Friday, November 30, 2007
"Lawmakers Gone Wild? College Residency and the Response to Professor Kobach" MICHAEL A. OLIVAS University of Houston Law Center http://ssrn.com/abstract=1028310
"Unsecured Borders: Immigration Restrictions, Crime Control and National Security" JENNIFER M. CHACÓN University of California, Davis - School of Law Full Text: http://ssrn.com/abstract=1028569
"The Overlooked Costs of Religious Deference" ROBIN FRETWELL WILSON Washington and Lee University - School of Law http://ssrn.com/abstract=1028776
"Citizenship and Fundamental Rights (Ciudadanía Y Derechos Fundamentales)" NORONHA RODRIGUES University of the Azores - Department of Economics and Business, Universidade de Santiago de Compostela - Departamento de Derecho Público y Teoría del Estado Full Text: http://ssrn.com/abstract=1026858
"In the Shadow of Article I: Applying a Dormant Commerce Clause Analysis to State Laws Regulating Aliens" ERIN F. DELANEY New York University - School of Law Full Text: http://ssrn.com/abstract=1027421
"The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power" JULIET P. STUMPF Lewis & Clark College - Law School Full Text: http://ssrn.com/abstract=935547
At the Border Policy conference that I am attending in El Paso, Richard Wiles, Chief of the El Paso Police Department had this response to a question about the notion of local law enforcement involvement in enforcing federal immigration laws:
"We recognize that we are one community--both El Paso and Juarez. The relationships, including family, have allowed the community to thrive. We know the majority come across for economic reasons. Some allege that illegals come across to commit crimes. But nothing could be further from the truth. El Paso is one of the safest places in the United States. Immigration is a federal responsibility. We have not been provided with extra resources. We don’t have the resources to take on federal immigration responsibility. What’s next? Will we have to knock on people’s doors to say that you owe back taxes to IRS? I’m not shirking my responsibility with respect to criminal law responsibilities. We know we have to work to prevent crime, but if crime is committed we need to find the perpetrator. We also know that many immigrants are victims of crime. But this is different from enforcing federal immigration laws. We have 1100 officers, and the community must respect and trust us. They can’t be afraid to call us. We don’t want them to worry that if they are a victim and call, that we will ask them for their papers. What worries me the most (I refer to this as blackmail) is that they try to force us to enforce immigration laws by conditioning grant monies on federal enforcement. Don’t tie general grants monies to this type of enforcement."
On behalf of the Immigrant Legal Resource Center, we are thrilled to announce that Sally Kinoshita has accepted the position of ILRC’s new Deputy Director. Deputy Director is a new position at the ILRC and we are very excited that Sally has accepted the position.
Sally graduated from the University of California at Davis School of Law in 1998 and has served as an ILRC staff attorney since 2001. Sally has dedicated her legal career to promoting policy and advocacy on behalf of immigrants. She is recognized nationally as an expert on immigration matters relating to domestic violence, child abuse and other crimes and has trained and mentored volunteer attorneys, advocates, judges, law enforcement agencies and social workers throughout the country. In addition to her invaluable work with ILRC, Sally has worked for the Asian Law Caucus, National Immigration Project of the National Lawyers Guild and ASISTA Immigrant Women’s Technical Assistance Project in Des Moines, Iowa.
Sally has conducted extensive training programs and developed comprehensive resource materials on immigration, domestic violence, sexual assault and human trafficking. She is also the author and co-author of numerous ILRC resources and practice manuals for legal advocates working with immigrant survivors of domestic abuse and crime. Her publications include, How to Obtain U Interim Relief: A Brief Manual for Advocates Assisting Immigrant Victims of Crime; Special Immigrant Juvenile Status for Children Under Juvenile Court Jurisdiction; The VAWA Manual: Immigration Relief for Abused Immigrants, Immigration Benchbook for Juvenile and Family Court Judges. Additionally, Sally co-authored, Application of Protection Remedies for Victims of Domestic Abuse, Human Trafficking, and Crime under U.S. Law to Persons Physically Present in the U. S. Territories for the Family Violence Prevention Fund.
We are confident that Sally will excel in her new position and that ILRC, as well as the community based organizations with which we partner and the immigrants we serve, will all benefit greatly with her as Deputy Director. Please join us in extending congratulations to Sally.
The interim assistant director is Rene Perez. The staff attorneys include Kathy Brady, Angie Junck, Nora Privitera, and Mark Silverman. Donald Ungar is Of Counsel to the ILRC and Bill Hing volunteers as its General Counsel.
