefulness in correcting erroneous BIA rulings, under Trump, certification has been a tool to align judicial review with anti-asylum enforcement policies.
The Biden administration’s future AG now faces a catch-twenty-two regarding certification. The AG can either restore it to a narrowly tailored corrective purpose or apply it expansively and routinely to advance policy. Taking the former approach would be a concession to Trump’s policies, since the policies that AGs Barr and Sessions advanced through certification would continue as guiding precedent for immigration courts. Taking the latter approach would entrench the political polarization of the Trump era and increase the likelihood that immigration courts will bend to the policy whims of successive administrations.
Second, over the past two years, AG Barr has demoted numerous career BIA judges while also expanding the BIA’s total number of judges from 17 to 23. As a result, he has appointed fourteen of its current members. AG Barr’s influence over the BIA has shifted its ideological make-up. Six of AG Barr’s selections are extremely unsympathetic to asylum applicants, their combined asylum grant rate for the fiscal year 2019 was 2.4%, compared to the average grant rate of 29% for all non-BIA immigration judges during the same time period. Two of his six appointments did not issue a single grant of asylum during 2019.
But appointing extremists to the BIA was not enough, AG Barr also changed EOIR rules to expand his and the BIA’s ability to assert influence over the outcome of immigration cases. One rule allows the AG to unilaterally order a BIA-issued decision to become precedent, whereas the prior rule required the BIA to vote on whether to publish a decision and thereby create precedent. Another rule requires federal courts hearing appeals from a BIA decision to assume the BIA properly reviewed all issues in a case, even if the BIA’s decision did not explicitly address an issue. Last, a third rule allows the BIA to decide issues that neither party has raised on appeal.
While the future administration can reverse the regulatory changes described above, doing so will require wrangling and litigation as the new rules are already being applied to current cases. Furthermore, in response to AG Barr’s overhaul of the BIA’s members, the new administration could act in kind and demote Trump’s appointees. But such a move entrenches the politization of the courts and diminishes the long-term stability of the system.
A third wave of administrative rule changes occurred at the immigration court level. In 2018, AG Jeff Sessions introduced a rule that stripped judges of their discretion to terminate cases that were unlikely to result in removal. While President Trump was pushing for expeditious resolution to cases, the rule change had the opposite effect. Where there was already a backlog of 500,000 immigration cases when Trump took office, the number is now over 1.2 million. Also in 2018, the EOIR introduced a production quota that requires immigration judges to complete 700 cases per year, or else earn a “needs improvement” grade on their job performance review. This workplace bind has pushed many judges into early retirement and has opened the door for President Trump to appoint a record number of immigration judges, most of whom are diametrically opposed to asylum.
There are calls for an autonomous Article I immigration court system that would include safeguards to prevent Trump-like manipulation in the future. However, the creation of such a court is unlikely in the short-term given the split control over the houses of Congress. This does, however, remain a worthwhile long-term goal.
In the short-term, if a President Biden wants to both relieve the backlog of cases at the EOIR and restore access to asylum, he must systematically dismantle the Trump administration’s changes. This should include the use of certification and the demotion of AG Barr’s appointments to the BIA. Not doing so is an unacceptable concession of power. Trump has destroyed the bipartisan norms of the federal government’s administrative state by politicizing its every mechanism. With the playing field fundamentally redefined, bold moves are necessary beyond simply doubling the number of immigration judges.
Guest Blogger: Frances Asha, law student, University of San Francisco
The Covid-19 pandemic has harmed many in the United States through job loss, health scares, and mental health exhaustion from isolation and other added stress, but vulnerable groups such as undocumented immigrants have been hit the hardest. Those without documents have more difficulty accessing healthcare and pandemic-related government aid and they will also unfortunately have a particularly hard time accessing a coronavirus vaccine if the vaccine rollout program does not take their fears and valid concerns about privacy into account.
