Monday, November 11, 2024

TRAC Immigration: Current Inadmissibility Decisions at U.S. Ports of Entry

TRAC Immigration reports that, in fiscal year 2024 over 1.2 million noncitizens arriving at United States by land, air and sea seeking entry were initially found to be “inadmissible.” While media coverage concentrates on immigration events at the U.S.-Mexico border, half (622,000) of these 1.2 million inadmissible individuals presented at ports not along the US-Mexico border.

The report takes a detailed look at the inadmissibility decisions. How have numbers changed over time, which ports have the highest volume, and what are the ultimate decisions port personnel make on whether these individuals are turned away or allowed to enter the U.S.?

Findings are based on an analysis of recently received case-by-case internal port authority records. These records cover periods through the end of fiscal year 2024 (October 2023 – September 2024).

There is lots of data here!

 

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KJ

November 11, 2024 in Current Affairs | Permalink | Comments (0)

Happy Veterans Day! Don't Forget Our Immigrant Vets

US Military Color Guard

Photo courtesy of U.S. Department of Veterans Affairs

The Veterans Day National Ceremony is held each year on November 11th at Arlington National Cemetery. The ceremony commences today at 11:00 a.m. EST with a wreath laying at the Tomb of the Unknowns and continues inside the Memorial Amphitheater with a parade of colors by Veterans’ organizations and remarks from dignitaries. The ceremony is intended to honor and thank all who served in the United States Armed Forces.

Please do not forget our immigrant veterans.  As of 2019, "nearly 900,000 immigrants are either veterans or active-duty service members of the U.S. Armed Forces."

KJ

November 11, 2024 in Current Affairs | Permalink | Comments (0)

Trump announces Tom Homan, former acting director of Immigration and Customs Enforcement, will serve as ‘border czar’

“I am pleased to announce that the Former ICE Director, and stalwart on Border Control, Tom Homan, will be joining the Trump Administration, in charge of our Nation’s Borders,” he wrote on his Truth Social site.

Former acting ICE director Homan recently promised the removal of entire families as an alternative to family separation on 60 Minutes (and here).

KJ

November 11, 2024 in Current Affairs | Permalink | Comments (0)

Sunday, November 10, 2024

LaVerne Justice and Immigration Clinic Helps Secure Asylum for Transgender Client

 Krystal Rodriguez-Campos

Krystal Rodriguez-Campos

Congratulations to the University of LaVerne's Justice & Immigration Clinic for securing asylum for a transgender, HIV-positive woman from Guatemala, who fled from severe abuseKrystal Rodriguez-Campos directs the Clinic.

According to the LaVerne Press release, "[d]espite facing numerous challenges, including a late asylum filing, a complex criminal history, and two interviews with the Los Angeles Asylum Office, [the applicant's] case was finally approved, granting her lawful status and offering a path to a new life in the U.S."

KJ

November 10, 2024 in Current Affairs, Immigration Law Clinics | Permalink | Comments (0)

Immigrants and Their Attorneys Preparing for Aggressive Immigration Enforcement Measures in a Second Trump Administration

With President-elect Trump's inauguration in January 2025, U.S. immigration policy will likely change dramatically, perhaps even from day one of the new administration.  As discussed by MSNBC, Newsweek, the New York Times, resistance can be expected, with immigrants and lawyers already considering future challenges to Trump immigration measures.  Remember the "small army of lawyers and civil rights activists [who] geared up for potential chaos and instances of denied entry into the United States . . . when President Donald Trump's [Muslim] ban began taking effect" in January 2017.

The ACLU website is planning for "Trump on Immigration":

"Our experts detail the threats a potential second Trump administration poses to immigrant families and America’s immigration system.

