Tuesday, September 29, 2020
Suzanne Monyak at Law360 offers this prediction of what immigrationprofs should expect if the Seventh Circuit judge is elevated to the Supreme Court: "U.S. Supreme Court nominee Amy Coney Barrett's tendency to defer to the executive branch's authority could pave the way for the Trump administration to prevail against challenges to its immigration policies."
Her reasoning is that, while Judge Barrett's record on immigration is mixed (as reported in prior ImmigrationProf blog posts), she has demonstrated "a clear preference for interpreting laws based on their strict textual meaning. And when the text is unclear, she tends to rely on the federal government's own interpretation." This textualist approach could result in narrow adherence to the federal immigration statute, an approach that is often relied on to support restrictionist immigration policies.
"In the immigration space, an expansive view of executive power can translate, frankly, into a blank check to the president about who can immigrate to the U.S.," said Bradley Jenkins, federal litigation attorney at the Catholic Legal Immigration Network Inc.
The Law360 in-depth analysis draws on perspectives from Immprof Blog co-editor Dean Kevin Johnson, Professor Stephen Yale-Loehr, and Professor Jennifer Koh and delves into Judge Barrett's decisions in the public charge case and the consular nonreviewability case. It is one of the most substantive analyses I've seen in this genre since Barrett's nomination.
Today, two systems exist for addressing the humanitarian claims of persons fleeing persecution. One system consists of refugees living in host countries, often in large camps, who ideally are then resettled in other countries or repatriated when it is safe to do so. The other system involves refugees arriving in a country and seeking asylum—a right with ancient religious roots. The first “encampment model” is fundamentally broken, as most refugees are housed in the developing or least developed world in terrible conditions for extended periods of time, with little or no realistic hope of resettlement elsewhere or repatriation. The developed world, which takes in only a tiny percentage of refugees worldwide, has tacitly acquiesced to this humanitarian catastrophe occurring outside its borders. Yet it has been forced in recent years to confront the worldwide refugee crisis as the number of persons traveling to wealthy countries to seek asylum has increased. Rather than respond with policies that address the roots of refugee flows, many developed nations have pursued a variety of strategies to interdict and otherwise distance asylum seekers.
Refugee distancing is a way to import the encampment model into the asylum systems of the developed world. This blurring of the lines between encampment and asylum is strikingly clear, for example, in the tent cities that have cropped up along the U.S.–Mexico border under the Trump Administration’s “Migrant Protection Protocol” (MPP), which requires asylum seekers to wait in Mexico while their claims are adjudicated. The overreaching impact of such policies is to dismantle the normative force of asylum by creating physical, psychological, and legal distance between the public and the asylum seekers who make a moral claim on them.
This Article assesses refugee distancing policies—offering a history and analysis of their causes, as well as a commentary on their future. It contends that current policies may have unintended consequences, as did the U.S. government’s efforts to thwart asylum for Haitian and Central American claimants in the 1980s–1990s. These efforts led to legal precedent allowing for the extraterritorial reach of the Constitution and to a political movement that created new immigration benefits for many asylum applicants. The Article sketches out the legal challenges to one prominent refugee distancing policy, the MPP, and describes how a transnational legal process might contest refugee distancing over the long term.
Monday, September 28, 2020
Immigration Article of the Day: Sites of (Mis)Translation: The Credible Fear Process in United States Immigration Detention by Kif Augustine-Adams and D. Carolina Núñez
Sites of (Mis)Translation: The Credible Fear Process in United States Immigration Detention by Kif Augustine-Adams and D. Carolina Núñez, 35 Georgetown Immigration Law Review (2021 Forthcoming)
The credible fear interview presents a high-stakes encounter in the circumscribed legal process afforded to individuals in immigration detention as they seek to claim asylum in the United States. Limited research, however, exists on the sociolegal consequences of translation and interpretation in the asylum process generally and the credible fear context specifically. Our paper advances that scholarship in the context of the credible fear process for detained individuals by focusing on two sites of potential (mis)translation and (mis)interpretation: 1) explaining “credible fear” and 2) transposing individual facts and trauma into the legal categories that United States and international asylum law recognize as forming the basis for an asylum.
