Monday, October 31, 2005
Within the last year, USCIS has submitted approximately 1.5 million name check requests to the FBI (for prospective immigrants and others facing immigration/removal problems). Of these, 233,000 are still pending. This does not include the 2.7 million names that the FBI had to re-run after 9/11, of which 2600 are still mending. The FBI has a first in, first out policy for conducting name checks. If there is a hit, an analyst has to review the physical file and any related documents. USCIS does have the ability to take request that the FBI take cases out of order. The FBI has implemented a phone number for individuals to call and inquire about the status of their name checks: National Name Check Office: 202-324-2399. You can also email to inquire the status of your case: email@example.com
Yesterday's L.A. Times provided insight into the ways that U.S. deportation of gang members may actually be promoting international gang activity. In an interdependent world, perhaps we should question long-standing assumptions regarding the efficacy of removal as a means of "incapacitating" criminals (and other "security threats"). The L.A. Times article is here.
Federal appellate judges in circuits around the country are expressing mounting concern that cases rushed through an administrative process have not only flooded some circuits with appeals but have also caused lives to get lost in the shuffle of streamlining. Federal judges have become more sharp in their criticism of immigration judges, with phrases like, "ignored the evidence" or "riven with error" or "astounding lapse of logic" or analysis that was "woefully inadequate." The problem has been growing in the wake of a three-year-old program to speed up resolution of a 56,000-case backlog at the time of the 9/11 attacks. The process cut DOJ's backlog of penidng cases to 29,000 this year.
Now two appellate courts are drowing in immigration appeals. The 9th Circuit has had 560% increase since 2001; the smaller 2d Circuit has had a 1,400% increase since 2001.
source: National Law Journal, Oct. 24, 2005
The University of Chicago Law School seeks proposals from individuals, organizations and groups interested in entering into a joint venture with the goals of: (1) providing high quality legal services to indigent immigrants and undocumented persons in the Chicago area and (2) training law students to identify and help to solve the legal problems of indigent immigrants and undocumented persons. Persons or entities making such a proposal must currently have, or demonstrate the ability to obtain, funding to support the work of the project including the salaries of the lawyers and support staff and other expenses associated with the legal work to be performed. The Law School will provide free space for two lawyers and up to two support staff in its state-of-the-art Kane Center for Clinical Legal Education. Project attorneys will receive appointments as Lecturers in Law from the University.
Proposals should include:
1. A detailed description of the legal work to be performed.
2. Demonstrated experience and expertise needed to provide high quality legal services to immigrants.
3. Evidence that the lawyers are capable of and interested in training University of Chicago law students to become effective advocates for persons with immigration-related legal problems and of understanding the social, economic, cultural and political context of the clients and the legal work
4. A detailed description of the existing or proposed funding for the project.
The Law School will arrange for twenty second and third year law students to assist the Project in performing legal work on behalf of the Project’s clients. Training and supervision of these students will be the responsibility of the Project. Project staff would be expected to work collegially with the other clinical teachers to maintain and enhance the clinical education program of the Law School. Additional information about the Law School’s clinical programs is available on the Law School website: http://www.law.uchicago.edu/academics/clinics.html.
The Project should be prepared to begin operation at the Law School on or about July 1, 2006.
Proposals should be sent, no later than December 15, 2005, to:
Mark J. Heyrman
Faculty Director of Clinical Programs
University of Chicago Law School
6020 South University Avenue
Chicago, Illinois 60637
FAX: (773) 702-2063
The Supreme Court has granted cert in an immigration case. The case is Fernandez-Vargas v. Ashcroft, 394 F.3d 881 (10th Cir. 2005). The decision, written by former law professor (and one of the persons rumored as a possible Supreme Court nominee) Mike McConnell, denied petitioner's request for the reversal of denial of adjustment of status under INA § 245(i). For the decision, see Download fernandez_vargas_immigration.pdf
For briefs and related materials, see
The Solictor General agreed with the petitioner that certiorari should be granted because of a split in the circuits on the application of aprovision of the Illegal Immigration Rreform and Immigrant Rresponsibility Act of 1996 (IIRIRA). IIRIRA adde INA § 241(a)(5), which provides that a prior order of removal may be reinstated against a noncitizen who has illegally re-enterd the United States; and (2) bars the noncitizen for applying for any relief. Fernandez-Vargas last was deported in 1981and was a small businessman for over twenty years and married a U.S. citizen in 2001. He sought to adjust his status under Section 245(i). At the interview for the petition, Fernandez-Vargas was placed incustody and placed in removal proceedings. The question was whether the new provision in IIRIRA applied to deportations before the law went into effect. The Tenth Circuit, in a decision by Judge McConnell, effectively found that it did and Fernandez was ineligible for relief under INA § 241(a)(5). This is the question before the Supreme Court. The briefing on the cert petition focused much on the retroactive effect of the 1996 law.
