Monday, December 6, 2021
Today, the Supreme Court heard oral argument in Patel v. Garland. Here is a copy of the transcript. Bloomberg Law, for one, sees oral argument as indicating that SCOTUS is "likely" to side with Patel over Garland. A ruling in favor of Patel would mean that federal courts would have jurisdiction to review non-discretionary determinations by immigration courts about eligibility for adjustment of status under 8 U.S.C. § 1252(a)(2)(B)(i).
Official White House Photo
Immigrant advocates have not been entirely pleased with the Biden administration's immigration moves. For example, the return of the Remain in Mexico policy has come under fire. Due to court order, the policy returned on December 6.
Nolan Rappaport on The Hill discusses the return in the Remain in Mexico policy and the policy debates over immigration.
"In 1977, a Republican senator from Kansas joined the newly formed Congressional Hispanic Caucus as an `honorary member.' In the 1980s, he voted for amnesty for undocumented immigrants. In the 1990s, he ran for president while embracing anti-immigrant measures.
Such was the complicated legacy of Bob Dole — who died Sunday at 98 — with the Latino community. During Dole’s political heyday, the Latino population tripled, and immigration emerged as a hot-button issue among conservatives. While his national campaigns failed to draw strong Latino support, Dole’s passing is an opportunity to reflect on the politics of a Republican from a different era."
"Human lives, real people, are at stake!" Francis said.
The pope thanked the residents of Lesbos for welcoming refugees and walked in the camp with storage containers housing refugees.
"Please let us stop this shipwreck of civilization!" Francis said.
He added that "we are living in the era of barbed wire and walls" but the COVID-19 pandemic has shown that "we are all in the same boat."
Americans have heard a lot about the challenges that many employers are experiencing with hiring and retaining workers. Rebecca Rainey for Politico lays some of the blame on the U.S. immigration system. "Processing delays for millions of foreign workers are aggravating the nation’s labor shortage, lawmakers and business groups say, putting the dysfunction of the immigration system on display at a pivotal time for the economic recovery."
The Center for American Progress has released the "The Demographic and Economic Impacts of DACA Recipients: Fall 2021Edition." It presents the most up-to-date information about the recipients of Deferred Action for Childhood Arrivals (DACA).
The DACA saga continues. The Supreme Court halted the Trump's administration's attempted rescission of DACA but new applications still are not being accepted. The Biden administration has proposed a rule that would administratively codify DACA.
Hat tip to Nolan Rappaport.
Sunday, December 5, 2021
Emtithal Mahmoud was born in Darfur, Sudan, and ultimately resettled in the United States. She's a recognized slam poet, winner of the Individual World Poetry Slam Championship (2015) and Women of the World Poetry Slam Co-champion (2016).
Watch her deliver her moving poem 2AM:
Mahmoud has also given a TED talk about the genocide in Darfur from which her family escaped.
Saturday, December 4, 2021
Yesterday, immigration attorney Greg Siskand opined that most Afghan humanitarian parole cases would be denied because of a lack of evidence indicating that the applicant/s will be specifically targeted by the country's new government. The program, Siskand states, is "a sham."
URGENT for journalist followers - @uscis is now expected to DENY most Afghan humanitarian parole cases - more than 30K pending - because they are applying standards most applications won't meet. Here's why - 1x— Greg Siskind (@gsiskind) December 3, 2021
Law360 has picked up Siskand's story. AILA is also on this issue and has released a Practice Pointer on USCIS Processing of Humanitarian Parole Applications for Afghan Nationals (AILA Doc. No. 21120304).
The National Immigration Law Center is calling for applications for a fellowship. See National Immigration Law Center - Law Fellowship (lever.co)
Applications will be accepted on a rolling-basis through Friday, January 7th, 2022 at 9pm Pacific.
Shoba Sivaprasad Wadhia: "Justices will decide scope of judicial review over certain immigration decisions"
Patel challenged the BIA denial in the U.S. Court of Appeals for the 11th Circuit. The circuit court concluded that subparagraph (B)(i) bars a court from reviewing Patel’s case. . . . Patel sought review before the Supreme Court.
At the heart of this case is whether a federal court can review questions tied to Patel’s statutory eligibility for adjustment of status. Specifically, the Supreme Court will consider `[w]hether 8 U.S.C. § 1252(a)(2)(B)(i) preserves the jurisdiction of federal courts to review a non-discretionary determination that a noncitizen is ineligible for certain types of discretionary relief.'”
Stay tuned for reports on the oral argument next week.
UPDATE (Dec. 6, 2:15 p.m. PST): Here is the transcript to the argument. The Justices focused on the technicalities of the statutory language in a sprawling argument that only an immigration law professor could love. Stay tuned for a link to Professor Wadhia's recap of the argument when it is posted.
