Thursday, May 31, 2012

American Immigration Council Reveals Government’s Interference with Noncitizens’ Access to Legal Counsel

Today, the American Immigration Council’s Legal Action Center released a report and filed a Freedom of Information Act (FOIA) lawsuit on the pressing issue of noncitizens’ access to counsel. Reports from across the country indicate that the Department of Homeland Security’s (DHS) immigration agencies—U.S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP)—often interfere with noncitizens’ access to counsel in benefits interviews, interrogations, and other types of administrative proceedings outside of immigration court. Depending on the context, immigration officers completely bar attorney participation, impose unwarranted restrictions on access to legal counsel, or strongly discourage noncitizens from seeking legal representation at their own expense.

A joint report by the Legal Action Center and Penn State Law’s Center for Immigrants’ Rights (see here for the Penn State Press release), Behind Closed Doors: An Overview of DHS Restrictions on Access to Counsel, describes restrictions on access to legal representation before DHS, provides a legal landscape, and offers recommendations designed to combat these harmful practices. It also addresses recent changes to USCIS’s guidance that are intended to expand access to legal representation.

Also today, in collaboration with Dorsey & Whitney LLP, the Legal Action Center filed a lawsuit against ICE and DHS to compel the release of records relating to noncitizens’ access to counsel before ICE. This is the third of three FOIA lawsuits filed by the LAC seeking records from DHS’s immigration agencies regarding their policies on access to counsel in DHS proceedings.

To date, ICE has failed to turn over any documents. Initially, ICE informed the LAC that it had conducted a search for records, but was “unable to locate or identify any responsive records.” ICE has since conceded that its search was inadequate and renewed its search for documents, but no documents have been forthcoming.

KJ

May 31, 2012 in Current Affairs | Permalink | TrackBack (0)

A Language and Education Profile of Immigrants in the United States

Immigrants' human capital, whether acquired abroad or developed in the United States, is one of the primary determinants of successful economic and social integration in a new country. As shown by our newly compiled US data on educational attainment and English skills, this transition for immigrants and the communities in which they live is marked by both opportunity and barriers. This month's Data Hub newsletter analyzes the Census Bureau's 2010 American Community Survey (ACS) to highlight key national and state-level statistics on immigrants' education and language skills (last month we showcased a demographic and social profile of US immigrants). As with our other ACS data tools, you can examine more by visiting our "Language and Education" profiles by state (or for the entire United States), which include statistics on levels of education, rates of English proficiency, and linguistic isolation among immigrants. Among the interesting facts you will find there:

* Immigrants are concentrated at the high and low ends of the education continuum: Nationally, 27 percent of immigrant adults had a bachelor's degree or higher (compared to 28 percent of the native born). In contrast, the share of immigrant adults with less than a high school diploma was 32 percent (compared to 11 percent for the US born). Immigrants who became naturalized US citizens were much more likely to have a college degree than non-US citizens (33 percent versus 22 percent).

* Some states benefit (or are poised to benefit) more than others from having a highly educated immigrant workforce: College-educated immigrants accounted for more than 40 percent of all immigrant adults in the District of Columbia (50 percent), West Virginia (42 percent), and Vermont and Maryland (41 percent each) compared to 27 percent in the United States overall. At the other end of the spectrum, nearly half of foreign-born adults in New Mexico (49 percent) and Idaho (48 percent) lacked a high school diploma.

* High demand continues for English language instruction: In 2010, 52 percent of the 39.7 million immigrants in the United States were Limited English Proficient (LEP) population — defined as persons age 5 and older who reported speaking English "not at all," "not well," or "well." Non-US citizen immigrants were much more likely to be LEP than naturalized immigrants (62 percent versus 39 percent). Nearly two-thirds of the 20.5 million LEP immigrants in 2010 resided in the five so-called "traditional" immigration states: California (29 percent), Texas (12 percent), New York (10 percent), Florida (9 percent), and Illinois (5 percent).

* New immigrant-destination states face rapid growth in LEP populations: Between 2000 and 2010, the immigrant LEP population more than doubled in Alabama (grew from 36,000 to 89,000, or by 149 percent), South Carolina (grew from 49,000 to 108,000, or by 122 percent), and Tennessee (grew from 71,000 to 145,000, or by 104 percent). In comparison, the size of the national LEP immigrant population increased by 31 percent during the same period (from 15.7 million to 20.5 million).