ILRC Board Chair
Yesterday, we blogged about the return of refugees to Iraq. Unfortunately, in "Iraq Lacks Plan on the Return of Refugees, Military," MICHAEL R. GORDON and STEPHEN FARRELL report that "U.S. military officials said the Iraqi government had yet to develop a plan to absorb returning refugees and keep them from setting off a new round of violence." No plan. Sound familiar?
Caitlín Rebekah Kiernan (born May 26, 1964 in Skerries, Dublin, Ireland) is the author of many science fiction and dark fantasy works, including six novels, many comic books, more than one hundred published short stories, novellas, and vignettes.
As a small child, Kiernan moved to the United States with her mother. Much of her childhood was spent in the small town of Leeds, Alabama. Kiernan attended college at the University of Alabama at Birmingham and the University of Colorado at Boulder, studying geology and vertebrate paleontology, and she held both museum and teaching positions before finally turning to fiction writing in 1992.
Kiernan's first novel, The Five of Cups, was written in 1992-93 but was not published until 2003. Her first published short story was "Persephone," a dark science-fiction tale, released in 1995.
Kiernan has had short fiction selected for Year's Best Fantasy and Horror series, The Mammoth Book of Best New Horror, and The Year's Best Science Fiction, and her short stories have been collected in several volumes.
Kiernan lives in Atlanta, Georgia.
News from the North: Canadian Court Finds that U.S. Fails to Honor International Refugee Obligations
The Federal Court of Canada has ruled in favor of the Canadian Council for Refugees, Canadian Council of Churches, and Amnesty International in finding that it was inappropriate for the Safe Third Country Agreement to designate the United States as a "safe third country" for asylum-seekers (who if they make it to the U.S. before entering Canada can be returned there). The decision, 123 pages long, found that the United States fails to comply with Convention on Torture or Article 33 of the Refugee Convention and the U.S./Canada safe third country agreement was flawed as there was no ongoing meaningful review mechanism. Expert witnesses for the asylum-seekers included Eleanor Acer, Susan Akram (Bostin U), Deborah Anker (Harvard), James Hathaway (Michigan), Karen Musalo (Hastings), Victoria Neilson, Hadat Nazami, Jaya Ramji Nogales (Temple), Andrew Schoenholtz (Georgetown), Philip Shrag (Georgetown), Morton Sklar and Steve Watt. The Canadian government's witnesses were Kay Hailbronner, David Martin (Virginia), and Bruce Schoffield.
We will see what happens at the Canadian Supreme Court.
Eric Schlosser, author of Fast Food Nation and Reefer Madness, has an op/ed in the N.Y. Times about Burger King's wage dispute with Florida farm workers. From the story, it looks like McDonald's and Taco Bell are a tiny bit more generous to their workers.
Thursday, November 29, 2007
For an hour long discussion of "Immigration, Amnesty, and the Rule of Law" with T. Alexander Aleinikoff (Dean, Georgetown), John S. Baker, Jr. (LSU), Kris Kobach (UMKC), Gerald L. Neuman (Harvard), Judge Carlos T. Bea (U.S. Court of Appeals for the Ninth Circuit), click here. The Federalist Society's Administrative Law Practice Group presented this discussion at the 2007 Annual National Lawyers Convention on November 16, 2007.
For the most part, the discussion on this panel is pretty good. The Q&A revealed much about the audience but Dean Aleinikoff and Professors Neuman and Baker did a great job trying to keep the discussion "real," i.e., grounded in law and fact.
AP reportsthat Senator John McCain has staked out a "radical" position on immigration (at least in the current political climate with among others Rudy Guiliani and Mitt Romney fighting it out to be the toughest on immigrants) :
"Suggesting compassion, Republican presidential candidate John McCain said not everyone in the U.S. illegally should be deported.
"If you’re prepared to send an 80-year-old grandmother who’s been here 70 years back to some country, then frankly you’re not quite as compassionate as maybe I am," McCain said Wednesday in response to a question from a Clemson University student who described himself as the child of legal immigrants." (emphasis added).
George Lakoff and Sam Ferguson have written an essay on the language of the immigration debate:
Framing is at the center of the recent immigration debate. Simply framing it as about “immigration” has shaped its politics, defining what count as “problems” and constraining the debate to a narrow set of issues. The language is telling. The linguistic framing is remarkable: frames for illegal immigrant, illegal alien, illegals, undocumented workers, undocumented immigrants, guest workers, temporary workers, amnesty, and border security. These linguistic expressions are anything but neutral. Each framing defines the problem in its own way, and hence constrains the solutions needed to address that problem. The purpose of this paper is twofold. First, we will analyze the framing used in the public debate. Second, we suggest some alternative framing to highlight important concerns left out of the current debate. Our point is to show that the relevant issues go far beyond what is being discussed, and that acceptance of the current framing impoverishes the discussion. For the full essay, click here. Courtesy of the Rockridge Institute.