At the press conference when President Bush announced his nomination to the Supreme Court, Judge Alito emphasized the immigration background of his parents from Italy in 1914 (following the great wave of Italian immigration in the first decade of the 20th century). That background has not appeared to manifest itself in any pro-immigrant fashion as a jurist or at the Department of Justice. Some lawyers call the judge "Scalito."
Roughly translated, the nickname means "Little Scalia,"
suggesting that Alito, a judge on the 3rd U.S. Circuit Court of
Appeals, has modeled himself after Supreme Court Justice Antonin
Access of profile of Judge Alito at Law.com
President Bush today nominate 3rd Circuit Appeals Court Judge Samuel Alito for the U.S. Supreme Court. Alito, a former U.S. attorney who has been a judge for 15 years, is considered a favorite of the conservative movement and is Bush's third pick for retiring Justice Sandra Day O'Connor's seat. Bush is expected to announce the nomination at 8 a.m.on October 31.
Immigration profs may remember that Judge Alitoi wrote the Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993) decision for the Third Circuit. This was one of the Iranian "veil" cases. The decision denied the petitioner relief but left an avenue open for possible relief. The CNN website is portraying the positive part of the Fatin decision.
ALITO HOSTILE TOWARD IMMIGRANTS: In two cases involving the deportation of immigrants, the majority twice noted Alito’s disregard of settled law. In Dia v. Ashcroft, the majority opinion states that Alito’s dissent “guts the statutory standard” and “ignores our precedent.” In Ki Se Lee v. Ashcroft, the majority stated Alito’s opinion contradicted “well-recognized rules of statutory construction.” [Dia v. Ashcroft, 2003; Ki Se Lee v. Ashcroft, 2004]
Theodore Cox wrote to the immprof listserve that "anyone doubt that alito will hammer us in immigration decisions, please read attached decision. He was extremely dismissive in oral argument. he ruled that even though chinese alien had established persecution based on forced abortion of girlfriend, asylum denied, since otherwise `problematic factual inquiries' could arise." See Chen v. Aschcroft (3d Cir. 2004).
for a link to Judge Alito's immigration decisions, see http://www.ilw.com/search/results.asp?Fuzziness=4&Stemming=Yes&NaturalLanguage=No&sort=Date&MaxFiles=25&request=alito&index=%5C%5Cilw%5Cwwwroot%5CdtSearch%5CCases
Sunday, October 30, 2005
The Sacramento Bee (Oct. 20) reports a clash between Minutemen and anti-Minutemen demonstrators in Sacramento.
"California's growing divide over how best to secure its border with Mexico was on display Saturday at a noisy, but mostly peaceful confrontation between supporters and opponents of a measure to create state border police.
Nearly one thousand people participated in the two-hour standoff on the west side of the Capitol while more than two dozen police, many of them on horseback, stood between the rival gatherings. Authorities reported three arrests.
While the proposed ballot initiative to create a state immigration police force was the theme of the day, the underlining issue was the role that volunteer citizen patrols - so called Minutemen - are playing along the U.S.-Mexican border." For more of the story , see http://www.sacbee.com/state_wire/story/13785243p-14626958c.html (registration may be required). For pictures, see http://sf.indymedia.org/news/2005/10/1721346.php
The Minutemen continue to visit states throughout the Southwest. Having begun in Arizona, they have moved their demonstrations against illegal immigration to Texas and California. Needless to say, the Minutemen in Sacramento voiced support for an initiative that would create a state border police.
Saturday, October 29, 2005
A story in the Miami Herald (Oct. 30) "No U.S. appeal means no Posada extradition" by Alfonso Chardy reports that
Cuban exile militant Luis Posada Carriles no longer needs to worry about whether the U.S. government intends to deport him to Venezuela, his adoptive country. The 30-day deadline to appeal an immigration judge's Sept. 26 ruling against Posada's removal to the South American country expired Wednesday; the federal government did not appeal the decision, Posada's lawyers said Thursday. This means that unless the Bush administration finds a third country willing to take Posada or pursues Venezuela's extradition request in federal court, Posada is now virtually guaranteed permanent protection in the United States. Deportation to Cuba, Posada's country of birth, was ruled out earlier. U.S. officials had no comment on the lack of appeal, but noted that the immigration judge ordered Posada removed -- albeit neither to Venezuela or Cuba. ''The immigration judge has ordered that Mr. Posada be removed from the United States,'' said Dean Boyd, an Immigration and Customs Enforcement spokesman. ``ICE intends to carry out that order.'' `Relieved' Posada, held at an immigration facility in El Paso, Texas, told one of his attorneys Thursday that he was ''very happy and relieved'' that the U.S. government did not appeal the judge's order. Matthew Archambeault, a Posada attorney in the Coral Gables immigration law firm of Eduardo Soto, said his client was now looking forward to being released.
