Wednesday, March 31, 2010
The U.S. Customs and Border Protection employees welcomed the arrival of Commissioner Alan Bersin today, following his appointment by President Obama Saturday.
With a background as federal prosecutor and as a big supporter of Operation Gatekeeper, Bersin can be expected to maintain the "enforcement now, enforcement forever" approach of the U.S. Department of Homeland Security when it comes to immigration.
The Supreme Court heard oral argument today in Carachuri-Rosendo v. Holder, which involves removal based on multiple criminal drug offenses. For the transcript, see Download 09-60. For some background on the case, click here.
The case turns on some technical issues of statautory interpretation under both state and federal laws. The transcript reveals that the Justices directed heated questions at both sides Although it is difficult for me to guess which side will win the case, my gut tells me that the government wins.
One thing is clear: Justice Thomas kept his streak alive of not saying a word at oral argument!
Teresa Wantanabe of the L.A. Times reports that "Turning up the political heat for immigration reform, major Latino organizations plan to unveil today a voting score card that found that 40% of California House members with a significant number of Latino, Asian and foreign-born constituents have not consistently supported what they view as pro-immigrant positions."
UPDATE: A consortium of major national Latino organizations released a legislative report card revealing anti-immigrant legislative actions by a surprising number of legislators including many with large immigrant-profile constituencies. “The National Latino Congreso (NLC) provides this Interim Progress Report of the Immigrant Justice Report Card (IJRC) as a resource to policymakers, the media, and the voting public. The IJRC Interim Progress Report provides a statistical review of the voting and sponsorship records of all members of Congress, yielding a percentile score for each individual legislator based on their level of support for progressive immigration-reform/immigrant-rights legislative proposals”, said Rosa Rosales, National President of League of United Latin American Citizens (LULAC).
Dean Kevin Johnson posted the great news on the Padilla v. Kentucky decision earlier. Depending on the jurisdiction, we know that 80 to 90 percent of criminal convictions result from plea bargains. This could mean that significant number "deportable" criminal aliens may have a basis for challenging their underlying convictions, and this may result in the slow down of DHS's removal efforts. We need some quantitative work on this to know for sure.
The UC Davis School of Law Immigration Law Clinic, together with UC Berkeley School of Law's International Human Rights Law Clinic and Chief Justice Earl Warren Institute on Race, Ethnicity, and Diversity, has released a policy brief urging Congress to address policies that mandate the deportation of lawful permanent resident (LPR) parents of thousands of U.S. citizen children each year. At least 88,000 U.S. citizen children were impacted between 1997 and 2007, the report estimates.
Entitled "In the Child's Best Interest? The Consequences of Losing a Lawful Immigrant Parent to Deportation" (Download Childsbestinterest), the brief details the ways in which current immigration laws mandate the deportation of LPR parents without offering the opportunity to challenge the forced separation from their children.
With Congress set to consider comprehensive immigration policy reforms, the brief argues for a restoration of judicial discretion in all cases involving deportation of LPRs with U.S. citizen children; a reversion to the pre-1996 definition of "aggravated felony," which was reserved for the most serious offenses; the collection of data on U.S. children impacted by the deportation of an LPR parent; and the establishment of guidelines by the Executive Office for Immigration Review for the exercise of discretion in deportation cases.
This month, the United States has seen renewed serious discussion of immigration reform in the U.S. Senate. After meeting with President Obama, Senators Charles Schumer (D-NY) and Lindsay Graham (R-SC) floated a “blueprint” for reform on the opinion pages on the Washington Post. This followed a long silence after Representative Luis Gutierrez’s introduction of a comprehensive immigration reform bill (CIR ASAP) in the U.S. House of Representatives last December. On March 21, tens of thousands of supporters of immigration reform marched in Washington D.C. President Obama, appearing by video on the big screen for the marchers, voiced general support for immigration reform.
The national dialogue is the first time during in the Obama administration that we have seen serious national discussion of reform of the much-maligned immigration system in the United States. But, even that was overshadowed by the unforgettable brouhaha over health care reform. With health care reform legislation passed by Congress, the time is ripe to move on to immigration reform. Of course, a discussion of this volatile issue -- replete with fiery rhetoric over amnesties, an out-of-control border, and “illegal aliens,” along with generalized concerns with the drug war, violent drug cartels in Mexico, and terrorism, is extremely difficult for politicians in an election year, especially an off-year election in which the Democrats in Congress are expected to take a big hit.
What better time than to visit the U.S./Mexico border, the place that many -- perhaps most -- people thinks of when the topic of immigration and immigration reform come up in the United States. An immigration conference in San Diego, which included a Border Patrol tour of two local ports of entry, offered me the opportunity.