Proposed Regulation on the Change of Admission Period of F, J, and I Nonimmigrants from Duration of Status: What You Need to Know
As previously reported, the Trump administration is tightening up on student visas. Please read the FAQ prepared by the Penn State Center for Immigrants' Rights Clinic and Presidents’ Alliance on Higher Education and Immigration on the proposed rule for international students: states, among other things, that "[o]verall, if finalized without change, the rule would constitute the largest changes to regulation of international students and scholars in 20 years."
Over the weekend, The Daily podcast looked at climate migration. Here is the description of the episode:
"In August, Abrahm Lustgarten, who reports on climate, watched fires burn just 12 miles from his home in Marin County, Calif.
For two years, he had been studying the impact of the changing climate on global migration and recently turned some of his attention to the domestic situation.
Suddenly, with fires raging so close to home, he had to ask himself the question he had been asking other people: Was it time to move?
This week on The Sunday Read, Abrahm explores a nation on the cusp of transformation."
Sunday, September 27, 2020
I would add Sessions v. Morales-Santana to the discussion. In that case, Justice Ginsburg, writing for the Court, struck down gender distinctions in the derivative citizenship laws.
Al Jazeera reports that Swiss voters will decide whether to annul a pact with the European Union on the free movement of people. The right-wing Swiss People’s Party (SVP) – the largest in the Swiss parliament – has led the support for the referendum, known as the Limitation Initiative, to regain control over immigration, echoing some of the arguments pro-Brexit politicians used in the run-up to Britain’s exit from the EU.
The first sentence of the Fourteenth Amendment provides: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This language raises two substantial questions of scope. First, what does it mean to be born “in” the United States? Does that include birth in U.S. overseas possessions, territories, bases, or places under temporary U.S. occupation? Second, what does it mean to be born “subject to the jurisdiction” of the United States? Does that include persons born in the United States to parents who are only temporary visitors or parents not lawfully present in the United States?
The original meaning of the citizenship clause’s text indicates a broad scope for constitutional birthright citizenship as to both places and persons. At the time of enactment, places subject to the permanent U.S. sovereign authority were considered “in” the United States without regard to whether they were territorially contiguous or culturally integrated into the U.S. political system. In mid-nineteenth-century terminology persons born within U.S. territory were “subject to [its] jurisdiction” unless excluded legally by international rules of immunity or practically by military or political realities.
But these originalist solutions in turn raise a challenge for originalism as a theory of modern constitutional interpretation. There is little evidence that the Amendment’s enactors considered or could have foreseen the modern implications of either question. The United States had no material overseas possessions when the Amendment was drafted and ratified. Restrictive federal immigration laws did not materially take hold in the United States until the late nineteenth century. Application of the citizenship clause thus requires originalism to confront the role (or lack thereof) of intent in modern originalist theory. Modern originalists generally claim to be bound by the original meaning of the text rather than the original intent of the enactors. But in the case of the citizenship clause, the text’s resolution of key questions of its scope appears to be largely accidental. The citizenship clause presses originalism to explain why original meaning should be binding in modern law when it does not reflect the enactors’ policy choices. As the Article will discuss, explanations are available, but they may take originalism away from some of its apparent common ground.
Saturday, September 26, 2020
Looking for a new song to play in your immigration class? Consider Rage Against The Machine's Without A Face (1996):
Here's what the band's lead singer Zack De La Rocha said about this song: "It seems as soon as the wall of Germany fell, the US government was busy building one between the border between the US and Mexico. Since 1986 as result of a lot of the hate talk and hysteria that the the government of the United States has been speaking, 1500 bodies have been found on the border. We wrote this song in response to it."
What does it mean to be American? In this starkly illuminating and impassioned book, Pulitzer Prize–finalist Laila Lalami recounts her unlikely journey from Moroccan immigrant to U.S. citizen, using it as a starting point for her exploration of the rights, liberties, and protections that are traditionally associated with American citizenship. Tapping into history, politics, and literature, she elucidates how accidents of birth—such as national origin, race, and gender—that once determined the boundaries of Americanness still their shadows today.
Lalami poignantly illustrates how white supremacy survives through adaptation and legislation, with the result that a caste system is maintained that keeps the modern equivalent of white male landowners at the top of the social hierarchy. Conditional citizens, she argues, are all the people with whom America embraces with one arm and pushes away with the other.