Does foreign policy ever enter into these types of decisions? :)
U.S. Citizenship and Immigration
Services recently announced this week that approximately 13,000 of the 20,000 H-1B visa
numbers designated for individuals holding a master's degree or higher from a
U.S. institution already have been used for the fiscal year, that just started October 1,
Opportunities for foreign nationals under this category may run out soon just a few weeks into the new fiscal year.
Friday, October 28, 2005
Texas Southern University, Thurgood Marshall School of Law, the Earl Carl Institute for Legal and Social Policy, Inc. and the Institute for International and Immigration Law, are hosting a Post-Katrina conference on November 18, 2005. Among the many fascinating topics are (1) "`Refugees' or `Displaced' Americans" and (2) Immigration Issues. Among the panelists on the international and immigration law panel are George Edwards (Indiana), Adrien Wing (Iowa), Ahati Touré (Houston), and Maurice Hew (Thurgood Marshall), with Judge (and Professor) Lupe Salinas (Thurgood Marshall) as moderator. For more information, see Download katrina_symposium_11_18_05_2.pub
The Senate will take up immigration legislation next year that will go beyond improved border security to the contentious issue of including undocumented immigrants in a guestworker program according to Senate Majority Leader Bill Frist. Frist wants to address employer sanctions in particular, and intends to deal with these issues in a border security bill. On Tuesday, Frist appeared with Senators John McCain and John Cornyn who have championed opposing approaches on the issues of undocumented immigrants and guestworker programs. McCain and Senator Ted Kennedy have introduced legislation that would place guestworkers on a path toward permanent residence if penalties are paid. Cornyn and Senator Jon Kyl support proposal that would require undocumented workers to return to their home country to apply for a temporary worker program.
source: Associated Press, Oct. 25, 2005
The Washington Post has a critical review today of Stanley Renshon's new book "The 50 Percent American: Immigration and National Identity in an Age of Terror" (Georgetown University Press, 2005). According to the review, the book contends that dual citizens have a shallow attachment to the American national community. http://www.washingtonpost.com/wp-dyn/content/article/2005/10/27/AR2005102701219_pf.html
FROM WWW.ILW.Com David Heenan's new book, "Flight Capital: The Alarming Exodus of America's Best and Brightest" http://www.flight-capital.com/ explores the consequences of immigrants who return to their home country equipped with the education, training, and work experience acquired in the U.S, resulting in a brain drain for the U.S. According to Heenan, approximately 200,000 foreign-born Americans have already returned to their native homelands attracted by the opportunities available back home. The book warns that current immigration policies dissuade foreign talent from settling in the U.S. and warns that immigration reform is critical to the economic survival of the U.S. The book examines in detail how countries around the world have benefitted from the innovations that returning natives have brought to their home countries. All is not lost, according to David Heenan, who provides in his book a dozen strategies for winning the talent war. For an article excerpt, see here. http://starbulletin.com/2005/10/23/business/bizcol.html
According to some reports, including CNN, Maureen Mahoney is one of the possible nominees to the U.S. Supreme Court. A former law clerk to Chief Justice Rehnquist and current Latham & Watkins partner, Mahoney served as Deputy Solicitor General in the first Bush administration. In that capacity, she successfully argued for the U.S. government in several important immigration cases including Sale v. Haitian Centers Council, Inc. (1993) (Haitian interdiction), INS v. Doherty (1992) (asylum claim of a former Provisional Irish Republican Army member), and ), and INS v. Elias -Zacarias (1992) (asylum claim of Central American). More recently, while in private practice, Mahoney successfully defended the University of Michigan law school's race-conscious affirmative action program in Grutter v. Bollinger (2003). Her role in Grutter probably decreases the likelihood that Mahoney gets the nomination.
Thursday, October 27, 2005
The AALS Annual meeting will be from Jan. 4-7 , 2006 at the Marriott Wardman Park in Washington, D.C.;as most of you law professors probably know, it was moved from New Orleans. The Section on Immigration Law Luncheon is on Friday, Jan. 6. (Unfortunately, it conflicts with the Section on Minority Groups Luncheon.). A Section on Immigration Law Program, co-spronsored by the Section on Minority Groups, will be on Saturday, Jan. 7 from 9 a.m.-noon; the topic is "Law and Policy Affecting Immigrant and Refugee Children." See description below. Another panel that may touch on immigration issues is the Section on Minority Groups program on "The Fate of Minority Inter-Group Collaboration, Conflict and Coalition Formation: A Critical Dialogue About Minority to Minority Race-Relations" on Friday, Jan. 6 at 10:30 a.m. to 12:15 p.m.
Here's a description of the Section of Immigration Law Program. The papers presented will be published in the Boston University Law Review and the Boston University Public Interest Law Journal.