Not long after the implementation of Operation Gatekeeper in 1994, I toured the U.S./Mexico border near San Diego with the Border Patrol. Along with a group of U.S. and European academics with research interests in immigration, I rode with Border Patrol officers, visited then-expanding detention facilities, and met with Gustavo de la Viña, the well-known Border Patrol chief who then was in charge of the San Diego sector. One of the things that struck me was the military “feel” of the operation; it sure did not seem like ordinary law enforcement at work. Recall that this was long before the “war on terror” after September 11, 2001, which led to much greater border enforcement and the oft-stated sentiment that better enforcement of the the nation's southern border with Mexico was essential to ensuring the safety of Americans in a post-9/11 world. I also felt that I had more in common with the hapless immigrants in detention than the heavily-armed Border Patrol officers attempting to chase them down.
Despite the many border enforcement operations -- Operation Gatekeeper was only one of many -- put into place since the early 1990s, the United States has seen a doubling of the undocumented immigrant population, from around 5.5-6 million in 1994 to 11-12 million currently. To make matters worse, the death toll of the border operations continue to mount. Because of the expanded border fence and greater Border Patrol presence in large cities like San Diego and El Paso, migrants have been re-routed from urban areas on the border into more remote – and more deadly – deserts and mountains. As my fellow blogger Professor Bill Hing has thoughtfully and eloquently written, the moral consequences of Operation Gatekeeper -- thousands of horrible deaths -- is a blight on the American conscience.
More than a decade later in April 2006, I visited the U.S./Mexico border region with a group of journalists south of Tucson, Arizona. In Sasabe and Altar, Mexico, we saw where undocumented immigrants began the last leg of their journey to the United States. Etched is my memory is a discussion with a young woman who planned to make the crossing with her toddler daughter (who reminded me of my youngest daughter, Elena), a journey through the desert and mountains where life and death literally were at stake. I also will never forget the people praying for a safe journey in the church in the Altar plaza.
This past Monday (March 29), I traveled to San Diego for a conference of U.S. and European academics devoted to “Population, Integration and Law: Implications for Immigration Policy,” sponsored by the German Marshall Fund TEAMS, UC Berkeley European Center of Excellence, and UC San Diego Center for Comparative Immigration Studies. It was organized by Phil Martin (Agricultural Economics, UC Davis) and Kay Hailbronner (University of Konstanz, Germany). Here is the full program, with links to some of the papers presented.
The conference provided a rich discussion of recent developments on immigration, integration, and immigration reform in the United States and Europe. Speakers came from universities, government, and think-tanks in the United States and Europe.
At the end of the presentation and discussion, the group went on a tour of the border region near the Otay Mesa and San Ysidro ports of entry and along the border fences to the Pacific Ocean. There are two fences along this section of the border: (1) one is made of old corrugated metal air strips used in Viet Nam that created a rickety fence on the actual border between the United States and Mexico: and (2) the other fence is a relatively new, stainless steel (appearing at least) mesh fence with razor wire on the top located a few hundred yards from the first fence on the U.S. side. (See the picture below.). Our Border Patrol guide explained that the razor wire deterred migrants from climbing the fence and falling, thus requiring the “waste” of taxpayer money because a Border Patrol officer had to spend time at the hospital watching over the migrant. That made me wonder about the human costs of razor wire and the migrants who tried to get over it.
During the one-and-a-half hour afternoon tour, there appeared to be relatively few migrants in the general vicinity of the two border fences. We stopped to look at a neighborhood in Tijuana known as Colonia Libertad, which we were told was a haven for drug dealers; the only things we could see were a run-down neighborhood with children and dogs peacefully playing on a springtime afternoon. As we drove past Smuggler’s Gulch, the road, which had been paved in places since my last visit, was bumpy and windy but no smugglers appeared on the horizon. We made it to the famous bull ring by the beach where the border fence that had extended a short way into the ocean had been washed out by the waves. The state park on the U.S. side of the fences had a grand vista of the Pacific but was inhabited, it appeared, only by Border Patrol vehicles.
All in all, it was a pretty uneventful trip. The U.S./Mexico border south of San Diego appeared much calmer than I remembered it more than 15 years ago. Still, at least listening to the Border Patrol officers, it did appear that the old game of cat-and-mouse remained; some migrants seek to come up with new schemes to enter the United States and the Border Patrol attempts to figure out and stop the new schemes.
Importantly, the fence only goes for 12 miles or so inland and, after it ends, migrants can enter, only at greater risk to their lives. Ultimately, the enforcement does not appear to have put much of a dent in undocumented migration but rather only appears to have redirected migrant traffic, resulting in many deaths.