KJ

May 31, 2012 in Current Affairs | Permalink | TrackBack (0)

DREAMEers Never Quit; Immigration Law Profs Weigh In

Julia Preston on the New York Times reports on the continuing activism of undocuymented students who claim that the Obama administration has not done enough to diminish the threat of deportations they face despite repeated promises.  The campaign is led by the United We Dream Network.

This week, student leaders presented the White House with a letter signed by more than 90 immigration law professors who argued that the president has “clear executive authority” to halt deportations of undocumented students who might benefit from the DREAM Act. The professors pointed to three specific measures the president could take under existing laws to defer deportations. 

Hiroshi%20motomura

The law professors’ letter is response to administration officials who have said that the President lacks the authority to provide relief to large groups of noncitizens. One measure they cite was used by President Jimmy Carter to admit thousands of Cubans to the United States in 1980 in the Mariel boatlift. Professor Hiroshi Motomura (UCLA) was an author of the letter. Download ExecutiveAuthorityForDREAMRelief28May2012withSignatures

KJ

May 31, 2012 in Current Affairs | Permalink | TrackBack (0)

Immigration Report of the Day: Potential Impact of Changes in Immigration Policy on U.S. Agriculture and the Market for Hired Farm Labor: A Simulation Analysis by the U.S. Department of Agriculture

The Potential Impact of Changes in Immigration Policy on U.S. Agriculture and the Market for Hired Farm Labor: A Simulation, U.S. Department of Agriculture.

ABSTRACT: Large shifts in the supply of foreign-born, hired farm labor resulting from substantial changes in U.S. immigration laws or policies could have significant economic implications. A computable general equilibrium (CGE) model of the U.S. economy is used to evaluate how changes in the supply of foreign-born labor might affect all sectors of the economy, including agriculture. Two scenarios are considered: an increase in the number of temporary nonimmigrant, foreign-born farmworkers, such as those admitted under the H-2A Temporary Agricultural Program, and a decrease in the number of unauthorized workers in all sectors of the economy. Longrun economic outcomes for agricultural output and exports, wages and employment levels, and national income accruing to U.S.-born and foreign-born, permanent resident workers in these two scenarios are compared with a base forecast reflecting current immigration laws and policies.

Here are the conclusions:

The expanded employment of temporary nonimmigrant agricultural workers would lead to a longrun relative increase in agricultural output and exports. The increases are generally larger in labor-intensive sectors, such as fruits, tree nuts, vegetables, and nursery products. By year 15 of the increased farm labor supply scenario, these four sectors experience a 1.1- to 2.0-percent increase in output and a 1.7- to 3.2-percent increase in exports, relative to the base forecast. Less labor-intensive sectors, such as grains, oilseeds, and livestock production, tend to have smaller increases, ranging from 0.1 to 1.5 percent for output and from 0.2 to 2.6 percent for exports.

By contrast, a large reduction in the number of unauthorized workers in all sectors of the U.S. economy would lead to a long run reduction in output and exports in both agriculture and the broader economy, relative to forecasted levels with no policy-induced change in unauthorized labor supply.

Decreasing the size of the unauthorized labor force would reduce the aggregate level of economic production and slightly lower the income that accrues to complementary, U.S.-owned factors of production, such as capital and skilled labor. The lost income would be only partially offset by higher real wages for U.S.-born and foreign-born, permanent resident workers employed as hired farm laborers or in other lower paying occupations where unauthorized workers were formerly more prevalent. In the long run, overall gross national product accruing to the U.S.-born and to foreignborn, permanent residents would fall by about 1 percent, compared with the base forecast.

KJ

May 31, 2012 in Current Affairs | Permalink | TrackBack (0)

DREAMers Press Obama to Act on their Behalf

Julia Preston writes in the NY Times:

Young [undocumented] immigrants, saying President Obama has done little to diminish the threat of deportations they face despite repeated promises, have started a campaign to press him to use executive powers to allow them to remain legally in the country.

The campaign is led by the United We Dream Network, the largest organization of young immigrants here illegally who would be eligible for legal status under a proposal in Congress known as the Dream Act.

The young people are among the most visible activists in a growing immigrant movement. Their push to focus pressure on the White House reflects deep frustration with Congress for its lack of action on the legislation and with the administration for continuing to deport illegal immigrant students, although Mr. Obama says he supports them.

This week student leaders presented White House officials with a letter signed by more than 90 immigration law professors who argued that the president has “clear executive authority” to halt deportations of illegal immigrants who might benefit from the student legislation. The professors, from universities across the country, pointed to several measures the president could take under existing laws to defer deportations and permit young immigrants to stay temporarily.