Mike Nizza reports in the NY Times:
Was it the success of the surge, or the urge to make a living? The motivations of Iraqi refugees returning home from Syria came into focus on Tuesday, when 20 busloads of them set out for Baghdad, though not before a sampling were interviewed by staff members of the United Nations refugee agency:
Some of the refugees heading back to Iraq said they were convinced that it was now safer. “I want to leave because the security situation in Iraq is much better and the atmosphere is less dangerous,” Abu Ali, a refugee from Baghdad, said as he waited to board a bus with his three children.
But many of the refugees said financial considerations, rather than security concerns, were the deciding factor in their decision to return. “The money is finished and my visa has expired,” said Ahmed Hussein from Baghdad’s Sadr City district. “Of course I want to stay here, but I can’t,” he said.
That mixed bag of anecdotes has a much more dramatic bent in light of statistics cited by the agency. About 17 percent of returning Iraqis were in Abu Ali’s camp, voting for the war’s success with their feet, as some have concluded. Most of the rest — about 70 percent of respondents — were voting instead for their wallets, and for a return on their own terms: without visas, they said, the Syrian authorities could have sent them back at any moment. Click here for the full story.
There were some immigration fireworks last night at the CNN/YouTube GOP presidential debate last night in St. Petersburg, Florida. Unlike previous debates in which the candidates focused their attacks on Hillary Clinton, Wednesday night saw the candidates attack each other. Rudy Giuliani and Mitt Romney traded jabs over immigration, which they have been arguing about on the campaign trail. As CNN described it,
"Romney attacked Giuliani's record, saying that as mayor, he promoted illegal immigration. And Giuliani shot back, accusing Romney of having a "sanctuary mansion" at his own home. "In his case, there were six sanctuary cities. He did nothing about them. There was a sanctuary mansion -- at his own home, illegal immigrants were being employed," Giuliani said.
Romney denied Giuliani's allegation, and the two raised their voices as they tried to talk over each other.
In his quest to appeal to the hard-line immigration wing of the party, Romney also turned some of his fire on the same topic toward former Arkansas Gov. Mike Huckabee, who has been rising in the polls. Rep. Tom Tancredo, who has anchored his candidacy on securing the borders and cracking down on illegal immigration, seemed delighted with the give and take, saying the other candidates were trying to "out-Tancredo" him."
For the YouTube question and the heated Romney/Guliani exchange on immigration, click here.
The immigration discussion at the debate has brought forth much commentary. NPR's "All things Considered" interviewed Susan Gzesh (University of Chicago) on some of the legal and ethical issues facing homeowners (or mansionowners) hiring workers. The Washington Post comments on the Romney/Guiliani immigration tiff and refers to them as the "newest nativists," while offering some kind words to Sen. McCain and Gov. Huckabee.
I have been interviewed on the radio several times in recent weeks about my new book. A question that often comes up in some form is "why don't immigrants assimilate like my immigrant ancestors did?" Samuel Huntington has made this argument in his book Who Are We? Similar charges were leveled at past immigrant groups including the Germans, Irish, Chinese, Japanese, southern and eastern Europeans, etc., etc. Well, there is much evidence that immigrants in fact do assimilate into American society (despite the scarcity of ESL programs and long naturalization backlogs). The Pew Hispanic Center provides the lastest piece of evidence of immigrant assimilation. According to its latest study, nearly all Hispanic adults born in the United States of immigrant parents report they are fluent in English. By contrast, only a small minority of their parents describe themselves as skilled English speakers. This finding of a dramatic increase in English-language ability from one generation of Hispanics to the next emerges from a new analysis of six Pew Hispanic Center surveys conducted from 2002 to 2006 among a total of more than 14,000 Latino adults. The analysis finds that fewer than one-in-four (23%) Latino immigrants reports being able to speak English very well. However, fully 88% of their U.S.-born adult children report that they speak English very well. Among later generations of Hispanic adults, the figure rises to 94%. Reading ability in English shows a similar trend. The analysis also finds that English is spoken more commonly at work than at home. The report is available at the Pew Hispanic Center's website, www.pewhispanic.org.