In the end, one is left to wonder what the border enforcement build-up accomplsihed. Billions of dollars were spent and migration in a few major border hubs was quieted down. But, even though the flow appears to have been reduced with the recession, migrants continue to come and millions of undocumented immigrants live in the United States.
The Supreme Court, in a 7-2 decision written by Justice Stevens, held in Padilla v. Kentucky that a noncitizen could base an ineffective assistance of counsel claim on his attorney's alleged failure to inform him of the immigration consequences (possible removal) of a criminal conviction. Download 08-651 Justices Roberts and Alito concurred in the judgment. Justices Scalia and Thomas dissented.
A previous Immigrant of the Day, Jaime Escalante, the former East Los Angeles high school teacher who taught inner-city students calculus, died Tuesday. He was 79. Here is an obituary from the L.A. Times.
Escalante was a math teacher famous for his work at Garfield High School in East Los Angeles, California. At Garfield, he taught predominantly Chicano students calculus, from 1974 to 1991.
Escalante was born in La Paz, Bolivia. In 1964, he decided to move to the United States. He studied science and mathematics at the University of Puerto Rico. He moved to California when he still could not speak English. Escalante studied at night at Pasadena City College and earned a mathematics degree at California State University Los Angeles.
From 1974 until 1991, Escalante taught in the Los Angeles Unified School System. From 1991 until 1998, he taught algebra and calculus for the Sacramento Unified School District. In 2001, after many years of preparing teenagers for the AP calculus exam, Escalante returned to his Bolivia.
The 1987 film Stand and Deliver, starring Edward James Olmos as Jaime Escalante, introduced the nation to the dramatic story of Jaime Escalante.
Texas Appleseed, with pro bono counsel Akin Gump Strauss Hauer & Feld LLP, today released its report, Justice for Immigration’s Hidden Population (Download 1269915942_Immigration Detains Booklet_ONLINE_REV), and urged major changes within the nation’s immigration court and detention system to ensure fair treatment and due process for immigrants with mental disabilities.
About a quarter of all immigrants apprehended annually in the U.S. are sent to detention facilities in Texas, “but the problems we uncovered are not unique to Texas,” said Texas Appleseed Executive Director Rebecca Lightsey. Steven Schulman, Akin Gump’s firm-wide Pro Bono Partner, said, “Immigrants with mental disabilities are detained in a system ill-equipped to care for them and often arbitrarily transferred away from their communities, denied basic due process in a complex immigration court system, and released from detention or removed from the U.S. with little concern for their safety and well-being.” “There is precedent under the law to extend special legal protections to vulnerable populations, and such special protections should be extended to persons with mental disabilities in the immigration court and detention system,” he said.
Other major Texas Appleseed recommendations include:
Immigrants with mental disabilities should be placed in the least restrictive setting -- and allowed to continue receiving mental health services in the community or in a hospital while their immigration cases are adjudicated.
Immigration Customs Enforcement (ICE) should improve and establish consistent procedures for screening and diagnosing mental disabilities, improve mental health care in detention, and provide timely access to medical records. “When immigrant detainees do not receive timely or appropriate medication, many decompensate to the point that they cannot comprehend their situation or participate meaningfully in deportation proceedings,” said Texas Appleseed Senior Policy Analyst Ann Baddour.
Over 80 percent of detained immigrants have no attorney, and currently there is no process for establishing competency in immigration court. The U.S. Department of Justice should adopt consistent procedures for recognizing immigrants with mental disabilities and adopt standards to accommodate these disabilities in immigration courts, including standards for appointing counsel.
ICE should develop and follow clear procedures to ensure safe domestic release or repatriation of immigrants with mental disabilities. (In one case cited in the report, the parents have not been able to find their son with mental disabilities two years after his release from detention.)
The report, available at www.texasappleseed.net (see Home Page: In the Spotlight), is based on a year-long review of the immigration court and detention system in Texas. It follows on national Appleseed study, Assembly Line Injustice: Blueprint to Reform America’s Immigration Courts.
This Council on Hemispheric Affairs research paper, by COHA Research Fellow Alexandra Deprez, has been under preparation for a year. Ity synthesizes current developments regarding environmentally-driven human migration –and more specifically, migration caused by the environmental manifestations of anthropogenic climate change– which are capable of exposing their potential harmful effects in Central and South America, as well as the Caribbean. Although this region has received far less media attention and academic focus than Western Africa, South East Asia or the Pacific Islands, it certainly houses the climate and non-climate factors that could cause mass human displacement as a result of a strategy threat to the safety and welfare of a strategic threat to the safety and welfare of affected areas of sizable parts of the world. The first section introduces the concept of environmentally-induced migration, expounding upon the current state of the debate surrounding it and the challenges it faces. This is followed by an examination of different climate processes and natural disasters as drivers of migration in Latin America. It also addresses non-climate factors such as poor governance, poverty, overpopulation, and unequal land distribution that can compound these migratory pressures.