New York Governor Andrew Cuomo along with other governors have received a request from the Department of Health and Human Services to provide the federal government ID numbers for all coronavirus patients once an approved vaccine is released and vaccine distribution starts. Cuomo does not plan to simply comply with the request due to how unnecessary providing that kind of information is and has even stated, "Why would you possibly need a person's driver's license number or Social Security number or passport number before they receive a vaccine? Why? There is no legitimate health reason…This is an administration that has — from day one with the wall — been relentless in their pursuit of undocumented people. This is just another example of them trying to extort the state of New York to get information that they can use at DHS and ICE to deport people” While it is important to track the spread of Covid-19 and collect relevant data during the rollout of the upcoming vaccinations, providing identification as has been requested, especially given the history of the Trump administration, seems more like a ploy to track undocumented persons rather than for collecting useful data related to public health.
Gov. Cuomo along with 54 activist groups sent a letter to U.S. Department of Health and Human Services Secretary Alex Azar proposing “a modified system that tracks vaccinated individuals but does not reveal private information such as Social Security numbers, passport numbers, or driver license numbers. The letter also demands that the government must agree to keep this personal information private and not share it with any non-health agency.” This alternative tracking system better protects private information and will allow those without documents to feel safer getting vaccinated and thus is also better for improving public health. Vaccine program inclusivity benefits the whole community. As a matter of fact, over 80% of the public would need to be vaccinated in order for herd immunity to be effective. Ultimately, as stated in Cuomo’s letter, "a successful program administering the vaccine is critical to national health. But for the vaccination program to be successful, it must have the full participation of all the American people. It is in everyone's interest for all of us to work together to encourage our respective constituents to participate in the vaccination program. Further, it is certainly not in the national interest for individuals to have valid concerns preventing such participation, and the undocumented community has specific and valid cause for concern in providing unnecessary, irrelevant, and sensitive information to federal agencies."
Minimizing pandemic- related death, hospitalizations, and job loss is reliant on an effective vaccine distribution program. Vaccines could begin distribution as early as December of this year, so an inclusive and accessible vaccine rollout program that ensures full or at least nearly full public participation needs to be solidified as soon as possible. Taking into consideration vaccine accessibility for the undocumented immigrant community and other vulnerable groups is both a public health and a humanitarian issue that must be addressed with a compassionate and effective solution such as what is being proposed by Governor Cuomo and immigrant and health advocates.
 Chris Sommerfledt and Denis Slatttery, Trump admin might use COVID vaccine program to target undocumented immigrants: Cuomo, New York Daily News (Nov. 2, 2020), https://www.nydailynews.com/news/politics/new-york-elections-government/ny-coronavirus-trump-vaccine-immigrants-cuomo-20201102-v7i33zwgfndyldhysjbaqc7fny-story.html
 Kate Lisa, Cuomo’s letter to Health and Human Services demands better vaccine prep, Johnson Newspaper Corp. (Dec. 1, 2020), https://www.nny360.com/communitynews/healthmatters/cuomo-s-letter-to-health-and-human-services-demands-better-vaccine-prep/article_c6499ae6-5712-52f4-b276-9e415a697328.html
 Zoe Christian Jones, Cuomo urges feds to protect undocumented immigrants in vaccine rollout, CBS News (Dec. 1, 2020), https://www.cbsnews.com/news/cuomo-vaccine-distribution-federal-aid/ See also New York State, Governor Cuomo Issues Letter to Secretary of Health and Human Services Urging Support for Underserved Communities and Protection for Undocumented Immigrants in Vaccine Distribution Program, New York Gov. (Dec. 1, 2020) https://www.governor.ny.gov/news/governor-cuomo-issues-letter-secretary-health-and-human-services-urging-support-underserved
 News 12 Staff, Advocates say immigrants fear legal repercussions of data sharing needed for COVID-19 vaccine, News 12 Hudson Valley (Dec. 1, 2020) https://hudsonvalley.news12.com/advocates-for-immigrants-frustrated-with-federal-vaccine-plan-over-id-requirement
 Supra note 4.
Guest blogger: Leighton Lee, law student, University of San Francisco
President-Elect Joe Biden has a laundry list of first day promises including producing comprehensive immigration legislation, which would create a pathway for citizenship nearly 11 million migrants already living in the United States. President-elect Biden has also promised to make the Deferred Action for Childhood Arrival (DACA) permanent during his first day in office. The Trump Administration has repeatedly targeted DACA during his tenure as president, but was blocked back in June by a 5-4 Supreme Court decision noting that Trump’s administration had not gone given adequate justification in terminating the program.