Friday, December 3, 2021
Oh, man. I'm a sucker for a good graphic novel. A graphic memoir? So cool. Check this one out: I Was Their American Dream by Malaka Gharib. Here's the publisher's pitch:
I Was Their American Dream is at once a coming-of-age story and a reminder of the thousands of immigrants who come to America in search for a better life for themselves and their children. The daughter of parents with unfulfilled dreams themselves, Malaka navigated her childhood chasing her parents' ideals, learning to code-switch between her family's Filipino and Egyptian customs, adapting to white culture to fit in, crushing on skater boys, and trying to understand the tension between holding onto cultural values and trying to be an all-American kid.
Malaka Gharib's triumphant graphic memoir brings to life her teenage antics and illuminates earnest questions about identity and culture, while providing thoughtful insight into the lives of modern immigrants and the generation of millennial children they raised. Malaka's story is a heartfelt tribute to the American immigrants who have invested their future in the promise of the American dream.
On Amazon, the "Look Inside" feature will give you a glimpse at some of the novel's fabulous images and compelling story line.
Immigrants Rising has as handy guide for undocument6ed immigrants traveling in the United States. The introductions acknowledges that "[t]raveling in the U.S. can be a complicated and stressful process for anyone—even more so if you’re undocumented! But it doesn’t have to be complicated. If you’re thinking of traveling as an undocumented person (with or without DACA) and are curious about how to travel safely, read on. Safe travels, undocu-travelers!"
Thursday, December 2, 2021
From the Washington Post:
Honduras is now the biggest source of migration to the United States — a fact that critics blame partly on the Juan Orlando Hernández administration’s poor governance and an issue newly-elected president Xiomara Castro will now inherit. While the Biden administration is crafting policy aimed at deterring migration, the Honduran economy depends on money sent home by its citizens working in the United States. Remittances make up roughly 20 percent of the country’s GDP.
WASHINGTON, D.C. – Today, the Biden administration announced a new agreement with the Mexican government to restart the Trump-era Migrant Protection Protocols (MPP). Under this policy, asylum seekers are required to wait outside the U.S., where they face violence and threats, while their claims are processed.
During the Trump administration, more than 60,000 asylum seekers were returned across the border to Mexico under MPP. In addition to re-starting MPP, the Biden administration continues using Title 42 to immediately expel migrants at the border without providing asylum seekers due process.
Ronnate Asirwatham, NETWORK Government Relations Director, said:
“We lift up the testimony of our partners at the border and the dignity of all immigrants and reiterate that meaningful access to counsel, justice, and due process under MPP is impossible. To even attempt it again makes a mockery of U.S. laws. We call on the Biden administration to end MPP and restore the ability to seek asylum at the border.”
Mary J. Novak, Executive Director of NETWORK Lobby for Catholic Social Justice, said:
“The use of the Migrant Protection Protocols forces vulnerable asylum seekers to live in unsafe conditions in Mexico while they wait for their cases to proceed in the United States. As President Biden tweeted before taking office, ‘Remain in Mexico is dangerous, inhumane, and goes against everything we stand for.'
“I join people of faith at the border and across the country calling on President Biden to recognize the human dignity of our siblings at the border and end this dangerous and inhumane policy as quickly as possible."
NETWORK – advocates for justice inspired by Catholic sisters – educates, organizes, and lobbies for economic and social transformation. They have a 45-year track record of lobbying for critical federal programs that support those at the margins and prioritize the common good. www.networklobby.org
The Immigration & Deportation Defense Clinic at the University of San Francisco is seeking an associate attorney who has experience in immigration law and deportation defense. The attorney will work primarily on cases involving asylum and special immigrant juvenile status for children and families throughout Northern and Central California who are in removal proceedings in the San Francisco Immigration Court. The attorney will also work on BIA appeals.
For more information click here.
Migrant Protection Protocols are Back! "DHS, Justice, and State Prepare for Court-Ordered Reimplementation of MPP"
A press statement from the Department of Homeland Security:
WASHINGTON – As required by a federal court order, the Department of Homeland Security (DHS) has been working in good faith to re-implement the Migrant Protection Protocols (MPP) program. Today, in coordination with the Departments of State and Justice, DHS announced key changes to MPP to address humanitarian concerns raised by the Government of Mexico and shared by the U.S. Government. Secretary of Homeland Security Alejandro N. Mayorkas has repeatedly stated that MPP has endemic flaws, imposed unjustifiable human costs, pulled resources and personnel away from other priority efforts, and failed to address the root causes of irregular migration.
To comply with the court order, however, DHS will be ready to reimplement MPP once the Government of Mexico makes a final and independent decision to accept the return of individuals enrolled in the program, subject to certain humanitarian improvements. These key changes include a commitment that proceedings will generally be concluded within six months of an individual’s initial return to Mexico; opportunities for enrollees to secure access to, and communicate with, counsel before and during non-refoulement interviews and immigration court hearings; improved non-refoulement procedures; and an increase in the amount and quality of information enrolled individuals receive about MPP. DHS will exclude particularly vulnerable individuals from being enrolled in MPP. In addition, DHS will offer COVID-19 vaccinations for all persons enrolled in MPP.
