To read this Article, please click here: Rhetoric and the Creation of Hysteria.
Monday, December 5, 2022
Professor Beth Zilberman joined the faculty in summer 2022 to launch the Immigration Law Clinic at Willamette University College of Law and strengthen immigration course offerings. The fall semester has included a successful soft launch for the Clinic.
Nearly all students enrolled in the Clinic represent clients seeking asylum based on a fear of persecution. Clinic students have also worked on a variety of cases under the Alien Tort Statute and the Torture Victim Protection Act, which allow noncitizens to bring tort claims for violation of the law of nations.
Clinic students also engage in human rights fact-finding and reporting. Most recently, the Clinic prepared Human Trafficking and Native Peoples in Oregon. The report was in follow-up to Modern Slavery in Our Midst: A Human Rights Report on Ending Human Trafficking in Oregon.
The anti-immigrant tenor of the debate leading to the need for a wall, the frustrations relating to it, and its resulting political opportunism are not limited to the United States. Throughout the Western Hemisphere and Europe, political leaders are using similar rhetoric of the immigrant “other” in order to rally the base, deflect criticism, and distract public opinion. This article examines this political phenomenon in the twenty-first century by comparatively evaluating the cases of the United States, the Dominican Republic, Argentina, Brazil, and Chile—five democratic nations in the Western Hemisphere in which immigration became a major issue and immigrants are routinely scapegoated by those in power. In doing so, this article answers the following questions. First, why has immigration become a major campaign and policy issue in these countries since the turn of the century? Second, how and why have these nation-states responded to the perceived ills of immigration by enacting laws and policies designed to curb it and deal with existing immigrants? Third, how have populist politicians exploited xenophobia for political gain and—in doing so—have fueled ultra-nationalism across the hemisphere? And fourth, what has been the role of the United States (as the region’s hegemon) in promoting and/or abetting these anti-immigration policies?
To read this Article, please click here: Rhetoric and the Creation of Hysteria.
ff convicted, Juan David Ortiz faces life in prison without parole. Prosecutors are not seeking the death penalty. The trial started on November 28 and is set to continue later today.
Ortiz, a Navy veteran, was a Border Patrol intelligence supervisor at the time of his arrest in 2018. Ortiz, who officials have said wasn’t on duty during the killings and wore civilian clothes, is accused of killing four women. Each woman was shot in the head and left along roads on the outskirts of Laredo, Texas.
Juan David Ortiz told detectives in the video played in court last week that as he drove along a stretch of road that the women frequented. He told investigators he wanted to “clean up the streets,” and referred to the women as “trash” and “so dirty.”
Ortiz’s attorney, Joel Perez, argued that investigators had jumped to conclusions, and that his client’s confession was “coerced.” He said his client was “broken” and “suicidal” when he made the confession and told investigators he'd had blackouts. Perez said that Ortiz told the investigators that he was a war veteran who'd been experiencing post-traumatic stress disorder.
Sunday, December 4, 2022
The immigration case of Anna Sorokin, whose elaborate fraud captured the world's imagination, continues. The subject of the Netflix series "Inventing Anna", Sorokin served about four years in prison after found guilty of a variety of criminal charges. Sorokin had claimed to be a German heiress named Anna Delvey who had a $60 million inheritance and was raising funds to launch a Manhattan social club. She swindled hundreds of thousands of dollars from friends, banks and New York City luxury hotels to fund a lavish lifestyle.
' ' ' '
Sorokin, who acknowledges that she made `so many bad choices,' has now become one of the most high-profile immigration detainees in recent memory, a famous name in a sea of anonymous petitioners.
Authorities say Sorokin, who went by the name Anna Delvey for years, overstayed her U.S. visa and must return to Germany.
She is fighting that move, arguing that while she may have been able to appeal her case from Germany, `it’s not the same' as doing so from inside the U.S. She was released from prison in October.