Outside just his first day promises and within the first 100 days of his presidency, Biden has vowed to end family separation at the border, as well as immediately rescinding the Trump era Muslim travel ban. Biden has also pledged to dismantle many of the Trump policies including the construction of the border wall at the southern border, reforming the asylum system and plans to increase government supervision over I.C.E. and Customs and Border Protection agents. These are only a handful of the promises that President-elect Biden has made to the American people. But are these promises enough?
President-elect Biden said he will stop the construction of the U.S.-Mexico Border wall that was a pinnacle of the Trump administration’s rampage against immigration, and he will no longer take money from the Pentagon to fund the wall. However, this administration will not take down the portions of the wall that have already been built. This is not enough to mend the immense partisanship that has emerged in this country.
The Biden campaign ran an ad during the presidential race vowing to reunite the 545 children that have been separated from their families. President-elect Biden has said that on his first day he will issue an executive order creating a task force to accomplish that goal. However, it seems as though the immigration task force has taken a back seat to the COVID-19 task force. Biden has recently unveiled the members that he has chosen to form the COVID-19 task force, however, there has been no mention of the immigration task force outside of the recommendations made in the Biden-Sanders Unity Task Force Recommendations. This is not enough to remedy the trauma these families, and these children, have undergone.
Empty promises and figurehead task forces are not enough to change the American immigration system. Rolling back the damage that Donald Trump has caused is not enough; Biden must enact new and lasting policy change to make a difference.
Will Biden be enough? Only time will tell.
Contemporary immigration policy: the rise of child anxiety and its harmful effect on children’s development
Guest blogger: Gemma Malki, law student, University of San Francisco
Before Donald Trump’s presidency, the Department of Homeland Security (DHS) had reported high rights of deportations involving parents of U.S. citizen children. The number had increased from 72,410 in 2013 to 28,860 in 2016. However, in the years prior to the increase, DHS and Immigrations and Customs Enforcement (ICE) put in a series of policies to decrease the collateral effect of deportations on the children whose parents were arrested to be deported. The policies emphasized the use of discretion when arresting or detaining a parent or primary caregiver. The policies also included options to deter harmful effects on children allowing a parent facing removal to make arrangements for their child or to allowing detained parents to participate in welfare proceedings.
However, immigrant families were met with stricter tactics following the Trump Administration’s immigration policies. The Trump Administration sought to “protect” national interests, by instilling harsher deportation procedures, including increased number of enforcement agents, encouraging collaboration between ICE and local police and, most importantly, prioritization deportation, regardless of its harmful effect on children. The rhetoric behind protecting national interest contributes to the notion that migrants or refugees are equated with the threat or destruction of the U.S.’s national interests. The growing concern among scholars is that the rhetoric from the current administration employs “fear, loathing, and spectacle,” in an attempt to demonstrate concern for the general welfare as expressed in public policy.
Increased deportation and anti-immigrant rhetoric have seen an increase in children’s’ anxieties and expressions of fear. A 2018 study showed a strong correlation between President Trump’s immigration policies and its developmental harm on children. The study engaged with educational providers all over the U.S. regarding the impact of the policies on the children in their classrooms. Many children do not actually know the contents of immigration policy, but they reiterate what they hear around them.
Firstly, the main fear among children is that their parents will be taken away from them. Teachers around the country reported increases in separation anxiety, including tearful departures between children and their parents when they were dropped off from school, the children in fear that their parents will not be home when they return. Some students were heard saying that they were “afraid their mom would be sent to Mexico,” even though their mother was not even from Mexico.
Secondly, the fear and anxiety has manifested in behavioral issues in the classroom. Some teachers recounted tales of decreased verbal engagement, some students’ refusal to speak at all, and increased aggression and hyperactivity among students due to the frustration and fear. Teachers noted that the fear started to embrace students whose parents were U.S. citizens. Because the children cannot grasp the context of immigration, they could differentiate whether their parents deported. The fear surrounding deportation or immigration enforcement significantly destabilizes the learning of all students in a classroom, regardless of a child’s status. Without understanding the context of how immigration and deportation works, nonimmigrant children noticed the anxieties of their peers and started to fear their parents would be taken from them.