On May 17 the students held small-scale actions to publicize their demands in 19 locations around the country, including at the Obama re-election campaign offices in Miami. Gaby Pacheco, a leader of the student network, said Wednesday that they were preparing larger protests for mid-June if the White House did not respond.

“They say all the time that Dreamers shouldn’t be deported,” Ms. Pacheco said, referring to the young immigrants. “We’ve heard a lot of talk, but we have not seen action.”

The students’ escalating actions could be a problem for Mr. Obama, who is counting on strong support from Latino voters to win again in several states that supported him in 2008, particularly Colorado, Florida, Nevada and New Mexico. Polls show very high support among Latinos for some version of the Dream Act,  including  91 percent in the 2011 National Survey of Latinos from the Pew Hispanic Center. Read more...

bh

May 31, 2012 | Permalink | TrackBack (0)

Wednesday, May 30, 2012

Immigration Project Resource Attorney Position Available

Located in Seattle, Washington, the Washington Defender Association (WDA) is a nonprofit membership association comprised of public defender agencies, indigent defenders, and those who are committed to seeking improvements in indigent defense services. WDA’s work focuses on providing training, resources and individual case assistance to public defenders throughout the state of Washington to ensure effective assistance of counsel and the highest quality of representation to their clients. WDA also engages in state and national advocacy to promote reform within the criminal and civil justice systems and defend the rights of accused persons.

In 1999, WDA established the WDA Immigration Project (WDAIP). WDAIP’s work focuses specifically on addressing the immigration consequences facing noncitizen defendants. WDAIP strives to make Padilla v. Kentucky's guarantee of effective assistance a reality for noncitizen defendants through education resources, individual case assistance, and state and national policy advocacy.

WDAIP is staffed by Directing Attorney, Ann Benson, and Immigration Specialist, Jonathan Moore. For more information on WDA and WDAIP please see www.defensenet.org.

For more information on this position, click here.

KJ

May 30, 2012 in Current Affairs | Permalink | TrackBack (0)

Immigration Article of the Day: Arguing for Amnesty by Linda Bosniak

"Arguing for Amnesty" by LINDA S. BOSNIAK, Rutgers University School of Law, Camden.

ABSTRACT: This commentary addresses scholars and activists in liberal national states who advocate on behalf of undocumented immigrants, and offers some reflections on some of the intellectual and political challenges we encounter. I will suggest that the nature of our standard arguments on behalf of immigrants can sometimes give too much ground to current social conditions, and that we may – in our efforts to remain immediately policy-relevant – relinquish the opportunity to develop more fundamental social criticism of existing immigration relations.

KJ

May 30, 2012 in Current Affairs | Permalink | TrackBack (0)

Tuesday, May 29, 2012

Professor Rose Villazor to Move to UC Davis

Rose
I am pleased to announce that Professor Rose Cuison Villazor, currently at Hofstra, is moving to UC Davis School of Law.  Professor Villazor teaches and writes in the areas of property law, immigration law, race, and citizenship. She is also co-editor with Professor Kevin Noble Maillard of a book titled Loving v. Virginia in a Post-Racial World: Rethinking Race, Sex, and Marriage, published by Cambridge University Press in 2012.

Professor Villazor received the 2011 Derrick A. Bell Award, which is given by the Association of American Law Schools (AALS) Minority Groups Section to a junior faculty member who, through activism, mentoring, teaching and scholarship, has made an extraordinary contribution to legal education, the legal system, or social justice.

KJ

May 29, 2012 in Current Affairs | Permalink | TrackBack (0)

From the Bookshelves: A Midwestern Mosaic Immigration and Political Socialization in Rural America by J. Celeste Lay

Midwest mosaic

A Midwestern Mosaic Immigration and Political Socialization in Rural America by J. Celeste Lay

ABSTRACT:  Drawn by low-skilled work and the safety and security of rural life, increasing numbers of families from Latin America and Southeast Asia have migrated to the American heartland. In the path-breaking book A Midwestern Mosaic, J. Celeste Lay examines the effects of political socialization on native white youth growing up in small towns. Lay studies five Iowa towns to investigate how the political attitudes and inclinations of native adolescents change as a result of rapid ethnic diversification. Using surveys and interviews, she discovers that native adolescents adapt very well to foreign-born citizens, and that over time, gaps diminish between diverse populations and youth in all-white/Anglo towns in regard to tolerance, political knowledge, efficacy, and school participation. A Midwestern Mosaic looks at the next generation to show how exposure to ethnic and cultural diversity during formative years can shape political behavior and will influence politics in the future.

