Wednesday, October 27, 2021
After a two-and-a-half week trial, a federal jury today held that detained migrants at the GEO-run Northwest Detention Center in Tacoma are entitled to the state's minimum wage ($13.69/hr). GEO had been paying migrants $1 a day for tasks like cooking and cleaning.
Interestingly, the case was pursued by the Washington State's Attorney General. A class action suit by affected migrants is expected to follow.
A new exhibition at Austin College from artist/activist Scott Nicol, "Ladders and Walls," consists of 14 ladders migrants have used in attempts to enter the United States, Michael Marks reports for The Texas Standard. "There are people who are trying to survive and we need to see what we, as a nation, can do to help them, not try to militarize the border, not destroy the environment along the border, not do damage to border communities, but think of it rationally and compassionately and address it in that manner," Nicol said of the project.
“Ladders and Walls” is on display at Austin College from October 22 through December 10 in Dennis Gallery of Forster Art Complex. The exhibition of photographs and sculptures related to the South Texas border wall is presented by the Austin College Department of Art and Art History. The gallery is normally open by appointment only by calling 903.813.2283.
Cornell International Law Journal Symposium: Human Mobility and Human Rights in the COVID-19 Pandemic
Human Mobility and Human Rights in the COVID-19 Pandemic
Revisiting the 14 Principles of Protection for Migrants, Refugees, and Other Displaced Persons
Building upon the 14 Principles – which set out how international law should protect migrants, refugees, and other displaced persons during the COVID-19 pandemic and have been endorsed by more than 1,000 scholars worldwide – a group of international law scholars have collaborated to create a series of short essays looking at a set of pressing legal and policy issues relevant to this and future pandemics and the rights of migrants under international law.
T. Alexander Aleinikoff, Ian M. Kysel, & Monette Zard
Kristin Bergtora Sandvik
Concluding Comments: Revisiting the Principles of Protection for Migrants, Refugees and Other Displaced Persons, One Year On
Guy S. Goodwin-Gill
Concluding Comments: (A) Few Promising Avenues for Promoting the Rights of Migrants in the Post-Pandemic
Ian M. Kysel
Immigration Article of the Day: Terrorism and the Inherent Right to Self-Defense in Immigration Law by Faiza Sayed, California Law Review
The Immigration and Nationality Act (INA) deems an individual inadmissible to the United States for having engaged in terrorist activity. Both “engaged in terrorist activity” and “terrorist activity” are terms of art that are broadly defined under the INA to include activity that courts, scholars, and advocates agree stretches the definition of terrorism. An individual found inadmissible on terrorism-related grounds is barred from nearly all forms of immigration relief, including adjustment of status to lawful permanent resident, refugee status, asylum, withholding of removal, and cancellation of removal. These INA provisions, meant to exclude terrorists from accessing immigration relief, have been perversely interpreted to deny relief to individuals who have taken actions in self-defense, although state and federal courts, state constitutions, and scholars alike describe self-defense as a right so fundamental as to be inherent. There is no principled reason to deny noncitizens the right to present a self-defense justification with respect to acts that may otherwise qualify as terrorist activity in the immigration context. In fact, when properly interpreted, the INA as currently written already excludes force used in self-defense from the definition of terrorist activity; the challenge lies in the fact that the current exclusion is too burdensome for adjudicators to apply properly and too narrow to shield all individuals who have taken actions in self-defense from being denied immigration relief. Given this perplexing state of affairs, Congress should adopt reforms to ensure that the government does not deny immigration relief to individuals who have exercised the most basic of rights—that of self-preservation. These reforms can accomplish two desired immigration law goals: excluding terrorists and providing protection to individuals fleeing persecution.
Tuesday, October 26, 2021
The White House recently released a Report on the Impact of Climate Change on Migration. Here are some choice excerpts from the introduction:
From those forced to move to those left behind, U.S. policy can aid in supporting human security by, among other things, building on existing foreign assistance to a reconsideration and development of legal mechanisms to support those who migrate....
The use of U.S. foreign assistance is one lever to respond to climate change related migration....
It is also critical to support people who desire to stay as long and as safely as possible in their home areas through investments in disaster risk reduction (DRR) measures and local adaptation, including capacity building to assist countries with managing environmental risks and land use....