Read Our Blog for More Info

Read the Memo"

KJ

 

November 10, 2024 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: The Not-Smuggling Problem: The Effects of The United States' Overbroad Definition of Migrant Smuggling on Migrant Families by Valeria Martinez

Valeria  Martinez

The Not-Smuggling Problem: The Effects of The United States' Overbroad Definition of Migrant Smuggling on Migrant Families by Valeria Martinez, Wisconsin International Law Journal, volume 41, issue 3

Abstract

By signing and ratifying the United Nations Protocol Against the Smuggling of Migrants by Land, Sea and Air, the United States promised to the international community and to its citizens that it would adhere to a legal criminal definition of migrant smuggling that protects migrant families by only targeting in its language the organized offenders that aim to benefit financially or materially. After it made this promise, the United States did not amend 8 U.S.C. § 1324 to conform fully with the protocol. Contrary to the demands of the protocol, the statute does not establish as an element of the base offense of migrant smuggling intent for financial or material benefit. Instead, a prosecutor can decide whether to charge as a migrant smuggler one family member who assists another in entering unlawfully to the United States. The repercussions of this overbroad understanding of migrant smuggling are felt most in the immigration context in which a mother entering unlawfully into the United States while holding her infant is barred from seeking legal admission to the United States. This Article analyzes the protocol and finds that the United States falls short of its promise. I argue for amending 8 U.S.C. § 1324 and I propose that the United States extend the protocol's targeted migrant smuggling definition to its immigration statutes.

KJ

November 10, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Saturday, November 9, 2024

Immigration Article of the Day: Comparing U.S. And American Samoa Entry Policy by Nicolas Garon

Nicolas Garon

Comparing U.S. And American Samoa Entry Policy by Nicolas Garon

Abstract

While immigration laws and policy exhibit uniformity across the U.S., with jurisdiction from USCIS, there is an exception. This paper draws attention to the unique case of American Samoa. Unlike any other inhabited part of the U.S., American Samoa maintains its own immigration system, among many other distinctive features.

The article compares the visa systems of American Samoa and the rest of the United States, highlighting significant variations between the two regimes. An insightful cost analysis reveals that American Samoa’s entry permits are notably more cost-effective than U.S. visas, both for regular entry and transit, and also offer the extremely useful feature of digital applications. Furthermore, the article delves into unusual layers of bureaucratic involvement in visa requirements and departure procedures.

The article serves as an illuminating resource for legal practitioners and all those interested in the nuanced distinctions between U.S. and American Samoa entry policies. It contributes to a deeper understanding of the legal and practical aspects of entry regulations, underscoring the significance of these disparities in shaping the experiences of travelers and residents alike.

KJ

November 9, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (1)

Friday, November 8, 2024

President Trump’s Immigration Enforcement 2.0

45_donald_trumpOfficial White House Photo

President Trump’s Immigration Enforcement 2.0 by Kevin R. Johnson

In his first term, Donald Trump aggressively pursued immigration enforcement like no other modern President.  During the 2024 presidential campaign, Trump doubled down on his first term's tough–on-immigrant rhetoric and policy proposals. He made blatantly false claims about Haitian migrants eating pets and complained that immigrants were "poisoning the blood of our country."  Last but not least, Trump called for mass deportations like nothing the nation has ever seen.

Here are the five areas in which the second term of Donald Trump will likely see changes in U.S. immigration policy.  All of the changes could be subject to legal challenge.

Mass Deportation

Without elaborating on the details, Trump promised a mass deportation campaign to remove the approximately eleven million undocumented immigrants from the United States.  He may try to achieve mass deportations in several ways.

Trump has stated that the Alien Enemies Act of 1798 might justify mass removals.  Designed for use in war-time, that law was used to detain Germans, Japanese, and Italians during world wars.  The United States is not at war.  However, President-Elect Trump has referred to undocumented immigrants as “invaders” and declared that the nation is being subject to an invasion.

President Trump also has pointed to President Eisenhower’s Operation Wetback in 1954 as a model for his mass deportation campaign.  Led by a U.S. army general, the military style operation resulted in the removal of roughly one million persons of Mexican ancestry, U.S. citizens as well as immigrants.  Use of the military in the border region, or in the interior of the country, would raise a number of possible legal challenges.