I have heard reporters say repeatedly that they understood that one could not rely on the "reports'"of anti-immigrant groups such as the well-funded Center for Immigration Studies. The unofficial paper of record seems to have missed that memo. The N.Y. Times reports as news that
"Immigration over the past seven years was the highest for any seven-year period in American history, bringing 10.3 million new immigrants, more than half of them without legal status, according to an analysis of census data released today by the Center for Immigration Studies in Washington.
One in eight people living in the United States is an immigrant, the survey found, for a total of 37.9 million people — the highest level since the 1920s. The survey was conducted by Steven A. Camarota, director of research at the center, which advocates reduced immigration." (emphasis added).
There is a blog -- There Krikorian Goes Again -- that is devoted to "[a] sampling of the more startling anti-immigrant things Mark Krikorian (Executive Director of the Center for Immigration Studies) has written or said." Check it out.
Why rely on a report as news from an advocacy group whose last report that even could be loosely characterized as pro-immigration was published in the Dark Ages?
Rufo Roman, currently of Spartanburg, South Carolina, is our Immigrant of the Day. Roman, who owns the restaurant Mexico Lindo East with his wife, Rita, is being held in detention awaiting deportation. Rufo pled guilty to re-entry of a deported alien but had admitted his illegal status on immigration forms several years ago as part of the process to gain permanent residency status and paid a $1,000 fine, his wife said.
Friends petitioned on his behalf, describing Roman as an otherwise law-abiding businessman trying to stay with his family through what he thought were the correct channels. "We tried to do it right to the best of our ability," said Rita, a native of Lebanon and a U.S. citizen. "The government never told us we did anything wrong until five years later. We paid the dues. We told them everything, to the best of our knowledge. "We're very sorry he entered the country illegally, but we tried to rectify it by making him legal."
The Romans were married in 2002 in the United States. Rita has one daughter, 11-year-old Nawal, whom Rufo, a Mexican national, helped raise since she was 3. He was head chef at the restaurant, which has hosted Spartanburg County Republican Party events, monthly chats with U.S. Rep. Bob Inglis and charity functions, including free dinners for the needy and fundraisers. County Democratic Party Chairwoman and former U.S. Rep. Liz Patterson, who lobbied on Rufo's behalf, called the way the case was handled unfortunate. "He's a successful businessman here in town and has been trying to get his green card for a number of years and did not realize he was in violation of the law," she said. Patterson said she was disturbed to learn immigration officials wouldn't allow the Roman family to pay for a flight to Mexico, where Rufo could begin application for residency, but rather are keeping him in custody at taxpayers' expense.
For more about Roman, click here.
Wednesday, November 28, 2007
A previous Immigrant of the Day, Judge Alex Kozinski has become the new Chief Judge of the U.S. Court of Appeals for the Ninth Circuit. Click here for the press release. the Ninth Circuit decides more immigration appeals than any other circuit in the country.
I have argued immigration cases before Judge Kozinski and have found him demanding but fair. Judge Kozinski has authored numerous immigration opinions on the Ninth Circuit. One of particular interest to readers of this blog is his concurrence in Rodriguez-Roman v. INS, 98 F.3d 416 (9th Cir. 1996), an asylum case in which the applicant had fled Cuba. in the concurrence, Judge Kozinski discusses the persecution at the hands of communist regimes, something that his family experienced first-hand in Romania.
We previously have blogged about the dropping of charges against the LA 8. The immigration judge, Bruce Einhorn, in the case, who has retired and is an adjunct professor of international human rights law and war crimes studies at Pepperdine, has written a scathing commentary in the Los Angeles Daily Journal (Download einhorn_112607.pdf ) about the U.S. government's handling of the LA 8 case and the lack of independence of immigration judges:
"Without judges emancipated from the tyranny of partisan rhetoric and political sound bites like "national security" and the "war on terror," the encroaching power of government in the name of freedom will make us all less free. In the end, my decision to dismiss the cases against Hamide and Shehadeh was not all about them but much about us, about our right to restrain the ambitions of an imperial and imperious executive.
In this epoch, as in all periods of national stress, our self-preservation requires much struggle and sacrifice - but never, ever must it steal from us our constitutional soul. If we become soulless, we will never be safe, from enemies foreign or domestic. Rather, we will be the walking dead, without a democratic destiny."