Existing legal instruments to protect displaced individuals are limited in scope and do not readily lend themselves to protect those individuals displaced by the impacts of climate change, especially those that address migration across borders. Given the growing trend in displacement related to climate change, expanding access to protection will be vital. The United States will need to strengthen the application of existing protection frameworks, adjust U.S. protection mechanisms to better accommodate people fleeing the impacts of climate change, and evaluate the need for additional legal protections for those who have no alternative but to migrate....
Most notably, this report recommends the establishment of a standing interagency policy process on Climate Change and Migration to coordinate U.S. Government efforts to mitigate and respond to migration resulting from the impacts of climate change that brings together representatives across the scientific, development, humanitarian, and peace and security elements of the U.S. Government.
Most of the report's recommendations are in the "analytics" vein, that is to say, "let's collect data and think more about this topic."
Among other harms wrought by COVID-19, there's been an uptick in hate toward AAPIs. Some of the most effective advocacy I've seen is the Hollaback bystander intervention trainings. They have now partnered with Asian Americans Advancing Justice| AAJC and Woori Show to produce short videos for children on 5Ds on how to be a "super ally" in response to hate and bullying. The cartoons are designed for ages 3-10 and include AAPI characters.
Facebook -- and its power -- has been in the news. But here is an especially troubling Facebook story for you.
The report includes a jarring trigger warning:
"SENSITIVE CONTENT WARNING
This report reproduces content of a sensitive, offensive, discriminatory, and sexual nature. This
content is included in the report to provide a clear record of social media misconduct by Customs
and Border Protection employees."
The Executive Summary includes the following:
"This staff report presents the findings of an investigation launched in 2019 by the Committee on Oversight and Reform into violent and offensive posts by Customs and Border Protection (CBP) personnel in secret Facebook groups. The most prominent of these groups, a private group for Border Patrol agents called “I’m 10-15,” had more than 9,500 members in July 2019. The Committee’s investigation followed alarming media reports of CBP employees threatening harm to migrants and elected officials on the `I’m 10-15' page.
The Committee requested documents from CBP in July 2019 to determine whether agents who posted this content were allowed to continue working with migrants and to assess whether appropriate disciplinary action was taken. After the Trump Administration obstructed this inquiry for more than a year, CBP finally began producing complete unredacted documents in
February 2021, after President Trump left office.
Documents obtained by the Committee show that although CBP was aware of misconduct on `I’m 10-15' since August 2016, the agency took minimal action to strengthen social media training or guidance after the media began reporting on agents’ misconduct and the Committee launched its investigation in 2019.
The Committee found that CBP conducted 135 investigations into personnel affiliated with `I’m 10-15' and similar secret Facebook groups. The agency determined that 60 CBP agents engaged in misconduct and were subject to discipline. However, the discipline imposed on most of those agents was significantly reduced from the recommendation made by CBP’s
Discipline Review Board. Eighteen agents whom the Board recommended removing from their positions due to serious misconduct had their discipline reduced to suspensions. One proposed removal was reduced to a letter of reprimand, and another was reduced to an `oral admonishment.' Most of these agents were then allowed to resume working with migrants and children."
Here are some incidents documented in the report:
"• A Border Patrol agent who posted a sexually explicit doctored image and derogatory comments about a Member of Congress had his discipline reduced from removal to a 60-day suspension and was awarded back pay.
• A Border Patrol supervisor who improperly posted an internal CBP video of a migrant falling off a cliff to their death, as well as an explicit and offensive comment about a Member of Congress, had their discipline reduced from removal to a 30-day suspension.
• A Border Patrol agent with a history of multiple infractions was allowed to retire with disability benefits rather than face removal or any other discipline after posting a photograph of a drowned father and child and referring derisively to them as `floaters.'" (bold added).
Over the last few months, Congress has seen lots of action (or inaction?) on immigration. The nation learned that the Senate had a parliamentarian who could make rulings on what could be included in a budget reconciliation bill and who shot down a couple of proposals that would have regularized the immigration status of undocumented immigrants,
It is a big week for the Biden presidency. There continue to be rumblings, including in this Washington Post article, that there may be some immigration provisions in the President's social spending bill, which is one of the Biden administrat5ion's critical priorities.. As Laura L:tvan for Bloomberg reports,
"Senate Democrats have abandoned plans to achieve a pathway to citizenship for millions of undocumented immigrants as part of President Joe Biden’s economic agenda, and instead are pursuing a proposal that would provide temporary deportation protections.