As he proposed previously, President Trump could expand expedited removal -- removal of immigrants without due process authorized by 1996 immigration reforms -- to all undocumented immigrants apprehended in the United States no matter how long they had been here.  Expedited removal historically has been limited to noncitizens within the country for less than 14 days who were apprehended within 100 miles of the border.  Removal of long-term residents raises serious due process questions, as the life and liberty interests at stake in removal cases are high.  In addition, it is unclear how people in the interior of the country would be designated for expedited removal, with civil rights concerns lurking in the background

Border Enforcement

Even though the immigration enforcement benefits are questionable, President Trump has long championed building a wall along the U.S./Mexico border.  His first term saw the beginning of the construction of the wall.  President Biden put that massive project on hold.  Expect wall construction to resume with much fanfare in President Trump's second term 

In his first term, President Trump engaged in creative efforts to close the U.S./Mexico border.  Those efforts could be models for the second term.  His Remain in Mexico policy required asylum applicants at the border to wait in Mexico while their claims were being decided.  President Biden lifted the policy.  During the COVID-19 pandemic, the Trump administration used an obscure  public health law, Title 42, to close the border ostensibly to combat the spread of the virus.  It took time but President Biden lifted the order.

Interior Enforcement

The first Trump administration aggressively pursued enforcement of the immigration laws in the interior of the United States.  Discussed above, expanded expedited removal is one way of expanding interior enforcement. 

Expect the return of workplace raids as well as enforcement operations in public places, such as convenience stores and state courthouses.  Under President Trump, Immigration and Customs Enforcement apprehensions of noncitizens in state courthouses provoked a letter of protest from the Chief Justice of California to the U.S. Attorney General and Secretary of the Department of Homeland Security.

As the Trump administration did in his first term, the incoming administration likely will seek the assistance of state and local law enforcement in immigration enforcement.  Under Immigration and Nationality Act Section 287(g), state and local governments can enter into agreements authorizing their cooperation  with federal immigration enforcement.  Jurisdictions in some states, Arizona, for example, may be eager to enter into such agreements.  Those in California are unlikely to consider 287(g) agreements.  

The new Trump administration may bring challenges to laws declaring state and local governments to be sanctuaries for immigrants and refuse to fully cooperate with federal immigration enforcement authorities.  However, the first Trump administration lost lawsuits challenging sanctuary laws and courts halted federal efforts to withhold federal monies to state and local agencies that did not cooperate with federal immigration enforcement

Limit Legal Immigration

The Trump administration will likely seek to limit legal immigration.  The first Trump administration sought to limit family immigration, the cornerstone of the U.S. immigration laws, denigrating it as “chain migration.”  In his first term, President Trump supported legislation that would have reduced legal immigration from roughly one million a year to half that

To restrict immigration without changes to the U.S immigration laws, expect the Trump administration to tighten application of visa requirements and engage in closer review of visa applications, including those of international students, business visitors, and tourists.  This all occurred during Trump's first term.

The first Trump administration also tightened the public charge rule, which allows the exclusion from the country of persons likely to become a public charge and the removal of noncitizens who receive public benefits.  Trump’s proposed public charge rule was abandoned by the Biden administration.  Expect the proposed public charge rule from Trump’s first term to be brought back after his inauguration in January.

Refugees and Asylum

President Trump will likely reduce the annual allocation of refugee admissions, which President Biden had increased from the low levels of the first Trump term.  Trump also is likely to appoint an Attorney General who restricts asylum eligibility and prioritizes the removal of immigrants.

Conclusion

During the campaign, Donald Trump regularly talked about immigration enforcement.  Although he was sparse on the details, his first term offers an idea of the types of policies that he might pursue.  Some states may resist but, whatever happens, the nation is likely to experience a sea change in immigration enforcement in the second term of Donald Trump.