May 29, 2012 in Current Affairs | Permalink | TrackBack (0)

Immigration Law Teachers Workshop 2012

The bi-annual Immigration Law Teachers Workshop starts on Thursday at Hofstra law school.  Here is the schedule.  Download Immigration_workshop_schedule_draft -- 05-28-12.  This conference is a highlight of the immigration law teachers' year.

KJ

May 29, 2012 | Permalink | TrackBack (0)

They Keep Coming: Border Enforcement Along the U.S./Canada Border

William Yardley of the N.Y. Times has this interesting story about U.S. border enforcement and Mexican immigrants not in the Southwest but the Pacific Northwest.

I was reminded of the wide expanse of Mexican migration to the United States thgis weekend on a trip to the Sierras and visited a great taquería, Tacos Jalisco, in Truckee, near Lake Tahoe.

KJ

May 29, 2012 in Current Affairs | Permalink | TrackBack (0)

SEEKING A JUDICIAL STAY OF REMOVAL IN THE COURT OF APPEALS

Here is a practice advisory entitled: “Seeking a Judicial Stay of Removal in the Court of Appeals: Standard, Implications of ICE’s Return Policy and the OSG’s Misrepresentation to the Supreme Court, and Sample Stay Motion.” This advisory:

 Provides background information regarding stay requests, including when an immigration agency order becomes final and how to file a stay motion.

 Discusses the legal standard for stay motions as set forth by the Supreme Court in Nken v. Holder.

 Addresses the implications on stay motions of ICE’s return policy and of the Office of the Solicitor General’s (OSG) misrepresentations to the Supreme Court regarding the government’s ability to return successful litigants.

 Includes a sample stay motion containing legal arguments for litigants in stay litigation and a template declaration in support of a stay motion.

 Includes an appendix detailing local rules and procedures of circuit courts.

This advisory was written by the National Immigration Project/NLG, Boston College Post Deportation Human Rights Project, Immigrant Rights Clinic at NYU School of Law, and the American Immigration Council.

KJ

May 29, 2012 in Current Affairs | Permalink | TrackBack (0)

Immigration Article of the Day: Open Borders with Migration Taxes Are the Optimal Policy by Nathanael Smith

Open Borders with Migration Taxes Are the Optimal Policy by Nathanael Smith Fresno Pacific University; George Mason University.

Abstract: For some reason, economists are less willing to advocate open migration than free trade, even though the traditional free trade models, such as Ricardian comparative advantage and Heckscher-Ohlin, cross-apply to migration. In fact, however, the case for open migration is stronger than the case for free trade, because it is possible to tax foreign-born beneficiaries of open migration policies, through migration taxes. It is here proven that a policy of open borders with migration taxes is Pareto-superior to the alternative of closed borders (or discretionary migration control). Political norms of local inequality aversion seem to prevent the adoption, or even consideration, of such a policy, and the enormous gains in human welfare that would result from it. Some proposals, including a World Migration Organization and passport-free charter cities, are proposed as steps towards a world of open migration.

KJ

May 29, 2012 in Current Affairs | Permalink | TrackBack (0)

Monday, May 28, 2012

Happy Memorial Day!

Let's celebrate all of the American vetererans, including immigrants, who have lost their lives defending our liberty.

KJ

May 28, 2012 in Current Affairs | Permalink | TrackBack (0)

Friday, May 25, 2012

Guest Post: Kristie Lewis, Housing discrimination a very real problem for immigrants

The search for fair housing is among the many challenges facing immigrants in the United States. Denying someone housing on the basis of their immigration status or simply because they appear “foreign” is discriminatory in the highest degree, but that doesn’t mean that the problem isn’t widespread throughout the country.

The nonprofit consumer advocacy organization Consumer Action recently reported that 70% of community groups in the US view housing discrimination as a very real and serious threat to minority groups, particularly among immigrants. The report states that immigrants are among the most disenfranchised of consumer groups who seek adequate housing, whether through owning or renting property. The information from the report was gathered from various community based organization throughout the country who work with the most underserved groups of people, including immigrants.

An uphill battle for immigrants seeking housing

The Consumer Action report goes on to outline the extent of the real and damaging discrimination facing immigrants, disabled peoples, and other marginalized consumers as reported by over 500 community based organizations. Nearly half of the community based organizations contacted for the report stated that housing discrimination was a very serious problem among immigrants, who struggle to address discriminatory actions taken against them due to crippling lingual, cultural, or social barriers. Moreover, many community based organizations voiced their frustrations in adequately addressing housing discrimination because the offense can be so difficult to identify. Moreover, some immigrant groups may not fully understand (or have access to) awareness initiatives promulgated by community based organizations.