There is also extreme trauma experienced by children who witness their parent’s arrest (during a raid, for example) or whose parent is not home when they return from school. The study details an account of a four-year old girl whose father was arrested by ICE outside her school in Los Angeles. Stories such as this have led to children being withheld from school because their parents are too afraid to take their children to schools. The withdrawal from school has led to increased developmental issues due to isolation and behavioral reactions to the trauma.
Immigration reform advocates have called on Congress and the Administration to once again implement discretionary policies within DHS and ICE when making arrests. Specifically, surprise raids or arrests outside of schools should be mitigated by the collateral impact it has on the children of the parents. Policy advocates have called for significant decrease in resources between ICE and local law enforcement, to dispel fears of community police officers. Though ICE and DHS have imposed a sensitivity locations policy, the policy should be strongly enforced and expanded. Advocates have called on DHS to ensure that detained or deported parents are able to contact their children and ensure their whereabouts. The priority, either within the U.S. schools and homes or within detention facilities, immigrations agencies should work to mitigate permanent harm done to children at the expense of strict enforcement policies.
 American Immigration Council, Summary of Executive Order “Enhancing Public Safety in the Interior of the United States,” https://www.americanimmigrationcouncil.org/sites/default/files/research/summary_of_executive_order_enhancing_public_safety_in_the_interior_of_the_united_states.pdf.
 Scott B. Astrada, Truth In Crisis: Critically Examining Immigration Rhetoric and Policy Under The Trump Administration, 22 Harv. Latinx L. Rev. 7 (Spring 2019).
 Nickolas Bagley, Our Children’s Fear: Immigration Policy’s Effects on Young Children, CLASP, https://www.clasp.org/press-room/news-clips/our-children%E2%80%99s-fear-immigration-policy%E2%80%99s-effects-young-children.
This 3D virtual tour of New York City's original Chinatown (in Manhattan) is worth a look! Hint: it loads best with a fast and stable internet connection.
The Biden administration will face a number of challenges in changing direction on the Trump administration immigration policies. As this PBS story highlights, simply ending the Muslim ban and maintaining the Deferred Action for Childhood Arrivals policy will not be sufficient to bring about lasting change: "immigration reform advocates, former immigration officials, attorneys and others said the planned changes won’t lead to long-term improvements unless Biden overhauls the nation’s broken detention and immigration court system, which is currently overwhelmed with a backlog of more than 1 million pending asylum cases built up over multiple administrations." (bold added). Biden during the campaign and after has had to explain the immigration record of President Obama.
Some advocates say that Biden must make long-term improvements to the immigration and asylum process, while also securing comprehensive immigration reform. President Obama failed to secure long-awaited immigration reform.
Maria Dinzeo for Courthouse News reports on a U.S. District Court ruling (Chamber of Commerce of USA v. U.S. Department of Homeland Security) that the Trump administration failed to comply with necessary procedures to implement sweeping visa restrictions affecting thousands of professionals working in the United States on H-1B visas. The Department of Homeland Security and Department of Labor failed to comply with notice and public comment requirements when it issued new restrictions on the H-1B visa program last October, citing the economic crisis caused by the pandemic.
The new rules require U.S. employers to raise wages for highly skilled workers (tech industry workers, doctors, accountants, professors, scientists, architects, and others), to deter U.S. companies from hiring foreign workers. The rules also restrict hiring arrangements under which third-party employers recruit foreign workers for other businesses. Visa applicants also must hold a degree in their specific field or “specialty occupation.”
U.S. District Judge Jeffrey White noted that the Labor Department and Homeland Security unveiled the H-1B visa rules just a week after he enjoined the enforcement of President Donald Trump’s June proclamation suspending certain types of non-immigration work visas through the end of the year.
He said the government’s response “appears to be the embodiment of the adage ‘if at first you don’t succeed, try, try again.’”
In a statement, U.S. Chamber of Commerce immigration policy executive Jon Baselice said White’s order helps alleviate industry worries about what the rules might mean for hundreds of thousands of jobs: “This ruling has many companies across various industries breathing a huge sigh of relief today,” he said, adding the rules “had the potential to be incredibly disruptive to the operations of many businesses.”
Click here for the Economic Times report on the court ruling.