Kevin R. Johnson is Mabie/Apallas Professor of Public Interest Law and Chicanx Studies, University of California, Davis School of Law

November 8, 2024 in Current Affairs | Permalink | Comments (0)

Federal Judge Finds Biden Keeping Families Together Policy Unlawful

Photo courtesy of Wikimedia Commons

Newsweek and the Associated Press report that President Biden's policy granting legal status to spouses of U.S. citizens who unlawfully entered the country has been struck down by a federal court

Biden announced his "Keeping Families Together" initiative in June. The policy would have allowed roughly half a million spouses and children of U.S. citizens to apply for permanent residency without being required to leave the country.

Yesterday, U.S. District Judge J. Campbell Barker, appointed to the bench by President-elect Trump in 2019, sided with Texas and other Republican-led states. Even if the Biden administration appealed the ruling, Trump administration would likely abandon the policy.

UPDATE (Nov. 11):  Here is the court's ruling.

KJ

November 8, 2024 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: A Different “Border Crisis”: Civil Remedies for Unlawful Detainment After Egbert by Aimee Hernandez

A Different “Border Crisis”: Civil Remedies for Unlawful Detainment After Egbert by Aimee Hernandez

Abstract

In 1971, the Supreme Court decided Bivens v. Six Unknown Named Agents where the court created an implied cause of action for a private citizen to sue a federal official for a Fourth Amendment violation. This began to be known as a Bivens claim. Later cases created two more causes of action for a Fifth and Eighth Amendment violations in Davis v. Passman and Carlson v. Green. Beyond these three instances, the court has declined to extend the Bivens claim any further. Most recently, the Court's ruling in Egbert v. Boule essentially closed the door to Bivens, and with it, civil relief for constitutional violations by federal officials. In Egbert, the court held an individual did not have a Bivens claim against a Border Patrol agent for the violation of his First and Fourth amendment rights. In refusing to extend Bivens to the facts in Egbert, the Court pointed towards Congress to create a cause of action to remedy private citizens. In recent years, there has been an extensive influx of immigration, causing an increase in border security efforts. Congress and the Court have recognized several exceptions to constitutional rights at the border in the name of national security. Exceptions such as the 100-mile Border Exception have given Border Patrol increased latitude in policing at the border and nearby cities where an approximated two-thirds of the U.S. population lives. This latitude at times results in the infringement of constitutional rights of U.S. citizens. In 2019, an 18-year-old Dallas teenager, traveling through a Border Patrol checkpoint, was held in Border Patrol custody for nearly a month. This teen was a U.S. Citizen and had documentation to prove it, yet he was detained for weeks unable to make even a phone call. After Egbert, U.S. citizens who are unlawfully detained for extended periods of time, and who suffer from other unconstitutional conduct during their detainment, have little to no relief. Private citizens should have access to an adequate civil remedy that works to both compensate and deter further unlawful detentions. Along with providing relief, officers should be deterred from further conduct that infringes on the fundamental rights of U.S. Citizens. This Article proposes a statute that mimics a § 1983 claim and sets out statutory language that is narrowly tailored to consider government interest while protecting individual rights.

KJ

November 8, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Call for Submissions: Nebraska Journal on Advancing Justice

Announcing a newly launched, innovative journal at the University of Nebraska College of Law. The Nebraska Journal on Advancing Justice is a faculty and student co-led, peer-reviewed journal that aims to provide a forum for robust, creative, and disruptive scholarly engagement from academics, researchers, judges, lawyers, people who are justice-impacted, and community members on issues of advancing justice for all. The journal is committed to promoting intellectual discourse, methodologically diverse knowledge production, and critical analysis of legal and policy issues that impact people and groups across the country and world.

The journal is now accepting submissions for the inaugural volume. Work of all sorts (length, format, subject, etc.), including (and especially) from those who may not consider themselves traditional scholars is welcome. Please feel free to submit and/or pass along the information to clients, community groups, and others. More information is at: njaj.unl.edu.

IE

November 8, 2024 in Conferences and Call for Papers | Permalink | Comments (0)

Thursday, November 7, 2024

Virtual Event (November 13): The Wellbeing of Child Immigrants and Children of Immigrants in Mexico and the U.S.