Brilliantly argued and deeply personal, Conditional Citizens weaves together Lalami’s own experiences with explorations of the place of nonwhites in the broader American culture.
Friday, September 25, 2020
The NYT today reports on an overseas citizenship controversy: Did Italy rig a citizenship test to facilitate the transition of Uruguayan-born and just-left-Barcelona soccer striker star Luis Alberto Suárez Díaz (El Pistolero) to the Italian club Juventus?
Apparently, it usually takes a while to get Italian citizenship. And the nation's language test is no joke. Yet Díaz sailed through the process.
Why? Well, maybe because Juventus had tapped out its allowed number of non-European Union players. So Díaz needed to become an EU citizen.
Others waiting on Italian citizenship are pissed.
Personally, I don't find this story particularly shocking. I mean, usually we hear about citizenship-swapping around the Olympics. But this is a natural extension of that history.
American University Washington College of Law will be hosting a virtual event on October 6 from 5pm-6:30pm ET entitled Citizenship and Suffrage: Race, Citizenship, and Women’s Right to Vote on the Centennial of the 19th Amendment. The event discusses how citizenship acquisition and citizenship stripping rules barred women from voting even after the 19th Amendment’s ratification. It will also discuss citizenship-related barriers to the vote today.
To register, please visit: https://www.wcl.american.edu/secle/registration
Immigration Reform.com reports that, since her confirmation in 2017,
"Barrett has two recent opinions regarding the issue of immigration. She authored the dissenting opinion in the case Cook County v. Wolf in June 2020. The 7th Circuit’s decision temporarily barred the Trump Administration from imposing new rules that would exclude potential immigrants from green cards if they were likely to require public assistance. Barrett’s dissenting opinion supported the Trump Administration’s action and argued that Cook County, Illinois’ definition of public charge was too narrow and was not supported by law. The 2nd Circuit Court subsequently lifted that ban in September 2020.
Before that, Barrett wrote the majority opinion in the 2019 case Yafai v. Pompeo. Barrett ruled that the wife of a U.S. citizen could not challenge the denial of her visa application by a consular officer, who suspected the wife of child smuggling."
UPDATE (Sept. 27): Yesterday afternoon, President Trump nominated Judge Barrett for the high Court. Nicole Narea for Vox ("Amy Coney Barrett, Trump’s Supreme Court nominee, has a years-long record of ruling against immigrants") also looks at her immigration record.
Immigration Article of the Day: Sowing the Seeds of Chinese Exclusion as the Reconstruction Congress Debates Civil Rights Inclusion by Lea S. Vandervelde and Gabriel Jackson Chin
Sowing the Seeds of Chinese Exclusion as the Reconstruction Congress Debates Civil Rights Inclusion by Lea S. Vandervelde and Gabriel Jackson Chin, Tsinghua China Law Review, Vol. 12:185
During Reconstruction, Congress amended the Constitution to fundamentally reorder the legal and social status of African Americans. Congress faced the challenge of determining how Chinese people would fit in to the emerging constitutional structure. This article draws on a method of digitizing the Congressional Globe to more broadly explore the arguments about Chinese rights and privileges during Reconstruction. Unlike African-Americans, Chinese were part of an international system of trade and diplomacy; treatment of other people of color was understood as a purely domestic question. In addition, while a core feature of Reconstruction was ending the enslavement of African-Americans and overruling Dred Scott by making Africans Americans born in the U.S. citizens and granting them eligibility for naturalization, for Chinese, Congress chose to leave in place racial restrictions on naturalization, which had existed since 1790. This rendered them perpetual foreigners in America. With regard to labor rights, by abolishing slavery, Congress intended to raise up the freedmen, giving African Americans a chance to work on equal terms with other citizens. In the main, Congress continued to treat the Chinese people as constitutive of the so-called “Chinese question,” a nominalization that ascribed to them features of caste, from which there was little possibility of upward mobility. Congress recognized that some Chinese workers in the U.S. who were building railroads or working in mines might be subject to labor exploitation from bosses and from jobbers, sometimes white and sometimes Chinese. However, rather than intervene to liberate Chinese laborers through laws that would free them from involuntary servitude, and give them fair terms on which to compete, Congress eventually moved in another direction: excluding the Chinese altogether in 1882.