The measure would provide temporary immigration parole status to millions of undocumented immigrants, which would allow them to stay lawfully in the U.S. and to apply for work permits, said Senator Dick Durbin of Illinois, the No. 2 Democratic leader in that chamber."
President Biden's Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic
Official White House Photo
In this October 25 proclamation, President Biden announced the resumption of global travel:
"I, JOSEPH R. BIDEN JR., President of the United States, by the authority vested in me by the Constitution and the laws of the United States of America, including sections 1182(f) and 1185(a) of title 8, United States Code, and section 301 of title 3, United States Code, hereby find that it is in the interests of the United States to advance the resumption of international travel to the United States, provided necessary health and safety protocols are in place to protect against the further introduction, transmission, and spread of COVID-19 into and throughout the United States. I further find that vaccination requirements are essential to advance the safe resumption of international travel to the United States and that the unrestricted entry of persons described in section 2 of this proclamation would, except as provided for in section 3(a) of this proclamation, be detrimental to the interests of the United States, and that their entry should be subject to certain restrictions, limitations, and exceptions."
Click the link above for further information. As Reuters reports, the proclamation "impos[es] new vaccine requirements for most foreign national air travelers and lifting severe travel restrictions on China, India and much of Europe effective Nov. 8, . . . ."
Section 6 of the Proclamation provides that the proclamation "is effective at 12:01 a.m. eastern standard time on November 8, 2021. This proclamation does not apply to persons aboard a flight scheduled to arrive in the United States that departed prior to 12:01 a.m. eastern standard time on November 8, 2021." (bold added).
Immigration Article of the Day: Non-State Actors 'Under Color of Law:' Closing a Gap in Protection Under the Convention Against Torture, Anna Welch & Sangyeob Kim, Harvard Human Rights Journal
The prohibition against torture is one of the most universally accepted principles of international law. Yet, the world is experiencing a global restructuring that poses a serious threat to international efforts to prevent and protect against torture. The rise of powerful transnational non-State actors such as gangs, drug cartels, militias, and terrorist organizations is challenging States’ authority to control and govern their territory. Many of these non-State actors commit torture with alarming impunity. This global power restructuring is testing the ability of U.S. laws to protect those fleeing torture, especially in light of the fact that State actors (as opposed to private or non-State actors) are the primary subject of most of our international and domestic torture jurisprudence.
In the U.S., those seeking protection against deportation under the Convention Against Torture (the “CAT”) must establish a likelihood of torture at the instigation of or by consent or acquiescence of a public official acting in an official capacity or other person acting in an official capacity. For example, if an individual faces torture by a police officer or other government official for non-lawful purposes, this person must not be returned to that particular country. CAT protection is still warranted even if a private actor (such as a gang member) will likely torture the individual as long as the torture is done with the actual knowledge, consent or acquiescence of a state actor, such as a police officer.
However, what is meant by “other person acting in an official capacity” such that torturous acts by non-State actors fall under Torture Convention protection remains unclear under U.S. CAT jurisprudence. In other words, to what extent might actions by non-State actors become “State-like” such that the CAT should apply. What if private actors are de facto controlling certain areas of a country untouchable by State actors? Or, what if non-State actors’ authority and presence are so significant and intertwined with State authority such that torture is occurring with impunity? Indeed, for the latter scenario, the applicant may establish CAT eligibility by showing a State actor’s acquiescence or consent. However, such cases are difficult to prove if the State excuses its inaction on its inability to protect victims from harm perpetrated by private actors. This is particularly true under current U.S. jurisprudence on government acquiescence, in which some federal courts have found that a mere inability to protect victims is not enough to meet acquiescence to the torture.