 
 

 


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KJ

November 7, 2024 in Current Affairs | Permalink | Comments (0)

What Immigration Enforcement Look Like in a Second Trump Administration

45_donald_trump

Nick Miroff and Maria Sacchetti for the Washington Post preview immigration enforcement in the new Trump administration.  The mass removal campaign promised by Donald Trump is at the top of the agenda. 

We might see two former high level from Trump's first administration in high profile immigration roles in the second administration.  Two possibilities are former acting director of Immigration and Customs Enforcement Thomas Homan, who recently promised the removal of entire families as an alternative to family separation on "60 Minutes, (and here), and Chad Wolf, who was acting homeland security secretary at the end of Trump’s first term.

Miroff and Sacchetti discussed possible resistance of immigrant rights advocates to the Trump immigration enforcement measures.  There is little doubt that litigation is on the horizon:  

“`As bad as the first Trump administration was for immigrants, we anticipate it will be much worse this time and are particularly concerned about the use of the military to round up immigrants,'” said Lee Gelernt, a lawyer with the American Civil Liberties Union who challenged family-separation and other Trump policies in court. “`As always, we will go to court to challenge illegal policies, but it is equally essential that the public push back, as it did with family separation.'

`We have no choice other than to fight,' Gelernt said."

KJ

November 7, 2024 in Current Affairs | Permalink | Comments (2)

Immigration Article of the Day: Antitrust for Immigrants by Greg Day

greg day

Antitrust for Immigrants by Greg Day, Cornell Law Review

Abstract

Immigrants and undocumented people have often encountered discrimination because they compete against "native" businesses and workers, resulting in protests, boycotts, and even violence intended to exclude immigrants from markets. Key to this story is government's ability to discriminate as well: it is indeed common for state and federal actors to enact protectionist laws and regulations meant to prevent immigrants from braiding hair, manicuring nails, operating food trucks, or otherwise competing. But antitrust courts have seldom mentioned a person's immigration status, much less offered a remedy. 

This Article shows that antitrust's "consumer welfare" standard has curiously ignored the plight of immigrants. Part of the reason is that antitrust law is characterized as a "colorblind" regime beneftting consumers collectively, meaning that it isn't supposed to prioritize insular groups such as immigrants. Courts and scholars have also described matters of inequality and discrimination as "social harms" existing beyond antitrust's scope. In fact, antitrust lawsuits have successfully sought to drive immigrants out of markets, alleging that competitors gained an "unfair" advantage from employing undocumented workers. Under this view of antitrust law, the exclusion of immigrants is an appropriate way of promoting competition. 

This Article argues that anti-immigrant discrimination creates the exact types of harms that antitrust was meant to remedy. Since excluding immigrants can misallocate resources on citizenship or racial lines as opposed to their most productive usages, certain acts of discrimination should entail "conduct without a legitimate business purpose," even when based.

KJ

November 7, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Wednesday, November 6, 2024

Post-Election Roundtable on the Future of Immigration (In Person with Virtual Access)

Aoki

UC Davis Law Post-Election Roundtable on the Future of Immigration (In Person with Virtual Access)

Tue, Nov 12, 2024 @ 12:00pm - 1:00pm
 
What will happen on immigration with the reelection of Donald Trump?  Join us for a discussion on the future of immigration policy. The roundtable will explore potential immigration priorities of the new administration, concerns about emerging initiatives, strategies for advocacy, and hopes for positive change. Featuring Kevin R. JohnsonRaquel E. AldanaHolly S. Cooper, and Aidin Castillo Mazantini (Director, University of California Immigrant Services Center) —and moderated by Beth Greenwood, this event is co-sponsored by the Aoki Center on Critical Race and Nation Studies and California International Law Center.  
 
Click HERE for Livestream
 
KJ

November 6, 2024 in Current Affairs | Permalink | Comments (0)

An Appeal to the Incoming Administration and Congress 

National Immigration Forum

Jennie Murray

The following is a quote from Jennie Murray, President and Chief Executive Officer of the National Immigration Forum, on the election results: 

"Immigrants are essential to our social fabric. The National Immigration Forum will remain steadfast in our support not only of immigrants’ human dignity, but also of the American communities who rely on and welcome them.  