The second section opens with a case study of Mexico, a country several reports have identified as a potential hotspot for environmentally-induced migration in Latin America, due to the confluence of climate and non-climate migration factors it houses. The relevance of this study is also increased due to Mexico’s position as the largest immigration feeder to the United States. The segment goes on to discuss larger developmental impacts of environmentally-induced migration in Latin America –such as the effects on regions of origin and destination, the health and security issues migrants face, and the debate between environment, migration and national security factors– before ending with a speculation of which potential actions the United States might eventually take to address what could be a looming problem.
Despite high unemployment, the global economy enters a decade of unparalleled talent scarcity. If left unaddressed, it will put a brake on economic growth in both developed and developing countries, warns Stimulating Economies through Fostering Talent Mobility, a new report released today by the World Economic Forum in collaboration with The Boston Consulting Group (BCG).
The report demonstrates the magnitude of an impending global labour crisis by analyzing talent shortages across 22 countries and 12 industry sectors and argues that talent mobility can stimulate economies in both developed and developing countries. By 2030 developed world will need millions of new employees to sustain economic growth (USA 26 million employees, Western Europe 46 million employees). Developing countries, not affected by aging populations (the workforces of India and Brazil will grow by more than 200 million people over the next two decades), will also face huge skills gaps in some job categories due to low employability.
In a piece on Huffington Post, Frank Sharry of America's Voice says some immigrant rights leaders think that ICE has already gone rogue. He reports that "Today, a group of grassroots leaders are demanding that the Obama Administration fire John Morton, the head of the U.S. Immigration and Customs Enforcement (ICE) within the Department of Homeland Security. Deepak Bhargava of the Center of Community Change, a lead organizer of the immigration rally in Washington, D.C. on March 21st and a leader of FIRM (Fair Immigration Reform Movement), had this to say at today’s press conference: `This agency has gone rogue and is operating in clear opposition to the direction President Obama has set.' What gives? It seems the stated priorities of President Obama may not be in sync with the cowboy tactics of ICE agents in the field."
The call for Morton's resignation is tied to the recent controversy over the public disclosure of a memo that created quotas for arrests of immigrants, which Morton later claimed had been "withdrawn" and did not represent ICE policy. However, there are deeper concerns with ICE, including its detention and enforcement practices generally in an administratiion that this blog has claimed is devoted to immigration "enforcement now, enforcement forever."
Tuesday, March 30, 2010
Unequal Partners: The United States and Mexico by Sidney Weintraub: in this book, Sidney Weintraub, an expert on teh complex relationship between the United States and Mexico, examines the current relationship of Mexico and the United States as one of sustained dependence and dominance. The chapters examine the consequences of this imbalance in six major policy areas: trade; investment and finance; narcotics; energy; migration; and the border.
From Angela Kelley and Gebe Martinez of the Center for American Progress:
It should come as no surprise that partisan acrimony lingers following the enactment of sweeping health care reforms. For months, members of both sides have accused each other of playing dirty on a number of issues. But surely they must be wondering how they got to the point where the politics of “no” became “Hell no!” How did the well get so poisoned, to the point that enraged constituents have turned political threats into death threats against congressional members?
It does not have to be that way. Congress has a chance to do something positive, not by walking away from future legislative battles, but by taking on a tough issue like immigration that the public wants resolved.
Cynics may snicker at the suggestion that immigration may be the rope with which to climb out of the poisonous well. After all, it has a history of ugly rhetoric by restrictionists who are angry by the demographic changes occurring across the United States and who falsely use the slow-moving economy as an argument against comprehensive immigration reform.
But immigration offers Congress a way to move forward because it’s traditionally been a bipartisan issue. The center of the Senate immigration debates in 2006 and 2007, for example, was a bipartisan bill the majority of senators from both parties supported. And especially in this economy, Congress has an obligation to pass an immigration bill that is tough, fair, and practical and that will help, not hurt, the national economy.
That's why Senate Immigration Subcommittee Chairman Charles Schumer (D-NY) and Sen. Lindsey Graham (R-SC) renewed this weekend their commitment to keep working on immigration and seek strong engagement from President Obama and other senators. While timing for action on a bill is unclear at the moment, there is agreement that something must be done.
Broad immigration reforms will add a cumulative $1.5 trillion to the U.S. gross domestic product over 10 years, according to a study by the Center for American Progress and the Immigration Policy Center. In the program’s first three years, tax revenues would increase from $4.5 billion to $5.4 billion and generate enough new consumer spending to support 750,000 to 900,000 jobs in the United States. The real wages of workers—U.S. born and immigrants—will also rise under comprehensive immigration reform.