Moderator: Susan Musarrat Akram, Boston University School of Law
Speakers: Jacqueline Bhabha, Executive Director, Committee on Human Rights Studies, Harvard University, Cambridge, Massachusetts
Berta E. Hernandez-Truyol, University of Florida Fredric G. Levin College of Law
Angela Lloyd, The Ohio State University Michael E. Moritz College of Law
Christopher Nugent, Community Services Team Administrator, Holland & Knight, Washington, District of Columbia
Linda Piwowarczyk, Co-Director, Boston Center for Refugee Health and Human Rights, Roxbury, Massachusetts
David B. Thronson, University of Nevada, Las Vegas William S. Boyd School of Law
This program will highlight the legal standards, policies, issues and particular problems affecting immigrant and refugee children in the United States. The program comprises two panels, the first focusing on issues relating to immigrant and refugee children subject to removal proceedings, including detention standards and conditions, removal process and procedures, special problems facing children under the relevant standards and procedures, and the effects of the removal and detention process on the psychosocial needs of children. The second panel, cosponsored by the Section on Minority Groups, focuses on constitutional rights, access to benefits, and problems of the applicability of such rights and benefits to immigrant and refugee children under state and federal law and policy. Both panels will incorporate aspects of U.S. domestic law and relevant international legal standards into the discussions.
Panel 1: Presenters Nugent and Akram, Bhabha and Dr. Piwowarczyk. Every year, thousands of migrant children are removed or deported by states because they lack regular immigration status. Some, such as Mexican children in the U.S. and Albanian children in Italy, are simply unaccompanied to the border and left to fend for themselves. More commonly, returned unaccompanied minors are handed over to welfare agencies, relatives, and state officials. No claim is made that this is a protective measure, although occasionally decision-makers argue that it is best for children to return ‘home.’ But neither is it claimed that removal or deportation are punitive measures for children the involvement of social services to trace and connect with families belies that. How, then, do states justify this aspect of their immigration policies? Do they consider children responsible for their irregular status and therefore in some sense culpable and deserving of punishment? Or do they consider children innocent victims of others’ choices? How, if at all, do they factor the ‘best interests’ of the child into their procedures? The removal procedures for unaccompanied minors highlight the tension between the state’s protective role as parens patriae, activating welfare support, and the state’s punitive role as border cop, ejecting illegals. Ms. Bhabha will focus on these questions, examining a range of circumstances in which unaccompanied minors are removed or deported by states under domestic and international legal frameworks, policies and practices in a range of states, and the urgent need for reform of current practices.
Mr. Nugent will focus more deeply on US domestic standards and policies affecting immigrant and refugee minors in detention. His discussion will highlight the particular problems of minors in the larger detention facilities on the US border, the problems of access to counsel and barriers to effective legal representation, from legal standards to immigration agency policies and practices.
Little has been written in the medical literature about the emotional impact of detention on children. Drawing from the available data and literature, Dr. Piwowarczyk will focus on the emotional effects of detention on children, and the particular psychosocial problems of children refugees in detention. She will review what is known by medical caregivers about the impact of trauma on refugee children, and put forward medical justifications for less restrictive responses than detention of immigrant and refugee children, and the need for more holistic settings for the long-term health and well-being of such children.
Panel 2: Presenters Thronson, Hernandez-Truyol and Lloyd. Immigration status plays a decisive, but largely overlooked role in family law matters. Professor Thronson has conducted a systemic review of family court decisions that reveal that judges and advocates in the family court setting frequently attach exaggerated legal significance to immigration status with little explanation and less analysis. Here, Professors Thronson and Lloyd will both explore in more depth the roles that child custody plays in immigration law. The erratic inclusion of custody requirements in immigration and citizenship law demonstrates lack of coherent policy regarding the role that custody should play in such settings. Moreover, the varying requirements of immigration law are out of synch with prevailing values and policies underlying custody determinations in family courts. Examining the lack of connection in these frameworks raises fundamental questions of childrens’ interests and rights, particularly immigration rights, within immigrant families. When children hold immigration rights that custodians are unable to claim, how can immigration law be reconciled with the complex realities of children as members of families? How, if at all, are traditionally recognized parental rights affected by immigration law? These two presenters will discuss the complex intersection of state family law and family courts on immigrant children’s rights.
Professor Truyol will look in more detail at U.S. immigration law affecting minors as it currently exists, as well as proposed legislation that affects documented and undocumented immigrant and minority families, such as the currently-debated ‘DREAM Act.’ She will compare the applicable U.S. domestic legal standards and jurisprudence to the relevant international human rights law framework, primarily the standards under the Convention on the Rights of the Child, as well as other instruments. How do recent Supreme Court opinions acknowledging the role of international standards compare with the jurisprudence on constitutional rights/benefits (or lack thereof) with regard to immigrant children?
Business Meeting for Section on Immigration Law at Program Conclusion