The Consumer Action report had a few words of wisdom to offer those who are likely targets of housing discrimination. They warned renters to look out for racist or discriminatory ads (such as those explicitly asking or prohibiting a certain ethnicity to apply. They also warned that discriminatory landlords might try to “price out” immigrant applicants by raising the rent to unusually high rates, or they might try to convince an immigrant tenant to move out in hopes of raising the property value as an “immigrant-free” property. The problems for immigrant home buyers are equally daunting, as sellers might try to avoid selling to an immigrant by any means necessary in order to prevent them from purchasing a home.

Housing discrimination fought against in New Jersey

There is one recent story out of Plainfield, New Jersey that should uplift the spirits of those fighting against housing discrimination. Juan Cartagena writes about his case against a tenant of an apartment complex in Plainfield who sued the landlord because he suspected the landlord to be knowingly renting units to illegal immigrants. The tenant argued that landlords should be responsible for investigating the authenticity of a tenants immigration documents in order to prove that they are in the country legally. The defense argued that doing so would give landlords the same power as an immigration officer.

According to Mr. Cartagena’s article, the case, Bolmer vs. Connelly, ended when Judge Julio Fuentes of the U.S. Court of Appeals ruled in favor of the landlord, stating that renting property to a tenant is not something that could be regarded in such extreme and criminal terms. To be sure, this was a compelling case that showcases the complexities of immigration and discrimination within the context of housing.

Conclusion

In closing, I just want to emphasize the real that housing discrimination is a severely underreported problem for immigrants in America. Consumer Action was able to affirm that statement by surveying over 500 community based organizations, and it’s something that needs to be addressed with real and earnest legislative efforts. The immigrant community is too underserved in this country; taking steps to prevent discriminatory practices among home rentals and purchases will go a long way to protect them from unnecessary harm.

Byline: This is a guest post by Kristie Lewis from construction management degree. You can reach her at: Kristie.Lewis81 @ gmail.Com.

May 25, 2012 in Current Affairs | Permalink | TrackBack (0)

Guest Post: Kristie Lewis, Housing discrimination a very real problem for immigrants

The search for fair housing is among the many challenges facing immigrants in the United States. Denying someone housing on the basis of their immigration status or simply because they appear “foreign” is discriminatory in the highest degree, but that doesn’t mean that the problem isn’t widespread throughout the country.

The nonprofit consumer advocacy organization Consumer Action recently reported that 70% of community groups in the US view housing discrimination as a very real and serious threat to minority groups, particularly among immigrants. The report states that immigrants are among the most disenfranchised of consumer groups who seek adequate housing, whether through owning or renting property. The information from the report was gathered from various community based organization throughout the country who work with the most underserved groups of people, including immigrants.

An uphill battle for immigrants seeking housing

The Consumer Action report goes on to outline the extent of the real and damaging discrimination facing immigrants, disabled peoples, and other marginalized consumers as reported by over 500 community based organizations. Nearly half of the community based organizations contacted for the report stated that housing discrimination was a very serious problem among immigrants, who struggle to address discriminatory actions taken against them due to crippling lingual, cultural, or social barriers. Moreover, many community based organizations voiced their frustrations in adequately addressing housing discrimination because the offense can be so difficult to identify. Moreover, some immigrant groups may not fully understand (or have access to) awareness initiatives promulgated by community based organizations.

The Consumer Action report had a few words of wisdom to offer those who are likely targets of housing discrimination. They warned renters to look out for racist or discriminatory ads (such as those explicitly asking or prohibiting a certain ethnicity to apply. They also warned that discriminatory landlords might try to “price out” immigrant applicants by raising the rent to unusually high rates, or they might try to convince an immigrant tenant to move out in hopes of raising the property value as an “immigrant-free” property. The problems for immigrant home buyers are equally daunting, as sellers might try to avoid selling to an immigrant by any means necessary in order to prevent them from purchasing a home.

Housing discrimination fought against in New Jersey

There is one recent story out of Plainfield, New Jersey that should uplift the spirits of those fighting against housing discrimination. Juan Cartagena writes about his case against a tenant of an apartment complex in Plainfield who sued the landlord because he suspected the landlord to be knowingly renting units to illegal immigrants. The tenant argued that landlords should be responsible for investigating the authenticity of a tenants immigration documents in order to prove that they are in the country legally. The defense argued that doing so would give landlords the same power as an immigration officer.