Voters spoke clearly that the economy is a top concern and that replacing our broken immigration system is urgent. President-elect Trump must work with Congress on reforms that can benefit all Americans by helping spur the economy and addressing border, asylum and legal-immigration challenges. 

Americans are frustrated with dysfunction, but they favor action to address more than just the border. We appeal to the incoming administration and Congress to listen to the strong majority of Americans, including Republican voters, who want Republicans and Democrats to work together on border and immigration solutions. More than 75% of voters, including 7 in 10 self-identified Republicans, support such solutions.  

We stand ready with our moderate and conservative constituencies to work together toward secure, compassionate policies. Humane and balanced solutions are not only possible but urgent. Leaders can start with the difficult conversations Republicans and Democrats in Congress already are having, look to pragmatic border and asylum solutions, and preserve and cement the contributions of immigrants here without permanent certainty, such as Dreamers and our resettled Afghan allies. 

President Trump’s actions during his first term caused tremendous uncertainty not only for immigrants, but also for their families, employers, and communities. Now that the election is over, we urge the president-elect to reconsider unworkable and costly policies he touted in the campaign, particularly mass deportation, which would separate families and damage our communities and our economy. 

Many immigrants, their loved ones, and all Americans who value immigrants and recognize their importance to our nation are anxious about the election results. The fact remains: Across the country, immigrants are working alongside native-born Americans, contributing to our churches, schools, communities and economy.  "

KJ

November 6, 2024 in Current Affairs | Permalink | Comments (0)

Arizona Voters Approve Initiative Allowing State and Local Law Enforcement to Arrest Suspected Undocumented immigrants

Flag of Arizona

Image of Arizona state flag courtesy of Wikimedia Commons

In 2012, the U.S. Supreme Court struck down the bulk of Arizona's controversial immigration enforcement law SB 1070.  Gabriel Sandoval for the Associated Press reports that Arizona is back to the immigration enforcement drawing board:

"Arizona voters have approved [Proposition 314, Arizona Immigration and Border Law Enforcement Measure] letting local police arrest migrants suspected of illegally entering the state from Mexico, an authority that would encroach on the federal government’s power over immigration enforcement but would not take effect immediately, if ever.

With the approval of Proposition 314, Arizona becomes the latest state to test the limits of what local authorities can do to curb illegal immigration. Within the past year, GOP lawmakers in TexasIowa and Oklahoma have passed immigration laws. In each case, federal courts have halted the states’ efforts to enforce them."

According to Ballotpedia, "[a] `yes' vote supported:

  • making it a state crime for noncitizens to enter the state at any location other than the port of entry;
  • allowing for state and local police to arrest noncitizens who cross the border unlawfully;
  • allowing for state judges to order deportations;
  • requiring the use of the E-Verify program in order to determine the immigration status of individuals before the enrollment in a financial aid or public welfare program;
  • making it a Class 6 felony for individuals who submit false information or documents to an employer to evade detection of employment eligibility, or to apply for public benefits, and;
  • making the sale of fentanyl a Class 2 felony if the person knowingly sells fentanyl and it results in the death of another person."

Opponents of Proposition 314 argue it would harm Arizona’s economy and reputation, as well as lead to the racial profiling of Latinos, a problem in the past with local police in engaging in immigration enforcement

The law will not go into effect immediately.  Some Arizona border sheriffs warn that there is no comprehensive way to enforce such a measure, Ben Giles of NPR reports. Before the vote, businesses expressed concern over how Proposition 314 could exacerbate already bad labor shortages, reports Emily Wilkins of CNBC

Expect legal challenges to follow.

KJ

November 6, 2024 | Permalink | Comments (0)

Donald Trump Re-Elected President, Human Rights Watch Expresses Concerns

45_donald_trump

Official White House Photo from First Term

After an extraordinary campaign, Donald Trump prevailed in the 2024 presidential election  The inauguration is in January. 