Comprehensive reform will include enacting a tough new immigration program that will enforce the borders and the interior so that unscrupulous employers do not unfairly depress the wage scale, exploit workers, and cheat on tax payments. It will contain a fair immigration system to meet the nation’s economic needs for low-skilled and high-skilled workers, and also protect families. And it will require the current undocumented immigrants to register, pay fines and back taxes, learn English, and eventually become citizens.
Beyond their economic benefits, these reforms will strengthen our values as a nation of laws and a nation of immigrants. That is why law enforcement officers, faith leaders, unions, and communities of all colors support immigration reform. Case in point: More than 200,000 people from more than 40 states gathered peacefully on the National Mall on March 21 to show their support and to call on Congress to show courage and lead.
Mass deportation, the alternative to a comprehensive approach, won’t work. Deporting a population totaling almost 11 million, aside from the human cost, would be a gross waste of taxpayers’ dollars and hardly practical, according to a recent CAP study.
The government would have to take $922 from every man, woman, and child in the United States to come up with the $285 billion that would be needed to apprehend, detain, legally process, and transport undocumented immigrants and maintain the current enforcement strategy at the border and in the interior. That kind of money could be put to much better use, and the economy would mightily suffer if undocumented immigrants were forced out. Our GDP would lose a cumulative $2.6 trillion over 10 years.
And here’s another thing for congressional members to consider: The political math as well as the economic math adds up in favor of immigration reform. A record 10 million Latino voters in 2008 were critical to President Barack Obama’s victories in key states such as Colorado, Nevada, North Carolina, and Indiana. He had to work hard to win their support during the Democratic presidential primaries. In the two previous elections, President George W. Bush won because of the large support he received from Hispanic voters. While Latinos are just as concerned as other voters about the economy, a candidate’s stance on immigration helps them separate the “good” guys from the “bad” guys in an election.
In other words, a lawmaker who votes for this bill can win the support of the fastest-growing part of the electorate that has wide independent streaks.
There is still truth in the axiom, “Good policy makes good politics.” Immigration offers a chance to help workers in this struggling economy and to stop playing politics with a badly broken system.
Angela Kelley is Senior Vice President for Immigration Policy and Advocacy and Gebe Martinez is a Senior Writer and Policy Analyst at American Progress.
Are there serious flaws with the U.S. immigration system? Yes, was the primary response echoed by a group of leading immigration experts who convened at Penn State University’s Dickinson School of Law on March 18 for a symposium titled “Immigration Adjudications: Court Reform & Beyond." Sponsored by Penn State Law's Center for Immigrants' Rights and organized by Professor Shoba Sivaprasad Wadhia, director of the center, the program included a diverse lineup of speakers with backgrounds ranging from current immigration judges and legal practitioners to representatives from the Executive Office for Immigration Review (EOIR) and Equal Justice Works. Throughout the day, the panelists examined the state of immigration adjudications and debated proposed administrative and legislative solutions, including the creation of an independent immigration court. The four panels covered a wide range of issues, but the topic of reform was the pervasive theme. The "Chronicles of Adjudication" covered both the history and current approach of the U.S. Immigration System. Some of the discussion also focused on cases that never reach adjudication. In the panel entitled From the Prison to the Courtroom, presenter Chris Nugent pointed out that more than 350 facilities, the majority of which are prisons in remote locations, hold over 300,000 detainees on an annual basis, which resulted in over 282,000 people last year being deported from the U.S. Click the link above for a recording and slideshow of the symposium.
"U.S. Immigration Law and the Traditional Nuclear Conception of Family: Toward a Functional Definition of Family that Protects Children's Fundamental Human Rights" Columbia Human Rights Law Review, Forthcoming. SHANI KING, University of Florida, Levin College of Law. ABSTRACT: In this Article, the author exposes how Congress, by failing to protect functional families in the context of immigration law, has failed to follow human rights law in a way that is meaningful to children and that honors its own highly valued principles of family preservation. Although the paramount purpose of U.S. immigration law is not, admittedly, to protect the integrity of family, Congress does explicitly aim to do so in certain circumstances. But even where Congress aims to further family unity, it fails desperately because U.S. immigration law reflects a legal construction that is grounded in the traditional conception of a nuclear family and excludes what the author calls “functional” families: formations which may not satisfy this narrow conception, but satisfy the caretaking needs of children. By exploring current statutes and recent cases in the areas of family-based immigration, cancellation of removal based on family, and the Immigration and Nationality Act’s refugee provisions, the author illustrates that U.S. immigration law fails to recognize functional families and thereby ignores a child’s right to family as provided for by international law. The author also engages in a comprehensive exploration of the Convention on the Rights of the Child and its interpretation, with an eye towards the historical evolution of the definition of family in relevant international instruments, while comprehensively exploring the extension of rights and protections to functional families under international human rights instruments in Europe and the Americas.