According to Mr. Cartagena’s article, the case, Bolmer vs. Connelly, ended when Judge Julio Fuentes of the U.S. Court of Appeals ruled in favor of the landlord, stating that renting property to a tenant is not something that could be regarded in such extreme and criminal terms. To be sure, this was a compelling case that showcases the complexities of immigration and discrimination within the context of housing.

Conclusion

In closing, I just want to emphasize the real that housing discrimination is a severely underreported problem for immigrants in America. Consumer Action was able to affirm that statement by surveying over 500 community based organizations, and it’s something that needs to be addressed with real and earnest legislative efforts. The immigrant community is too underserved in this country; taking steps to prevent discriminatory practices among home rentals and purchases will go a long way to protect them from unnecessary harm.

Byline: This is a guest post by Kristie Lewis from construction management degree. You can reach her at: Kristie.Lewis81 @ gmail.Com.

May 25, 2012 in Current Affairs | Permalink | TrackBack (0)

Wednesday, May 23, 2012

From Fingerprints to DNA: Biometric Data Collection in U.S. Immigrant Communities and Beyond

Today, the Immigration Policy Center (IPC) and the Electronic Frontier Foundation (EFF) release From Fingerprints to DNA: Biometric Data Collection in U.S. Immigrant Communities and Beyond by Jennifer Lynch. The paper outlines the current state of U.S. government collection of biometric information and the problems that could arise from these growing databases of records. It also points out how immigrant communities are immediately affected by the way this data is collected, stored, and shared. There is a growing push to link biometric collection with immigration enforcement. The U.S. Department of Homeland Security (DHS) takes approximately 300,000 fingerprints per day from non-U.S. citizens crossing the border into the United States, and it collects biometrics from noncitizens applying for immigration benefits and from immigrants who have been detained. In addition, state and local law enforcement officers regularly collect fingerprints and DNA, as well as face prints and even iris scans. All of these government databases are growing and increasingly interconnected. For example, the Secure Communities program takes the fingerprints of people booked into local jails, matches them to prints contained in large federal immigration databases, and then uses this information to deport people.

KJ

May 23, 2012 in Current Affairs | Permalink | TrackBack (0)

The Supreme Court’s Immigration Decisions in the 2011 Term (Sans Arizona v. United States)

Supeme court

So far, the Supreme Court has issued four immigration decisions this Term. There will likely be five in total. Court watchers eagerly await the Court to decide Arizona v. United States, which has received the most attention by far of the Court's immigration decisions from the 2011 Term. Much more will be said, I am sure, when the Court decides that case, which could well have a dramatic impact on the future of the many immigration enforcement laws passed in recent years by state legislatures.

The Court’s four other immigration decisions, however, offer critically important insights about how the Court approaches more run-of-the-mill immigration cases that are the bread-and-butter of immigration law practice. In total, the decisions are firmly in the mainstream of constitutional, statutory, and administrative law jurisprudence.

The unexceptional nature of the Court's four immigration decisions may be surprising to students of immigration law who have been well-schooled in the “plenary power doctrine,” which historically has immunized substantive immigration law provisions from meaningful judicial review, and in fact represents an important deviation from mainstream constitutional law.

In a rather unexceptional – if not workmanlike -- fashion, the Court in the four non-Arizona immigration cases decided in the 2011 Term generally treats the review of immigration cases like it treats other the review of other agency actions.

Two of the four decisions were unanimous and written by Justice Elena Kagan, the most junior Justice on the Court. One central lesson of decisions is that the Court will protect immigrants from arbitrary removal decisions of the Board of Immigration Appeals (BIA) and, at the same time, defer to the BIA’s reasonable interpretation of the immigration laws. The Court has followed a relatively consistent pattern in this regard in recent years, with an occasional blockbuster like Arizona v. United States (I admittedly am speculating) and Padilla v. Kentucky.

 

1. Deference to the BIA: Judulang v. Holder

In Judulang v. Holder, the Supreme Court addressed a case in which the U.S. government sought to remove from the United States a lawful permanent resident who had lived here since 1974, based on a 1989 voluntary manslaughter conviction. Former Section 212(c) of the Immigration and Nationality Act provides for a “waiver of excludability” allowing a noncitizen to enter, and resist removal from, the country despite a criminal conviction. The U.S. government sought to remove Joel Judulang from the United States on the ground that he had committed an “aggravated felony” involving a “crime of violence.” The Board of Immigration Appeals (BIA) ruled, and the Ninth Circuit affirmed, that a “crime of violence” was not “comparable” to any ground for exclusion and that Judulang was not eligible for relief.