Thursday, September 24, 2020
DHS is proposing to impose fixed end dates on student visas, rather than allowing them to be valid for the “duration of status”. They cite national security risks. The Notice of Proposed Rulemaking says comments are due to regulations.gov 30 days from publication date in the Federal Register (likely tomorrow or September 25). The proposed rule is published on the DHS website as well.
Here is the language of the proposed rule; it runs 250 pages and provides the DHS justification for the change: "the Department accordingly is concerned about the integrity of the programs and a potential for increased risk to national security. To address these issues, DHS proposes to amend its regulations by changing the admission period of F, J, and I aliens from duration of status to a fixed time period... This change would provide the Department with additional protections and mechanisms to exercise the oversight necessary to vigorously enforce our nation’s immigration laws, protect the integrity of these nonimmigrant programs, and promptly detect national security concerns."
" The NAFSA: International Association of International Educators opposes the rule, as explained in their NAFSA commentary. They say "As universities and colleges across the country work to welcome highly valued, hardworking international students and scholars to our campuses and communities, their efforts are being undermined by policies and regulations that further close our doors and pull up America’s welcome mat. Students from around the globe come here to study, research and grow in our world-class institutions because they believe that America offers freedom and the highest-quality education—and our nation has thrived because of our strength in diversity, not in spite of it. International students and scholars contributed more than $36.9 billion last year and more than 450,000 jobs to our economy. If we continue to undermine their ability to study and learn here, we devalue their contributions, and our international competitors will continue to benefit from short-sighted policies."
There have been prior proposals to replace "duration of status" with fixed years, as described here. If enacted, this proposed rule would be the latest in a series of policies restricting international students and temporary visas during the Trump Administration, including the rescinded rule to ban international students studying fully remotely and proposals to eliminate or curtail OPT (permitting one-year of work experience at the conclusion of an F-visa).
Please join us through webinar for the 2020 Ainsworth lecture at Loyola University New Orleans College of Law featuring Hiroshi Motomura on "The Immigration System: How Did We Get Here and Is There a Path Forward?" on Friday, October 16 at noon central time. Register here.
2020 sure is a bleak year. It is time for some good sports news. Ryan O'Hallaran for the Denver Post tells about an immigrant from Nigeria who has made it to the National Football League.
Born in Nigeria, Jeremiah Attaochu moved to the Washington, D.C., area with his family in 2001. The story is simple: "Immigrant. High school star. All-time sack leader at Georgia Tech. Second-round draft pick in the NFL. And, after starts and stops in his pro career, a prominent role on the [Denver] Broncos’ defense. Signed last year . . . , Attaochu, 27, is [now] a starter . . . . In last week’s opener against Tennessee, Attaochu had four tackles, including a sack."
Wednesday, September 23, 2020
Trump administration expedites appeals to Supreme Court for exclusion of undocumented immigrants from Census 2020
NYU and LDF: Immigration, Equal Protection, and the Promise of Racial Justice The Legacy of Jean v. Nelson
Immigration, Equal Protection, and the Promise of Racial Justice has been rescheduled as a virtual convening to be held online Thursday October 22, and Friday October 23, 2020. This two-day virtual conference will be accessible through Zoom and details will be circulated to registered participants in the days prior to the conference.
The year 2020 marks the 35th anniversary of Justice Thurgood Marshall's groundbreaking dissent in Jean v. Nelson, wherein Justice Marshall called for equal protection to apply to Haitian immigrants, and to prohibit the government from discriminating on the basis of race or national origin.
The NAACP Legal Defense and Educational Fund, Inc. and the Center for Human Rights and Global Justice at NYU School of Law are pleased to present a virtual conference exploring the intersection of immigration and racial justice.
Tuesday, September 22, 2020
Kao Saelee, who came to the United States as a refugee, fought California wildfires while serving a prison sentence in California. An article from the Guardian features his story and his transfer last month to an ICE prison in Louisiana after completing his sentence. Anoop Prasad, an attorney with the Asian Law Caucus (ALC), is quoted explaining: “His story is similar to that of a lot of south-east Asian refugee youth who got resettled in neighborhoods in California that had really high rates of violence, poverty and incarceration.”