"Economic Harm as a Basis for Refugee Status and the Application of Human Rights Law to the Interpretation of Economic Persecution" CRITICAL ISSUES IN INTERNATIONAL REFUGEE LAW: STRATEGIES TOWARD INTERPRETIVE HARMONY, J. Simeon, ed., Cambridge University Press, November 2010 KATE JASTRAM, University of California, Berkeley School of Law. ABSTRACT: The 1951 Refugee Convention is so strongly linked in people’s minds to the protection of civil and political rights that refugee status is often referred to as “political asylum.” Yet claims to refugee status based on economic forms of persecution and on persecution for reasons of economic status have long been recognized as falling within the Convention definition. Although refugee judges routinely assess such claims, consensus remains elusive on the extent to which the Convention properly encompasses violations of economic, social or cultural rights. This chapter provides an overview of the standards governing economic persecution claims in order to assess arguments for a more restrictive approach based on the limitations of the Refugee Convention and for a more expansive approach based on developments in socio-economic rights law. It outlines the two tests used to assess economic forms of persecution and surveys their application in recent cases decided in Australia, Canada, New Zealand, the United Kingdom, and the United States. It concludes that notwithstanding the formal difference in standards, in practice most cases are decided by reference to the more stringent of the two tests and queries whether this is an appropriate reading of the Convention. It then critiques two contrasting perspectives on the place of economic claims under the Convention, questioning the wisdom of importing restrictive policy considerations so blatantly into definitional issues, while also suggesting a number of reasons that an economic rights framework may prove particularly challenging for refugee judges. The chapter concludes that the jurisprudential value of a human rights framework for economic persecution claims has yet to be demonstrated.
"'An "Alien" by the Barest of Threads' - The Legality of the Deportation of Long-Term Residents from Australia" Melbourne Univeristy Law Review, Vol. 33, No. 2, 2009 U of Melbourne Legal Studies Research Paper No. 455 MICHELLE FOSTER, Melbourne Law School. ABSTRACT: The banishment of long-term permanent residents from Australia following criminal conviction is a controversial practice, yet one that has been increasingly employed by the Australian government in recent years. This article assesses the legality of this practice both in terms of domestic and international law. The article first considers the history of both constitutional doctrine and legislative developments in this area, explaining how it is that the Commonwealth can lawfully engage in the deportation of Australian residents who are citizens but for ‘the barest of technicalities’. In the latter half of the article, the analysis turns to consider the international law context to this issue, with particular focus on the extent to which the advent of international human rights law has curtailed states’ plenary power in this arena. The article concludes that the deportation of long-term residents implicates a number of Australia’s key international obligations and thus makes recommendations for urgent reform of the Migration Act 1958 (Cth).
"Regulating Immigration at the State Level: A Focus on Employment" Albany Government Law Review, Vol. 3, No. 1, pp. 218-240, 2010 CAREEN SHANNON, Benjamin N. Cardozo School of Law. ABSTRACT: In light of the failure of comprehensive immigration reform at the federal level in recent years and in the face of increasing concern about the impact of illegal immigration on local communities, many state, county, and local lawmakers have enacted their own laws and ordinances aimed at the undocumented population and the entities that employ them. Some laws address the employment of undocumented workers by requiring employers to utilize the federal government's Web-based "E-Verify" employment eligibility verification system to verify the work status of new hires. Others prohibit employers from hiring unauthorized workers and punish noncompliance with the denial of business licenses or contracts for work with a state, county, or municipality. Of course, it is already a violation of federal law to employ undocumented non-citizens, so any penalties for these violations are in addition to penalties already set out under federal law. These state laws raise troubling preemption issues that will only be resolved once the Supreme Court weighs in. Notwithstanding the Obama Administration’s avowed intention to enact legislation to usher in comprehensive immigration reform, there is no sign that the trend toward increased state and local immigration legislation will abate so long as there is a perception that major voids remain in the federal strategy to address illegal immigration. Focusing on employment -- the major magnet attracting undocumented immigrants across our borders -- this article provides an overview of existing state laws that seek to deter the employment of unauthorized immigrant workers and discusses the current status of federal preemption of such laws. These developments must be viewed in the context of the current federal regulatory scheme and federal worksite enforcement trends, as well as the larger history of federal authority over immigration.