The process, she told the Hill in a recent phone interview, has been uncertain and frustrating.
`They don’t have rules for the judges or for the BIA, which is the Board of Immigration Appeals, to make a decision. If you file something, they can take a year or two or three — or like one week — to give you a response. And there are no guidelines. You know, so that’s pretty frustrating, especially when you’re in jail,' Sorokin said.
`There’s no guarantee that you will ever get a response,' she added."
The mania of the World Cup has gripped the world. The US team lost a valiant effort against the Dutch team yesterday.
Throughout the coverage of the soccer, there has been an undercurrent of concern about the host Qatar's treatment of migrant workers. In that vein, NPR reports that:
"Qatar’s World Cup soccer stadiums hold a dark truth. Migrant workers, many from South Asia, bore the burden of building the tiny Gulf nation’s infrastructure — many bringing home stories about grisly working conditions and broken promises. And thousands died, according to human rights investigators. Vinod Kumar was one of them."
Saturday, December 3, 2022
In "After declining early in the COVID-19 outbreak, immigrant naturalizations in the U.S. are rising again", Jeffrey S. Passell and D'Vera Cohn for the Pew Research Center provide data showing that "[a]fter a sharp drop in naturalizations in the early stages of the coronavirus pandemic, immigrants in the United States are becoming citizens in numbers not seen for more than a decade."
According to the data,
"[t]he countries with the smallest proportion of lawful immigrants who are naturalized U.S. citizens (among those with at least 100,000 naturalized citizens overall) are El Salvador, Guatemala, Honduras, Japan and Mexico. Fewer than half of lawful immigrants from these countries are naturalized citizens.
In contrast, the countries with the highest proportion of lawful immigrants who have been naturalized include Cambodia, Guyana, Iran, Laos, Poland, Portugal, Romania and Vietnam. At least 80% of immigrants from these countries have gained U.S. citizenship." (bold added).
For a summary of the report from The Hill, click here.
Friday, December 2, 2022
Can a plaintiff walk into court, challenge a federal regulation, and win a victory that halts the entire government’s ability to enforce that regulation anywhere, against anyone—even parties that played no role in the litigation?
The answer to this question is important, because this tactic has rapidly become an obstacle to governance.
Under President Barack Obama, conservative judges began using a specific power to “set aside” policies, granted to them by a provision of a 1946 law, to halt executive policies nationwide, claiming that Congress intended to award them this sweeping power. Left-leaning judges used the tool to limit President Donald Trump’s efforts to rewrite federal statutes, particularly asylum law, and prompted a huge backlash among Republicans. Today, with President Joe Biden in office, conservative judges have transformed the power to “set aside” policies into an unprecedented weapon of obstruction, voiding agency rules and executive policies so frequently that they have turned the federal judiciary into a kind of shadow president with a permanent veto over the actual, elected president.
It is not actually clear, though, that judges even have the legal authority to wipe federal policy off the books. A strictly textualist interpretation of federal law strongly suggests that they do not. To the contrary, the fact that federal courts have unlawfully expanded their power to interfere with duties of the executive branch seems like a direct attack on the separation of powers.
He goes on to praise the Solicitor General's courage for pointing out the problem to a bench filled with former D.C. Circuit appellate justices -- Roberts, Kavanaugh, Thomas, Jackson -- who, as Roberts says, considered vacatur a staple of practice and used it "five times before breakfast." Her argument is based on a reading of the Administrative Procedure Act that favors a person being able to "set aside" government action against that particular plaintiff under a court's power to bind the parties before it. That practice contrasts with a raft of nationwide injunctions that set aside a policy against everyone. The new interpretation has become increasingly common. Stern calls this the "power of universal nullification" and says courts traditionally have not had this power.