This article identifies a major chasm in U.S. CAT jurisprudence that allows individuals to be deported back to countries where they face likely torture. This article argues that resolving failures in U.S. CAT acquiescence jurisprudence addresses part of the problem as it relates to torture by private actors. However, this is only half of the bridge across the chasm. The other half requires a look at when non-State actors are acting State-like such that they should fall within the separate CAT provision of “other person acting in an official capacity.” While many aspects of the CAT has been litigated, clarified, and developed through case law since the U.S. ratified the CAT, the question of whether and when a non-State actor can be deemed an “other person acting in an official capacity” under the CAT within the United States jurisprudence lacks scholarship or case law. We make the novel argument that courts and agencies should apply factors employed in civil rights claims (also known as 1983 claims) to assess whether a non-State actor can act in an official capacity or under color of law. Doing so will help fill a critical gap in U.S. CAT protections, and thereby prevent the refoulement of individuals facing likely torture.
Monday, October 25, 2021
MPI Report--From Jailers to Case Managers: Redesigning the U.S. Immigration Detention System to Be Effective and Fair
From Jailers to Case Managers: Redesigning the U.S. Immigration Detention System to Be Effective and Fair is a recent MPI report authored by Randy Capps and Doris Meissner.
The report begins by noting that the "sprawling immigration detention system" in the United States "has long been controversial for its prisonlike conditions and health risks." The authors note that this detention also comes with a hefty price tag: $2.8 billion annually.
The authors envision something altogether different:
replacing the longstanding system of detention for most immigrant adults apprehended in the U.S. interior and at least initially for many of those who arrive at the border without authorization and seek asylum, with a system that makes release with supervision and case management (i.e., monitoring, check-ins, legal advice, and other support services) the prevailing method for exercising immigration custody whenever possible. A redesigned system would also need to attend to the situation of apprehended families with children, as by court order they cannot be detained for lengthy periods. It does not address the custody system for unaccompanied children, whose cases are governed by separate statutes and requirements managed by the Office of Refugee Resettlement (ORR) in the U.S. Department of Health and Human Services.
Here are their key points:
- Detain individuals who pose public safety risks.
- Use the least restrictive feasible custody options.
- Provide legal counsel, case management, and social services.
- Design nondetention custody options to ensure that immigrants appear in immigration court and comply with the removal process.
In the end, they write: "responding to current and likely future immigration realities both at U.S. borders and in the interior calls for rethinking the role and nature of the immigration custody system, steering it away from a punitive, detention-centered approach and toward more proportionate and cost-effective policies that still ensure compliance with immigration court and removal proceedings."
On October 29, 2021, the Administrative Law Review is hosting a virtual symposium on the role of administrative law in detention and imprisonment. It is organized by AU Professor Jayesh Rathod and features many immigrationprof blog community members such as Jill Family and David Rubenstein. More information here. Register here.
MHC (h/t Jill Family)
Michele R. Pistone, Professor of Law at Villanova, shares that registration is open for an online certificate training program to teach immigration law and practice. The Villanova Interdisciplinary Immigration Studies Training for Advocates (VIISTA) program trains students to become immigrant advocates ready to serve migrants and refugees without requiring a JD. So far VISSTA graduates have been serving refugees and Afghan asylum seekers, among other types of work.
The program was developed to increase representation for immigrants, who are not guaranteed rights to court appointed lawyers in immigration court, by educating legal advocates (akin to nurse practitioners in health care). Graduates will be eligible, under existing regulations, to apply to become Department of Justice “accredited representatives,” authorized to provide low-cost legal representation to migrant and refugee families when they work for DOJ "recognized organizations."
- Learn from renowned faculty at the forefront of immigration and advocacy
- Develop practical skills in immigrant advocacy
- Explore immigration law and practice
- Gain insights into why people migrate
- Transform the legal services experience for migrants and refugees
Founder Pistone reports that some VIISTA students tend to fall in 3 categories: PhD students or college professors who want to learn about immigration law to supplement their own teaching and or research, retiring lawyers who want to spend their retirement years volunteering with immigrant serving organizations, and staff members who work with immigrant communities or in service-learning programs on campus.
Here is a link to the website for more information and registration, immigrantadvocate.villanova.edu. Here is an article about VIISTA from the Chronicle of Higher Education. And here is an article about the critical results of representation from Vera Institute.
Our Immigrant of the Day is Karine Jean-Pierre, who made history in May by becoming the first openly gay woman – and only the second Black woman – to lead a White House press briefing.
FRANCE24 interviewed Deputy Press Secretary Karine Jean-Pierre (44), who often briefs reporters aboard Air Force One and occasionally takes the podium in the briefing room as part of the all-female senior communications team at the White House.