Judulang argued that the BIA’s interpretation of the relevant statutory provisions was arbitrary and capricious. The Supreme Court agreed. Writing for a unanimous Court, Justice Elena Kagan began the opinion for the Court as follows:

"This case concerns the Board of Immigration Appeals’ . . . policy for deciding when resident aliens may apply to the Attorney General for relief from deportation under a now-repealed provision of the immigration laws. We hold that the BIA’s approach is arbitrary and capricious. The legal background of this case is complex, but the principle guiding our decision is anything but. When an administrative agency sets policy, it must provide a reasoned explanation for its action. That is not a high bar, but it is an unwavering one. Here, the BIA has failed to meet it." (emphasis added).

In reaching that conclusion, the Court applied ordinary administrative law principles. The Court held that the BIA’s ruling “flunked” minimal judicial review. Finding that the BIA’s interpretation of the statute was not reasonable, the Court emphasized that “[w]e must reverse an agency policy when we cannot discern a reason for it. That is the trouble in this case.”

As in Judulang v. Holder, the Supreme Court has in recent years subjected the immigration decisions of the government to the same standards of judicial review as applied to other agency actions. The Court also has applied the same basic principles of statutory interpretation to the immigration laws that it applies to other statutes.

For commentary on Judulang, see here and here.

 

2. Deference to the BIA: Vartelas v. Holder

The issue before the Supreme Court in Vartelas v. Holder was the application of Immigration & Nationality Act § 101(a)(13)(C)(v),which was added by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Under the amended definition of “admission” into the United States, a lawful permanent resident returning from a brief trip outside the country who had been convicted of certain criminal offenses was deemed to be seeking admission into the country. The U.S. government relied on the new statutory provision to deny admission to Vartelas based on conviction for a “crime involving moral turpitude.”

Vartelas would not have been subject to deportation if he had not left the United States. Before 1996, as a lawful permanent resident, he would have been free to take a short trip out of the country.

In an opinion by Justice Ruth Bader Ginsburg, the Supreme Court rejected the BIA’s order that Vartelas be returned to Greece:

"We conclude that the relevant provision of IIRIRA, § 1101(a)(13)(C)(v), attached a new disability (denial of reentry) in respect to past events (Vartelas’ pre-IIRIRA offense, plea, and conviction). Guided by the deeply rooted presumption against retroactive legislation, we hold that §1101(a)(13)(C)(v) does not apply to Vartelas’ conviction. The impact of Vartelas’ brief travel abroad on his permanent resident status is therefore determined not by IIRIRA, but by the legal regime in force at the time of his conviction."

In so holding, the Court applied the “presumption against retroactive legislation” and the general retroactivity rules from Landsgraf v. USI Film Products (1994). The Court found that, in pleading guilty to the criminal charge in 1994, Vartelas “likely relied” on the law as it existed at that time, which allowed him the freedom to take brief trips outside the United States.

In an opinion joined by Justices Thomas and Alito, Justice Scalia dissented. The dissent viewed the activity regulated by the 1996 amendment as reentry into the United States after a trip outside the country. Consequently, the new statutory language was not applied retroztively because Vartelas's readmission to the United States after a trip abroad occurred years after the effective date. Justice Scalia accused the majority of going beyond the statutory language to achieve a fair result.

In sum, the Court found for Vartelas in a narrowly drawn opinion that found that the retroactive application of 1996 amendments to the immigration laws would be unconstitutional. Applying the standard test for the retroactive application of new laws, the Court concluded that Vartelas could not be subject to the 1996 amendment. The Court did not address broader questions, including the constitutional rights of lawful permanent residents.

For further commentary, click here.

 

3. Deference to the BIA: Holder v. Gutierrez and Holder v. Sawyers

In these consolidated cases, the Supreme Court reviewed the question whether the Board of Immigration Appeal’s decision to forbid the imputation of the years of a parent’s residency in the United States to a minor child for the purpose of calculating eligibility for relief from removal. Writing for a unanimous Court, Justice Elena Kagan deferred to the BIA’s construction of the statute.

The Court concluded that the Board’s rejection of imputation of the time of parent’s residence to the child for purposes of eligibility for relief was a permissible construction of the statutory provision (which seemed pretty clear cut to the Court) in question (8 U.S.C. § 1229b(a)). As a reasonable construction of the statute, the agency’s interpretation was entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). The decision has all the trappings of the run-of-the-mill Chevron deference case.

For commentary, click here and here. Professor Jill Family analyzes the decision on SCOTUSblog.