In US v. Texas, Solicitor General Prelogar asserted that the judge who voided Biden’s immigration priorities had no authority to do so, because the APA does not allow vacatur. Her argument built on the work of University of Virginia School of Law Prof. John Harrison and Notre Dame Law School Prof. Samuel Bray, who have shown that by directing courts to “set aside” an unlawful rule, Congress simply meant that courts could reverse the judgment of the agency, and issue relief to the parties before it—rather than to the whole world.
Roberts was incredulous about her argument: “Your position on vacatur,” he told her, “that sounded to me to be fairly radical and inconsistent with, for example, those of us who were on the D.C. Circuit—you know, five times before breakfast, that’s what you do in an APA case. And all of a sudden you’re telling us that, no, you can’t vacate it, you do something different. Are you overturning that whole established practice under the APA?”
Following this blast of indignation, Prelogar backtracked a bit. But she then pointed out that the Justice Department has, in fact, raised versions of this argument during the administrations of George W. Bush, Barack Obama, Donald Trump, and now Joe Biden.
She also explained that the DOJ’s theory would end the bizarre process that has arisen over the last decade: Plaintiffs spread out across the country, filing lawsuits with multiple district courts, in the hopes of convincing just one judge to “set aside” a policy nationwide. Once a judge takes the bait, the government is handcuffed unless (or until) that judge is reversed by a higher court, which can take years of litigation. Even if judges in other states and circuits disagree, they have no power to overrule a different district court."
Immprof Amanda Frost writes about the use of national injunctions generally here and in US v. Texas here. Their importance would continue so long as the Supreme Court permits federal judges to keep setting aside policies from presidents they don't like. Prelogar’s mistake may have been assuming that the court would be willing to curb the power of conservative judges under a Democratic president when it may be unwilling to do so in any circumstance.
A short story from NPR on "new" climate refugees: "They flee their homes not solely because of climactic changes that make it difficult to earn a living but also because of violence sparked by the competition for dwindling resources."
Canada has stiff barriers to granting asylum, yet the surge in Mexicans seeking refuge there persists. Some in Canada cite social media, including YouTube and TikTok videos “talking about how easy it is to come to Canada.” Mexicans also do not need a visa to travel there. And, said one social outreach coordinator, they think it’s safer than the United States, where “they are put in cages. ... People do not feel safe or protected.” Click here for the Associated Press story with details.
Thursday, December 1, 2022
In After a Slump, Legal Immigration to the United States Is Returning to Pre-Pandemic Levels, Muzaffar Chishti and Julia Gelatt for Migration Information Source concludes that legal immigration to the United States appears to have bounced back from steep declines sparked by the global pandemic.
The country looks to have accepted 1 million lawful permanent residents in fiscal year 2022, near the average over the last two decades. This represents a marked turnaround from the low of 707,000 permanent immigrants accepted in FY 2020, the fewest since FY 2003.
This strong recovery belies predictions that the pandemic had allowed the Trump administration to make lasting, deep cuts to legal immigration. While immigration slumped in FY 2020 and FY 2021, the rebound suggests that neither the Trump administration’s policies nor the pandemic have had enduring effects on the level of legal immigration to the United States. Here is a graph from the report:
World Cup mania is everywhere! And there is an immigration angle. Gijsbert Oonk for Migration Information Source reports that World Cup fans "may have noticed a sizable number of players born outside the country they represent on the field, especially for teams representing nations such as Morocco and Qatar. This is not unusual. Athletes born abroad have represented national teams in every World Cup since its inception in 1930, typically accounting for about one in ten players. At times, these players can raise complicated questions about national belonging, citizenship, and migration."
As reported yesterday, an inadvertent leak of confidential personal information by U.S. immigration officials has caused quite a stir. The Associate Press and the Los Angeles Times offer details on the admission yesterday by of U.S. Immigration and Customs Enforcement that personal information of more than 6,000 asylum seekers was inadvertently posted on its website for about five hours. The information included names, nationalities, detention centers where the people were held and numbers used to identify them, according to Human Rights First, which discovered the leak.