"Speaking Across Borders: The Limits and Potential of Transnational Dialogue on Refugee Law in Ireland" Transnational Judicial Dialogue in Refugee Law, Guy Goodwin-Gill, Helene Lambert, eds., Cambridge University Press: 2010 SIOBHAN MULLALLY, University College Cork. ABSTRACT: Refugee Law in Ireland has developed rapidly over the last decade. This chapter highlights the extent to which lawyers, judges and policy-makers at the forefront of developing Irish law in this field have benefited from the greater availability of comparative and international law in recent years. As the cases explored in this chapter highlight, refugee law in Ireland is marked by significant transnational judicial dialogue. The adoption of the ECHR Act 2003 has further expanded the scope of this dialogue allowing for increasing reference to the practice of the Strasbourg Court and the UK Courts in matters of fundamental rights. However, it is also clear that the scope of this dialogue, and its potential to contribute to a European consensus on key concepts of refugee law, is limited. Constraining further harmonization of refugee law across EU member states is a common law / civil law divide that has limited the scope of transnational judicial dialogue in Ireland, and in other Member States. This is further compounded by a strict dualist approach to international law adopted by Irish courts. This chapter explores a series of rational and cultural factors that underpin the nature of judicial dialogue on refugee law in Ireland, drawing on selected cases from the superior courts and the published decisions of the Refugee Appeals Tribunal.
"Immigration as Invasion: Sovereignty, Security, and the Origins of the Federal Immigration Power" Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 45, No. 1, pp. 1-56, Winter 2010 MATTHEW J. LINDSAY, University of Baltimore - School of Law. ABSTRACT: This Article offers a new interpretation of the modern federal immigration power. At the end of the nineteenth century, the Supreme Court and Congress fundamentally transformed the federal government’s authority to regulate immigration, from a species of commercial regulation firmly grounded in Congress’ commerce authority, into a power that was unmoored from the Constitution, derived from the nation’s “inherent sovereignty,” and subject to extraordinary judicial deference. This framework, which is commonly referred to as the “plenary power doctrine,” has stood for more than a century as an anomaly within American public law. The principal legal and rhetorical rationale for the plenary power doctrine was and remains the supposition that the regulation of immigration is always inherently related to the conduct of foreign affairs, and, especially, to national security. By situating this radical yet extremely durable doctrinal transformation within its appropriate intellectual and political context, this Article seeks to denaturalize the “national security rationale” for immigration exceptionalism. It argues that the plenary power doctrine was borne of an urgent sense of national peril, the basic terms of which most contemporary policymakers, judges, and scholars would emphatically reject. Although the doctrine made its judicial debut in the Chinese Exclusion Case, its historical origins in fact lie largely beyond Chinese exclusion in a much broader contemporaneous critique of (mostly European) immigration. The late nineteenth-century architects of the plenary power doctrine believed that the unchecked immigration of economically degraded, politically inassimilable, and racially unfit immigrants had created a virtual state of national emergency. In response, the Court fashioned an immigration power adapted not to the regulation of labor, or economic dependency, or crime - issues that, then as now, characterize most immigration lawmaking - but rather to the defense of the nation against foreign aggression. Although the immigrants upon whom this power was exercised were citizens of ostensibly “friendly” nations, policymakers and judges re-imagined them as enemy aliens. Through this process, the Court in effect invented the “immigrant” as a distinct, and distinctly consequential, legal construct.
"Crafting an Amnesty with Traditional Tools: Registration and Cancellation" Harvard Journal on Legislation, Vol. 47, No. 1, pp. 175-208, 2010 RICHARD A. BOSWELL, University of California, Hastings College of the Law. ABSTRACT: Immigration amnesty while widely believed to be an anomaly has strong historical precedent, and is found in various provisions of the current immigration law. Large numbers of undocumented persons are currently residing in the United States and amnesty is one way of bringing these people out from under the shadows. This article argues that in order for an amnesty to be effective that it must be both uncomplicated and broad. The article argues further that a careful updating of registry and cancellation of removal, two traditional tools found in U.S. immigration laws offer the best possibility for a successful amnesty program.
"Forced Marriage as a Harm in Domestic and International Law" Modern Law Review, Vol. 73, pp. 57-88, 2010 CATHERINE DAUVERGNE, University of British Columbia - Faculty of Law. ABSTRACT: JENNI MILLBANK, University of Technology, Sydney - Faculty of Law Email: email@example.com This article reports on our analysis of 120 refugee cases from Australia, Canada, and Britain where an actual or threatened forced marriage was part of the claim for protection. We found that forced marriage was rarely considered by refugee decision makers to be a harm in and of itself. This finding contributes to understanding how gender and sexuality are analysed within refugee law, because the harm of forced marriage is experienced differently by lesbians, gay men and heterosexual women. We contrast our findings in the refugee case law with domestic initiatives in Europe aimed at protecting nationals from forced marriages both within Europe and elsewhere. We pay particular attention to British initiatives because they are in many ways the most far-reaching and innovative, and thus the contrast with the response of British refugee law is all the more stark.