 

4. Deference to the BIA: Kawashima v. Holder

In Kawashima v. Holder, the U.S. Supreme Court, in a majority (6-3) decision written by Justice Clarence Thomas, affirmed the Ninth Circuit's holding that a tax crime was an “aggravated felony” under the U.S. immigration laws subjecting an immigrant to removal. Joined by Justices Breyer and Kagan, Justice Ginsburg dissented.

The issue before the Court was whether that the convictions of Akio and Fusako Kawashima, natives of Japan who had been lawful permanent residents since 1984, for the filing, and aiding and abetting in filing, a false statement on a corporate tax return constituted “aggravated felonies,” thereby making them removable from the United States. Engaging in a straight-forward analysis of the statutory language, the Court concluded that the crimes constituted "aggravated felonies" subjecting them to removal.

At various times, the Supreme Court has applied the “rule of lenity” to interpret ambiguities in a deportation statute in favor of the noncitizen fighting deportation. Justice Thomas and the majority did not seem to see any ambiguities in the removal statute that warranted invocation of the rule of lenity. In contrast, Justice Ginsburg in dissent relied on the rule of lenity as a basis for her interpretation of the statute in favor of the noncitizen.

In Kawashima v. Holder, the Court engaged, as often is the case in immigration cases, in a debate over statutory construction of the complex immigration laws. This is a run-of-the-mill statutory interpretation case. Justice Thomas focuses on the plain meaning of the statute and Justice Ginsburg reads more into the statutory text (and structure of two sub-sections). As with the other decisions discussed in this post, I do not see this immigration case having much of an impact on immigration cases.

For commentary, click here. A recap of the decision on SCOTUSBlog can be found here.

Conclusion

Nearly twenty years ago in Responding to the “Litigation Explosion”: The Plain Meaning of Executive Branch Primacy Over Immigration, 71 North Carolina Law Review 413 (1993), I criticized a series of Supreme Court immigration decisions that applied ordinary principles of statutory construction and administrative law in the review of agency immigration decisions. My claim was that, given the important life and liberty issues at stake in an immigration case, the courts should engage in more exacting judicial review of agency removal decisions.

The Supreme Court obviously has not embraced my suggested approach. Nonetheless, the good news is that the Court is engaging in meaningful review of agency decisions and applying ordinary administrative law principles in that review, not blindly deferring to the Board of Immigration Appeals. In terms of statutory interpretation, the Court is, as in other cases, focusing on the plain meaning of the text of the statute. The immigration attorney should take to heart the Court’s devotion to rigorous statutory construction and expect ordinary – but not excessive – deference to the agency by the courts to the rulings of the BIA.

KJ

May 23, 2012 in Current Affairs | Permalink | TrackBack (0)

Immigration Article of the Day: "Finding the Third State: Internatonal Human Rights Law and State Responsibility for Iraqi Refugees" by FAHAD SIDDIQUI

"Finding the Third State: Internatonal Human Rights Law and State Responsibility for Iraqi Refugees" by FAHAD SIDDIQUI, York University - Osgoode Hall Law School, University of London - School of Oriental and African Studies (SOAS).

ABSTRACT: This paper explores the relative silence of international law scholarship on the question of state responsibility for Iraqis displaced since the invasion of 2003. I argue that that the scope of application provisions of international and regional human rights instruments makes it difficult to ascribe state responsibility to transnational acts that generate refugee flows. Specifically, the establishment by human rights bodies of an “effective control” threshold to determine the extraterritorial obligations of states has created a responsibility gap in relation to refugees produced by international uses of force. As a result, international human rights law effectively imposes liability on the domestic refugee-producing acts of states while immunizing similar refugee-producing acts perpetrated beyond state boundaries.

KJ

May 23, 2012 in Current Affairs | Permalink | TrackBack (0)

Anchor Baby of the Day: Juan Felipe Herrera, California Poet Laureate

 

In March, University of California, Riverside poetry professor Juan Felipe Herrera — known for chronicling the bittersweet lives, travails and contributions of Mexican Americans — was named California Poet Laureate by Gov. Jerry Brown. He is the first Latino poet to hold this post. Born in California, Herrera is the son of migrant farm workers and holds the Tomás Rivera Chair in Creative Writing at UC Riverside. He is the author of more than 20 books, including narratives for children and young adults ("Calling the Doves" and "Upside Down Boy") and a career-spanning anthology, "Half of the World in Light," which won the 2008 National Book Critics Circle Award in poetry. This L.A. Times story tells about Herrera and his popularity in California.

KJ

May 23, 2012 in Current Affairs | Permalink | TrackBack (0)