Wednesday, November 30, 2022
For generations, the United States has grappled with high levels of illegal immigration across the U.S.-Mexico border. This Article offers a novel theoretical framework to explain why legal order remains elusive at the border. Drawing inspiration from Lon Fuller’s “interactional view of law,” I argue that immigration law cannot attract compliance unless it is general, public, prospective, clear, consistent, and stable; obedience with its rules is feasible; and the law’s enforcement is congruent with the rules as enacted. The flagrant violation of any one of these principles could frustrate the development of a functional legal order. Remarkably, U.S. immigration law violates all of these principles in its treatment of asylum seekers. As the number of asylum seekers pursuing entry to the United States has risen sharply in recent years, these legality deficits have become increasingly salient. No wonder, then, that even the most aggressive deterrent measures — from mass prosecution to family separation to the construction of steel border walls — have failed to solve the United States’ border crisis. The United States faces an urgent dilemma: it may preserve the Immigration and Nationality Act (“INA”) in its current form, denying protection to too many forced migrants and reserving broad discretion to the Executive Branch, or it may establish a functional legal order at the border. It cannot have both.
If lawmakers were serious about establishing legal order at the border, there are measures they could take to strengthen the system’s structural integrity. They could eliminate the Attorney General’s discretionary authority over asylum. They could clarify ambiguities in the INA to promote greater consistency, stability, and congruence in immigration adjudication and enforcement. They could extend protection to all forced migrants who face death, rape, or other serious harm abroad, including victims of gang violence and gender-based violence. In short, they could enact laws that asylum seekers could rationally obey. To the extent that lawmakers are unwilling to take these steps, it is fair to question their commitment to establishing a functional legal order at the border.
When can the act of applying for asylum in the United States become the basis for a claim for asylum in the United States? How about when the U.S. government publishes the name, case status, and location of the asylum applicant on its public website?
Barron's is reporting that, on Monday, the names, case status, and detention locations of some 6,000 asylum applicants were inadvertently uploaded to the ICE website and remained online for roughly 5 hours. Barron's writes: "The information reportedly included details about people fleeing authoritarian regimes in China, Russia and Iran, as well as those trying to escape violent criminal gangs in lawless parts of the world."
You have your next classroom hypo!
Migrants are using TikTok to share videos of their journeys to the U.S. border, warning people of the obstacles they encountered, providing information about the routes they took, and depicting the challenges they faced once they crossed the border into the United States.
In today’s story, Documented’s Rommel H. Ojeda and Lucía Cholakian Herrera write about Latin American migrants who have used TikTok to share their journeys to the U.S. border.
TikTok artwork by Rommel H. Ojeda for Documented
David Ramírez spent a year and a half planning his journey from Venezuela with five friends and a guide. He had watched YouTube videos of the trip by searching the words "selva" (jungle) and "darien," referring to Panama’s treacherous Darién Gap, but no video prepared him for the exhaustion and hopelessness he felt sitting inside the jungle at that moment.
So he vlogged and posted all of his journey on TikTok — where he amassed more than 3 million views across 115 videos, and nearly 30,000 followers — because he wanted to show other migrants the obstacles he was facing as he made his way to the U.S. border
Ramírez is one of more than 21,000 asylum seekers who entered New York City’s shelter system since spring of this year. Ramirez resided at a men’s shelter in East Williamsburg for six weeks before fleeing the system when he heard that someone died near the shelter. He went to Indianapolis to live with his friend.
"When immigration authorities let me go [at the beginning of September], I was left on the street. I had no way of coming to New York," he said. He told Documented that he had to work carrying containers of ice cream for a bodega for a week in El Paso to afford his $160 plane ticket to New York City. When he got here, he slept on streets and in parks for a week before he got admitted to a shelter.