Immigration Article of the Day: The Authority of International Refugee Law by Evan J. Criddle and Evan Fox-Decent
As COVID-19 has spread around the world, many states have suspended their compliance with a core requirement of international refugee law: the duty to refrain from returning refugees to territories where they face a serious risk of persecution (the duty of non-refoulement). These measures have prompted some observers to question whether non-refoulement will survive the pandemic as a non-derogable legal duty. This Article explains why the international community should embrace non-refoulement as a peremptory norm of general international law (jus cogens) that applies even during public emergencies, such as the coronavirus pandemic. Viewed from a global justice perspective, the authority that international law entrusts to states—including the sovereign power to regulate migration across national borders—can be legitimate only if states refrain from refoulement. For international legal order to claim to possess legitimate authority over exiled outsiders, it must treat non-refoulement as a jus cogens norm. A failure to regard non-refoulement as a peremptory norm would thus strip the international legal system of its claim to legality vis-à-vis asylum seekers, supplanting the rule of international law in this context with mere coercive force. To test this account of the authority of international refugee law, the Article surveys closed-border policies that states have adopted in response to COVID-19 and explains why the associated restrictions on non-refoulement are unjustifiable and incompatible with the rule of law. Even during a genuine national emergency, such as the COVID-19 pandemic, receiving states cannot return refugees to persecution without subverting their own claims to legal authority.
Wednesday, December 2, 2020
Balkinization Symposium on Adam Cox and Cristina Rodriguez, The President and Immigration Law (Oxford University Press, 2020)
- Whose Immigration Law Is It? by Shalev Roisman
- Presidential Immigration Federalism by Pratheepan Gulasekaram
- What is the Presidency? by Daphna Renan
More contributions are coming down the pike!
A new report released today by the Center for American Progress highlights the important contributions of 10.4 million undocumented immigrants in the country today, including the work of an estimated 5 million undocumented essential workers helping to fight the coronavirus pandemic and keep the country moving.
An estimated 7 million undocumented immigrants are helping to lift up major sectors of the workforce, 5 million of whom are serving alongside their fellow Americans on the front lines of the coronavirus pandemic response as farmworkers, construction laborers, custodial staff, home health or personal care aides, and more.
Key findings in the report include:
- Undocumented immigrants make up approximately 3.2 percent of the U.S. population, but 4.4 percent of the country’s workforce.
- There are more than 7 million undocumented immigrants working in the United States.
- In 41 states and Washington, D.C., there are more than 10,000 undocumented workers, and in 16 states that total is greater than 100,000.
- In every state, undocumented immigrants make up a larger share of the workforce than they do the total population.
- California and Texas are home to the largest undocumented workforce, with 1.4 million and 1.2 million undocumented workers, respectively.
- More than 1.4 million undocumented immigrants work in construction, accounting for 13 percent of all construction workers.
- Nearly 1 million undocumented immigrants work in accommodation and food services, approximately 8.4 percent of all workers in the industry.
- 710,000 undocumented workers make up 10 percent of the administrative and support and waste management industries, and another 489,000 undocumented workers in nonpublic administration services are also overrepresented in the field.
- Approximately 25 percent of workers in farming, fishing, and forestry occupations are undocumented—although this is likely an undercount—as are 16 percent of workers in construction and extraction occupations.
- 15 percent of workers in building and grounds cleaning and maintenance occupations are undocumented.
- 7 percent of workers in food preparation and serving-related occupations are undocumented.
- 7 percent of workers in production occupations are undocumented.
- 6 percent of workers in transportation and material moving occupations are undocumented.
- Nearly 1 in 5 landscaping workers, maids or housekeepers, and construction laborers are undocumented immigrants.
- Nearly 30 percent of agricultural workers or painters are undocumented.
Emma Israel and Jeanne Batalova for Migration Information Source report that, despite decreases in population size over the last decade, Mexicans remain the largest group of immigrants in the United States, accounting for about 24 percent of the nearly 45 million foreign-born residents.
In 2019, there were about 10.9 million Mexican-born individuals living in the United States. This population declined by almost 780,000 people, or 7 percent, between 2010 and 2019, due in part to increased immigration enforcement and in part to a strengthening Mexican economy. In recent years, the number of Mexicans leaving the United States has outpaced the number of new arrivals, although the country remains far and away the top destination for Mexican emigrants. Since 2013, Mexico has ceased to be the top country of origin for recent immigrants to the United States, overtaken by India and China.