Guantánamo is Here: The Military Commissions Act and Noncitizen Vulnerability An Issue Brief by: Muneer I. Ahmad
Here is an "Guantánamo is Here: The Military Commissions Act and Noncitizen Vulnerability" An Issue Brief for the American Constitution Society by Muneer I. Ahmad. Professor Ahmad examines how the Military Commissions Act of 2006 ("MCA") allocates rights premised on a distinction between citizens and noncitizens, which, he argues, creates a rights differential supported by neither law nor reason. In the two upcoming Supreme Court cases, Boumediene v. Bush and Al Odah v. United States, the Court will decide whether the MCA constitutionally removes the right of habeas corpus for detainees at Guantánamo Bay. By analyzing the origins of the MCA, and how in its current form the Act "strips [the] substantive and procedural rights of noncitizens only," Professor Ahmad argues that the ramifications of the Court's decision may extend well beyond the Guantánamo detainees. For instance, in Al-Marri v. Wright, an attempt has been made to strip habeas rights for an individual detained in South Carolina. In addition, Professor Ahmad explains that the MCA's divide between citizens and noncitizens "contributes to a culture of immigrant vulnerability." He concludes that the MCA has raised "questions of how, and why, citizenship matters to the availability of the most fundamental protections against the exercise of state power," and in so doing "has brought Guantánamo to our shores."
Tova Indritz uncovered this wonderful "blast from the past" (Download cohen_guild_1939.pdf):
Last night I read a terrific article entitled The Social and Economic Consequences of Exclusionary Immigration Laws. It discussed the anti-immigrant climate in Congress and the country, that that these attitudes are commonly supported on the theories that (a) immigrants threaten the American standard of living, (b) that immigration increases unemployment, and (c) that immigration lowers the cultural level and menaces the American way of life. It then proceeded to analyze facts and statistics to show that each of these arguments are completely wrong.
It was well written and so very interesting.
The article was published in the October, 1939 (yes, that's 1939) issue of the National Lawyers Guild Quarterly (Volume 2, No. 3).
It was written by the brilliant Felix S. Cohen, a member of the Guild's National Executive Board and was then chair of the Guild committee on International Law. And, yes, if you do any Indian Law, he is the same Felix Cohen, who in 1942 published the seminal Handbook of Federal Indian Law, which is still updated and the standard treatise on Indian Law today. He also wrote Ethical Systems and Legal Ideals in 1933. At the time he wrote this article, although the publication does not say so, he was a lawyer in the Solicitor's office of the U.S. Department of Interior under Secretary Harold Ickes.
. . . Although some of the statistics are from the 1930 census, the general arguments are as fresh today as when written, and this strikes me as worth reprinting, to encourage those who toil in these vineyards today.
By the way, of the 11 bills he mentions in a footnote as then pending in Congress, the most succinct was one introduced by a Congressman from Georgia, which reads in its entirety as follows: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that after December 31, 1939, no immigrant (as defined in section 203, title 8, United States Code) shall be admitted to the United States. Sec. 2. That after December 31, 1939, every alien in the United States (as defined in section 173, title 8, United States Code) shall be forthwith deported." Makes one either laugh or cry.
Here's one quote in his discussion of the history of immigration law, after describing the 1882 Chinese exclusion laws: " The 'Whereas' clause of this Act is strangely reminiscent of explanations of aggression and racial persecution offered by certain European nations in recent years: 'Whereas, in the opinion of the Government of the United States, the coming of Chinese laborers to this country endangers the good order of certain localities within the territory thereof . . .' Apparently Congress, in its anxiety to do away with the riots and lynchings which were directed against Chinese in certain localities, decided that the proximate cause of the disorders was the existence of the Chinese victims. By preventing them from entering the country, Congress made sure that they would not be molested, and by denying those who had already entered the rights of citizenship, Congress made sure that their rights would not be violated."
This article is well worth a read. It is amazing how so many of the restrictionist arguments -- and the rebuttals -- never really change. Cohen's Legal Realist approach to the immigration debate is written in elegant prose with impeccable logic. What fun!
Inside Higher Education has an article on "Berkeley as the ‘Immigrant University" It begins:
"California has long been a land of immigrants; in 1920, almost a quarter of its residents were foreign-born, though the vast majority of the population had European roots. So it probably won’t shock anyone that the state’s flagship public university, the University of California at Berkeley, today has a strong immigrant tilt to its undergraduate student body. But even seasoned observers of the state and the university might be surprised by the extent of the immigrant presence at Berkeley, which the authors of a new study characterize as “tremendous and unprecedented": 63 percent of the campus’s undergraduate students (excluding international students) were either born outside the United States or have at least one foreign-born parent.
The figure is lower, but still strikingly high, in the University of California system broadly, with 54 percent of undergraduates at all nine campuses being first- or second-generation immigrants (the university’s campuses at Irvine, Riverside, Los Angeles and Merced have the largest immigrant populations after Berkeley)."
GO BEARS!! BEAT STANFORD! See "The Play." Disclaimer: Both BH and KJ are loyal Cal alums!