Because TikTok monitors graphic content, he did not post the videos that included dead people — though he shared them with Documented. Everything he experienced during the month and a half that it took him to make it to the U.S. border propelled him to create TikTok videos explaining how dangerous the journey is, what it is like to find shelter in NYC, and the lengths he took to attend his first court appointment at 26 Federal Plaza.
Read the full report on Documented.
It begins with the story of Yoaibimar Daal who made a more-than-3,000-mile trek from Ecuador, where she was living, through the jungles of Central America to New York City. According to the story, she "become the most virally known Venezuelan immigrant in America.
In September, Daal stood in Times Square and recorded a video on her phone as she proclaimed “La marginal en Nueva York!”
The story explains that "[i]n Venezuelan slang, la marginal roughly translates as `ghetto woman . . . ,'",” The video went "viral on YouTube, but not everyone was celebrating with her. Indeed, many Venezuelans living in the United States mocked her for her less-educated pronunciation."
The story offers some reactions to Venezuelan Americans:
“Now I understand why the United States is closed for Venezuelans,” a man tweeted with a subsequent video of Daal dancing in the subway. A Venezuelan worker at O’Hare International Airport tweeted another video of Daal dancing salsa in Times Square captioned with “The Statue of Liberty left the group.” “Are these [the Venezuelans] the US Embassy gives visas to?” a woman asked. “And they deny it to the Decent Venezuela that just wants to vacation?”
"Daal’s videos (she has posted more than 110 of them) have brought into the open the tensions and class prejudices between some of the 500,000 Venezuelans in the U.S. — many of them well-off and conservative — that had arrived mostly by plane in earlier migration waves and the poorer and undocumented wave (known collectively as the “Venezuelans who crossed the Darien” because of a notoriously perilous spot on the Panama border through which they had to pass) that started crossing into the U.S. in 2021. But the internecine anger between some long-time residents and the new arrivals is complementing the political frustration conservative Venezuelans feel toward the Biden administration . . . ."
The latest report from TRAC Immigration: "Speeding Up the Asylum Process Leads to Mixed Results" provides a wealth of interesting data on asylum adjudications. The bottom line:
"Last year saw a substantial increase in the Immigration Court’s processing of asylum cases. The number of asylum cases decided on their merits rebounded from their prior year’s low, and the number of individuals granted asylum by Immigration Judges reached an all-time high. Grant rates also rose. . . . Total decisions more than doubled from 24,810 in FY 2021, to 51,607 during FY 2022. And the number of individuals granted asylum by Immigration Judges increased from 8,945 to 23,686. This was the largest number of individuals granted asylum in any year in the Immigration Court's history."
One finding will not surprise immigration law professors: "Success rates were also more than two and a half times higher — 49 percent — in represented cases, than in the small number of unrepresented cases . . . . Only 18 percent won asylum when unrepresented." (bold added).
I found the asylum grants by nationality to be of particular interest:
"During FY 2022, the highest grant rates among these 21 countries were applicants from Eritrea where 89 percent were granted asylum, up from 83 percent during FY 2021. Asylum seekers from Russia and Cameroon were tied with the next highest asylum grant rates of 88 percent.
At the bottom end of the list was Brazil where only 16 percent were granted asylum. During FY 2021 the grant rate for Brazilians had been 12 percent." (bold added).
Tuesday, November 29, 2022
Dean Kevin Johnson, our immprof blog leader, has just been named by the AALS as its inaugural recipient of the Michael A. Olivas Award for Outstanding Leadership in Diversity and Mentoring in the Legal Academy.
The Olivas Award is presented by the AALS Sections on Civil Rights, Education Law, Immigration Law, Minority Groups, and Student Services. It is awarded annually to the faculty member who most vividly exemplifies Olivas’s devotion to mentoring junior and aspiring faculty from underrepresented communities and promoting diversity, inclusion, and equity in the legal academy.
There will be an in person ceremony at the 2023 AALS Annual Conference -- Thursday January 5 at 1PM.
Congratulations, Kevin! This honor is so richly deserved.