Figure 1. Mexican Immigrant Population in the United States, 1980-2019
Federal Court Affirms New York's Green Light Law Allowing Undocumented Immigrants To Seek Driver's Licenses
The eligibility of undocumented immigrants for state-issued driver's licenses has been an issue of controversy in recent years. A growing number of states have passed laws allowing undocumented immigrants to secure licenses. Sophia Chang for Gothamist reports on recent developments on the issue in New York:
"A federal court has upheld New York’s law allowing undocumented immigrants to apply for driver's licenses against a lawsuit brought by an upstate county clerk who claimed the law would make him personally liable for violating U.S. immigration policy.
In a ruling issued Monday, the U.S. Court of Appeals for the Second Circuit affirmed a lower court’s dismissal of Erie County Clerk Michael Kearns’s 2019 lawsuit seeking to block the state’s Green Light law.
Kearns had sued Governor Andrew Cuomo, state Attorney General Letitia James, and New York’s Department of Motor Vehicle Commissioner Mark Schroeder on grounds that he could be prosecuted under federal immigration law for performing certain duties under the Green Light law, which shields the personal data of applicants from federal law enforcement.
Once the Green Light law took effect last December, Kearns posted “If you see something, say something” signs in the Erie County auto bureaus with an ICE tipline phone number, according to WGRZ. He had his staff take photocopies of foreign paperwork even though that’s against state policy, the Buffalo News reported: `The state has informed county clerks they are not allowed to save any of the foreign identification proofs presented to them, but Kearns's staff is making photocopies of all foreign proofs. Kearns cited a passage in the law that says documents may be retained ‘for a limited period necessary to ensure the validity and authenticity of such documents.’'”
Judge Barrington Parker wrote the unanimous opinion, which affirmed dismissal of the suit on standing grounds.
Professors Lucy Bassett and Hirokazu Yoshikawa for Scientific American ("Our Immigration Policy Has Done Terrible Damage to Kids") argues that the Biden administration should take steps to remedy the grievous damage done to immigrant families by the Trump administration.
"The harm to our nation’s refugees, asylees, legal immigrants and mixed-status families has been extreme in the current administration, but not irreversible. The Biden-Harris administration can take immediate science-based action to improve the lifelong health, economic and educational outcomes of immigrant-origin children, youth and their families nationwide." (bold added).
The four steps identifies in the article:
1. Prioritize family reunification.
2. Ensure that children’s development is a priority at the U.S.-Mexico border.
3. Upon entry to the U.S., improve care and appropriate custody of children.
4. Ensure access to social safety nets for immigrant children and families.
The Dreamer Fund has announced its third #Cafecito panel. Register for, "Cafecito Con Los Hermanxs," a conversation that will center on Black migration to the U.S. and Black immigrant advocates. Register Today.
This article argues that climate change cannot be addressed unless we dismantle the racial hierarchies that have facilitated massive, unchecked resource extraction. Drawing upon the framework of racial capitalism, the article explains how racism enables states and corporations to pursue policies catastrophic to the planet and its inhabitants because the most immediate and severe harms are inflicted on stigmatized populations in the sacrifice zones of the fossil fuel economy. From Cancer Alley to the oil fields of the Middle East, racialized populations have been subjected to the physical violence of invasion and occupation as well as the “slow violence” of polluting industry. Persons classified as non-white are also disproportionately susceptible to climate-related disasters and displacement because they reside in vulnerable geographic locations and have been deprived of the resources to protect themselves from harm. International law has mounted an inadequate response to the climate crisis. The climate treaties have failed to curb global temperature increases or to provide sufficient adaptation assistance to climate-vulnerable states and peoples. Even though climate change threatens to displace millions of people, neither the 1951 Refugee Convention nor the climate treaties requires states to admit climate-displaced persons. In the absence of a binding legal framework, several emerging law and policy responses to climate displacement threaten to reinforce racialized hierarchies and to trap large segments of humanity in places that are becoming uninhabitable. The article critiques these approaches and offers alternatives grounded in the perspectives and priorities of climate-vulnerable states and peoples.