"Will highlights a scholar who argues against giving those born in the United States birthright citizenship and characterizes the repeal of a 150 year-old constitutional tenet as "a simple reform." Normally, the idea of stripping those born in America of their right to citizenship has been relegated to the domain of immigration restrictionists and select politicians who try to exploit it for electoral gains. In endorsing this argument, Mr. Will has looked past a whole body of research which examines the dramatic and far- reaching consequences this would have on American society. The arguments about birthright citizenship revolve around the Fourteenth Amendment of the Constitution, which affirms that all persons born in the United States (and subject to its jurisdiction) have a birthright to citizenship. A repeal of the 14th amendment is sometimes raised as a "cure" to our current broken immigration system, when in reality it takes us further away from the larger conversation that must be had about how we can fairly and efficiently revamp American immigration. Proposing solutions to the symptoms, rather than the root causes of a broken system, do nothing to solve our overall immigration problems and create divisions and dysfunctions in our society at all levels.
In the spirit of balance, the Immigration Policy Center is re-releasing our four-part series originally released in September, 2009 on birthright citizenship entitled: Made in America, Myths & Facts about Birthright Citizenship. The series includes:
Defining "American" Birthright Citizenship and the Original Understanding of the 14th Amendment by James C. Ho, a constitutional scholar, examines the historical and legal genesis of birthright citizenship and the unsuccessful legal arguments put forward to abolish it.
Debunking Modern Arguments Against Birthright Citizenship by Elizabeth B. Wydra of the Constitutional Accountability Center who looks at the Reconstructionist context of the Citizenship Clause and shows that Congress clearly meant to provide birthright citizenship to all those born on U.S. soil, regardless of the immigration status of their parents.
Policy Arguments in Favor of Retaining America's Birthright Citizenship Law by Margaret D. Stock, an immigration attorney who provides very practical reasons to avoid tampering with birthright citizenship. The far reaching consequences of such a change would place a burden on all Americans, who would have to document their claim to citizenship. Contrary to the argument of anti-immigrant groups that abolishing birthright citizenship is key to resolving the problem of illegal immigration, Stock recognizes that it would only increase the number of stateless individuals without legal status who reside within the United States.
A New Nativism: Anti-Immigration Politics and the Fourteenth Amendment by Eric Ward of the Center for New Community who provides an African American perspective on birthright citizenship and the 14th Amendment, which was passed in the aftermath of the Civil War in response to continued discrimination against African Americans. Ward also examines the motives of the groups at the forefront of current efforts to abolish birthright citizenship and demonstrates their deeply rooted anti-immigrant beliefs and ties to nativist and racist traditions."
NEW California Poll
The latest telephone poll taken by the California Governor's office asked whether people who live in California think illegal immigration Is a serious problem:
29% responded, "Yes, it is a serious problem."
71% responded, "No es una problema seriosa."
Monday, March 29, 2010
From the National Network for Immigrant and Refugee Rights:
Thanks to everyone who supported the letter to President Obama and DHS Secretary Napolitano, asking that they suspend enforcement activities to encourage immigrant participation in Census 2010. With Census Day less than a week away, on April 1, there has been no commitment from the Administration to take any such steps.
The message from the DHS has been that they will "not interfere" with the Census, but there has been no mention of suspending enforcement actions as during the past two census counts in 2000 and 1990. Instead, a statement from Immigration and Customs Enforcement (ICE) states that the agency "fully supports an accurate count of the U.S. population" and would prioritize enforcing laws "on those dangerous criminal aliens who present the greatest risk to the security of our communities..." The NNIRR letter to suspend enforcement for the 2010 Census, signed by more than 200 organizations, identified numerous programs that supposedly target "criminal aliens" and which have been responsible for the round-up, arrest and deportations of hundreds of thousands of immigrant men, women and children on immigration violations.
In the meantime, we encourage all of you to help mobilize immigrant community participation in the Census. Again, April 1 is national Census Day and is the target date for the return of census surveys, which most households received this past week. If households do not return their census surveys, they will receive a follow-up visit from a census outreach worker. For immigrant households concerned about such visits, they should return their forms now.
In a final effort to boost mail-back rates in hard-to-count communities, the Census Bureau has just announced its "March to the Mailbox" campaign on April 10. Households will be reminded to "march to the mailbox" to return their census forms before personal visits to unresponsive households start on May 1.
There are many ways for people to get assistance in completing their forms; many community organizations are working with the census initiative, have received briefings and trainings. There are census assistance centers now open in many neighborhoods throughout the country. There are toll free lines to call to receive copies of the census in one of eight languages, or to speak to someone in one of more than 80 languages for assistance.
Information sheets and resources can be accessed from our website at www.nnirr.org.