Immigration was a central dividing issue in the campaign.  The nation can expect the Trump administration to make many changes (and here) in immigration policy -- probably in short order.  It will be a whirlwind and immigration law professors will need to work hard to keep up.  Many already are discussing how to discuss the election outcome with current immigration law students. 

Upon Trump's reelection, Human Rights Watch released a news advisory.  It began:

"Donald Trump’s second term as United States president poses a grave threat to human rights in the United States and the world, Human Rights Watch said today. These concerns reflect Trump’s rights-abusing record during his first term, his embrace of white supremacist supporters and ideology, the extreme antidemocratic and anti-rights policies proposed by think tanks led by former aides, and campaign promises, including to round up and deport millions of immigrants and retaliate against political opponents." (bold added).

Click the link above for details about Human Rights Watch's concerns..

KJ

November 6, 2024 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: The Second Amendment Rights of Undocumented Immigrants by Alan Mygatt-Tauber

 

Alan Mygatt-Tauber

The Second Amendment Rights of Undocumented Immigrants by Alan Mygatt-Tauber

Abstract

 

In 2008’s District of Columbia v. Heller, the Supreme Court, for the first time, held that the Second Amendment protects an individual right to bear arms. Challenges to various federal gun control laws immediately followed, including challenges to 18 U.S.C. § 922(g)(5)(a), which prohibits possession by an undocumented immigrant. Between 2008 and 2022, courts faced with challenges to 922(g)(5)(a) universally upheld it. Then the Court decided New York State Rifle and Pistol Association v. Bruen, in which it discarded the means-end balancing tests the courts of appeals had adopted, instead preferring a test focused on “history and tradition.” Under Bruen’s test, if a regulation was targeted at conduct protected by the Second Amendment, it was presumptively invalid, unless the government could identify an analogous law from the time of the Founding. New challenges were filed. Many courts have continued to uphold the constitutionality of 922(g)(5)(a), but others have found that it is unconstitutional. And at least two circuits have upheld the statute on the ground that undocumented immigrants are not part of “the people” protected by the Second Amendment.

This article is the first in-depth look at the application of Bruen’s test, as modified by the Court’s June 2024 decision in United States v. Rahimi, that addresses both the question of whether undocumented immigrants are part of “the people” entitled to Second Amendment protections and, if so, whether any of the historical analogues identified by the government serve to justify 922(g)(5)(a)’s complete ban on gun ownership. It concludes 1) that undocumented immigrants are part of “the people” because status is irrelevant to the question—it is physical presence in the United States that matters; and 2) none of the purported analogues support a categorical ban on undocumented immigrants possessing firearms. Instead, they support an individualized analysis where only the dangerous may be disarmed.

KJ

November 6, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)

Oral Argument in Velazquez v. Garland: Tolling the Clock on Voluntary Departure

Court Building

Official Supreme Court Photo

On November 12, the Supreme Court will hear oral argument in Velazquez v. Garland.  In the case, the U.S. Court of Appeals for the Tenth Circuit denied review of Hugo Abisaí Monsalvo Velazquez's petition for review because he "failed to voluntarily depart or file an administrative motion within 60 calendar days, the maximum period provided by statute."  The issue before the Court is "[w]hether, when a noncitizen's voluntary-departure period ends on a weekend or public holiday, a motion to reopen filed the next business day is sufficient to avoid the penalties for failure to depart under 8 U.S.C. § 1229c(d)(1)." 

In a nutshell, Petitioner's argument is as follows:

"This case presents a straightforward question of statutory interpretation: when the “60 days” described in §1229c(b)(2) ends on a weekend or holiday, does the deadline carry over to the next business day? The answer to that question is equally straightforward: it does. "

A decision on the narrow legal issue before the Court will not likely have far-reaching impacts on the administration of the U.S. immigration laws.

KJ

November 6, 2024 in Current Affairs | Permalink | Comments (0)