Jean-Pierre was born in Fort-de-France, Martinique, where her Haitian-born parents landed after fleeing the dictatorship of Jean-Claude Duvalier. She spent several years in France as a child before her family settled in the United States, where she was raised in Queens, New York. The daughter of a cab driver and a home healthcare aide, Jean-Pierre has worked on many Democratic campaigns and in grassroots activism.
In her memoir Moving Forward: A Story of Hope, Hard Work, and the Promise of America (2019), she discusses her struggles in early adulthood: She is a survivor of sexual abuse, has suffered depression and attempted suicide. She also chronicles her path from local New York politics to working in the Obama White House.
"Biden Asylum Rule Spurs Criticism, Even From Supporters" by Mike LaSusa considers responses to the Biden administration's proposed asylum rule. The a proposed regulation, issued Aug. 18 by the U.S. Department of Homeland Security and the U.S. Department of Justice, would empower asylum officers to decide asylum applications and other requests for protection from migrants placed in expedited removal proceedings. That would be a change from the current system, which funnels such claims to overwhelmed immigration courts.
According to the report, "[t]he 60-day window for public comment on the proposed regulation saw more than 5,000 submissions, many opposing the rule in its entirety and others offering suggestions for refining it." The article breaks down some of the issues identified in the comments. Here are some of the comments:
- Republican Members of Congress
- United Nations High Commissioner for Refugees
- Federation for American Immigration Reform
- National Association of Immigration Judges
- Legal Aid Society
- American Immigration Lawyers Association
- American Bar Association
Immigration Article of the Day: Refugee Responsibility Sharing or Responsibility Dumping?" by Katerina Linos & Elena Chachko, California Law Review
A silver lining of recent migration crises is increased reliance on responsibility sharing arrangements in international actor responses. This new experience allows for evidence-based analysis of such arrangements. We distinguish between progressive arrangements—ones that shift responsibilities to more affluent, institutionally competent, and safer countries—and regressive arrangements that do the opposite and in fact constitute responsibility dumping.
Focusing on examples from the United Nations, United States and the European Union, we classify different responsibility sharing arrangements as progressive or regressive based on four parameters: hosting commitments, monetary or equivalent contributions, multilateralism and legally binding instruments. The analysis suggests that first safe country arrangements are presumptively regressive, while arrangements that include hosting or material commitments are presumptively progressive. The EU model is a particularly progressive model that ought to spread. We also highlight the importance of assessing refugee policy solutions with a view to broader, systemic implications for host countries, and not just against an individual-focused legal threshold.
Sunday, October 24, 2021
Want some basic facts on immigrants in teh United States? Check this fact sheet out. Here are some basics:
"One in seven U.S. residents is an immigrant, while one in eight residents is a native-born U.S. citizen with at least one immigrant parent.
- In 2019, 44.9 million immigrants (foreign-born individuals) comprised 14 percent of the national population.
- The United States was home to 22.0 million women, 20.4 million men, and 2.5 million children who were immigrants.
- The top countries of origin for immigrants were Mexico (24 percent of immigrants), India (6 percent), China (5 percent), the Philippines (4.5 percent), and El Salvador (3 percent).
- In 2019, 38.3 million people in the United States (12 percent of the country’s population) were native-born Americans who had at least one immigrant parent."
From the American Immigration Council:
As part of the Belonging Begins With Us campaign—which aims to foster a nation where everyone feels that they belong—a group of diverse influencers are sharing their stories of belonging. Here’s what a baker, photographer, mom, and movie buff all have in common.
Advocates say US immigration is rooted in anti-Blackness. Here's how policies puts Black migrants at risk
It is no real surprise that ant-Black sentiment in U.S. social life influences the treatment of Haitian migrants, which has been in the news. Presidents George Bush (the first one) and Bill Clinton employed the extraordinary interdiction policy directed at the Haitians. The Biden administration made the headlines with Haitians chased by horseback on the U.S./Mexico border and then deported in masses.
DeArbea Walker for The Insider looks at how the harsh treatment of Haitian migrants fits into anti-Blackness in U.S. history. The article quotes Professor Alina Das: "From the beginning, race had everything to do with who belonged in the United States and was a significant driver of these concepts of citizenship and immigration."