The U.S. Government will work closely with the Government of Mexico to ensure that there are safe and secure shelters available for those enrolled in MPP; that individuals returned under MPP have secure transportation to and from U.S. ports of entry; and that MPP enrollees are able to seek work permits, healthcare, and other services in Mexico.
On October 29, 2021, Secretary Mayorkas issued a new memorandum announcing and explaining his decision to terminate the program. This Administration, however, remains under a court order requiring it to reimplement MPP in good faith, which it will abide by even as it continues to vigorously contest the ruling.
Once the court injunction is lifted, MPP will be terminated.
The Administration remains committed to building a safe, orderly, and humane immigration system that upholds our laws and values. DHS also continues to process individuals in accordance with U.S. law and our mission.
The latest iteration of immigration provisions in the budget reconciliation bill went to Senate parliamentarian Elizabeth MacDonough, who has rejected previous attempts to include immigration provisions in the bill, yesterday, Suzanne Monyak reports in Roll Call. MacDonough will decide whether the provisions, which would grant temporary protections for millions of undocumented immigrants, adhere to the rule that reconciliation bills "primarily impact the federal budget."
Although there is no longer talk of anything like comprehensive immigration reform, the proposal is something. Stay tuned!
Immigration federalism has attracted overwhelming attention from scholars and advocates in recent years. Despite this, the scholarship has not fully explored the outer limits of states’ power to regulate noncitizens. This Article attempts to provide an account of these outer limits. To do so, it uses as a case study an important group of noncitizens with a complex relationship to state (and national) community. It is the first systematic analysis of the effects of state law on former immigrants to the United States, a group that has grown into the millions with increased deportations and voluntary out-migration. It also offers a novel treatment of two substantive state-law legal issues that are harming these millions of former immigrants.
Building on these descriptive observations, the Article offers a theoretical framework to guide state immigration law- and policymaking that emphasizes states’ powers to define community differently than the federal government. This framework, which the Article names “citizenship federalism” to highlight its linkages to and divergences from the antecedent concept of “immigration federalism,” focuses attention on states’ power to adopt different underlying values and criteria than the federal system does when deciding which noncitizens to place within the boundaries of community. This Article focuses on states’ power to challenge federal law’s reliance on territoriality, which federal law treats as the key boundary determining which noncitizens are within our national community. Citizenship federalism opens up significant possibilities for academics and practitioners alike, both for understanding the states’ role in constructing political and social membership and for moving towards a new generation of state-level immigration policy and advocacy.
Wednesday, December 1, 2021
Registration for the AALS conference is up and running.
This year's conference features a number of exciting panels on immigration:
- Wednesday January 5, 3:10 – 4:25 PM (Eastern): The Crisis of Afghanistan
- Thursday January 6, 3:10 – 4:25 PM (Eastern): Law Students and Faculty Rising to the Challenge: Responding to the Afghan Crisis
- Friday, January 7, 2-3 PM (Eastern): Immigration Law social
- Friday, January 7, 3:10-4:25 PM (Eastern): Immigrant Advocacy Inside and Outside Agencies, Courts, and Legislatures
- Friday, January 7, 4:45-6:00 PM (Eastern): New Voices in Immigration Law. This WIP session will focus on papers by Sabrina Balgamwalla (ICE Transfers as a Dimension of Immigration Detention) and Faiza W. Sayed (Secret Law at the Board of Immigration Appeals). Papers will be distributed ahead of time to readers -- just contact me about it.
- Saturday, January 8, 3:10-4:25 PM (Eastern): Immigration, Equality, and Security: The Biden Administration’s First Year and Beyond. This is our section's plenary session and will feature discussion with the Director of USCIS Ur M. Jaddou (!!!!!) and Amanda Frost (American WCL), moderated by Lucas Guttentag (Stanford). Woot. Woot.
Immigration Article of the Day: What is exploitation and workplace abuse?’ A classification schema to understand exploitative workplace behaviour towards migrant workers by Anna Boucher
The Immigration Article of the Day was just published in New Political Economy by Dr. Anna Boucher and titled: "What is exploitation and workplace abuse?’ A classification schema to understand exploitative workplace behaviour towards migrant workers."
Here is the abstract:
Migrant workers and domestic workers more broadly, suffer multiple forms of exploitation but the interaction of these forms lacks theorisation. The scholarship on exploitation includes modern slavery studies, Marxism and aligned accounts of unfreedom that help clarify the position of migrant workers. Yet, none of these accounts exhaust the array of exploitative practices that migrant workers face and these approaches often privilege economic violations over other types. This paper argues that a five-type classification schema – adding criminal infringement, denial of leave entitlements, safety violations and discrimination to economic violations – best encompasses the exploitation that migrant workers experience. Drawing upon a new database of 907 court cases litigated by 1912 migrant workers in four countries, it demonstrates that while economic violations predominate they often interact with these other four types of abuse. It suggests that both policy analysis and theoretical accounts of exploitation and abuse should address a broader array of workplace violations, which may provide a jumping-off point for further empirical studies of exploitation.