Sunday, March 31, 2013
It seems as if the nation has been talking about comprehensive reform for decades. The truth is that it has been. Discussion of reform has continued since the draconian 1996 immigration reforms that, among other things, expanded the criminal grounds for removal, expanded detention, and limited juidicial review of immigration decisions.
Talk of reform continues. In the last few days, we heard about a breakthrough with labor, calming objections of the AFL-CIO to easing restrictions on immigrant workers in a reform proposal. On Friday, there was a march on the streets of Los Angeles supporting immigration reform. Rep. Raul Labrador (R-Idaho) has an op/ed today in the Los Angeles Times on a "conservative approach" to immigration reform.
The need for immigration reform is readily apparent and has been for quite some time, with both Presidents Bush and Obama calling for reform. With Congress failing to act, states, with Indiana and Montana laws enjoined in just the past few days, in the last several years have passed increasingly strict immigration enforcement laws. Such laws have created a hostile environment toward Latinos -- U.S. citizens and immigrants alike -- in a number of states, with Arizona and its famous Sheriff Joe Arpaio probably the most well-known.
There are hopeful signs on the horizon, with bipartisan discussion of immigration reform continuing. Still, when a member of Congress in a radio interview uses a slur to refer to migrant Mexican workers, one can only wonder whether we can expect the promised immigration reform to come. Will we just hear just more talk? Or, will we see action?
Saturday, March 30, 2013
Ian Urbina and Catherine Rentz of the New York Times in Immigrant Detainees and the Right to Counsel look at the question whether detained immigrants should be guaranteed counsel. The extension of the Supreme Court's ruling in Gideon v. Wainwright, which guaranteed counsel to criminal defendants, to civil proceedings is especially appropriate given that 2013 is the decision's much-observed 50th anniversary.
Under the Immigration & Natinality Act, noncitizens in immigration proceedings have a right to counsel "at no expense to the Government." In 2010, the American Civil Liberties Union filed a federal class-action lawsuit in 2010 aimed at testing the constitutionality of immigrants’ right to counsel. In that action, a class of mentally disabled immigrants in detention challenges the constitutionality of not being guaranteed a lawyer. A class representative in the case, José Antonio Franco González, who has an I.Q. below 55, allegedly was wrongfully held in immigration detention for five years.
In a paper to be published in the June issue of the Yale Law Journal, I analyze the right to counsel of lawful permanent residents in immigration removal proceedings.
Bender's Immigration Bulletin provides the latest news on the legal challenge to Indiana's state immigration enforcement law.
A federal court has issued a permanent injunction blocking portions of Indiana's immigration enforcement law and declared it unconstitutional. Judge Sarah Evans Barker found that that the law "runs afoul of the Fourth Amendment" because it authorizes state and local law enforcement officers to "effect warrantless arrests for matters that are not crimes." The Indiana law permitted local law enforcement officers to make warrantless arrests of people not in possession of certain immigration-related documents, even though the possession of those documents is not a crime.
Judge Barker had previously issued a preliminary injunction against the law.
The decision is in the case of Buquer v. City of Indianapolis.
As previously reported on ImmigrationProf, the Indiana Attorney General had conceded that, in light of the Supreme Court's decision in Arizona v. United States, parts of the Indiana law could not survive.
The ACLU of Indiana was assisted on this case by Angela Adams of the firm Lewis & Kappes, P.C. and attorneys from the Immigrants' Rights Project of the American Civil Liberties Union as well as the National Immigration Law Center. The state will forego an appeal of the ruling.
Put simply, Indiana's state immigration enforcement law suffered the same legal fate of similar laws in Arizona, Georgia, Alabama, and other states. It would appear that states should think twice before passing such laws, which costs many thousands of dollars to defend (unsuccessfully).
Friday, March 29, 2013
On Monday, Pulitzer Prize-winning author Junot Díaz was a guest on the “The Colbert Report.” His segment which ran close to seven minutes focused on immigration reform and his work with Freedom University, the tuition-free organization that provides rigorous, college-level instruction to all academically qualified students regardless of their immigration status.
“Every single immigrant we have, undocumented or documented, is a future American. That’s just the truth of it,” Díaz told Colbert.
From the Arizona Daily Star:
Most Mexicans deported from the United States will keep trying to re-enter the country regardless of the penalties they face, a new University of Arizona-led study says.
"People have strong ties to the U.S.," said Daniel Martinez, one of the study's main investigators and an assistant professor of sociology at George Washington University.
"Regardless of the mode of removal, they are going to try again," Martinez said through a video news conference from Washington Thursday.
From 2010 to 2012, a binational group of researchers interviewed more than 1,000 Mexican nationals who had been deported to six Mexican cities, including Nogales.
More than half of those surveyed said they were going to try to cross again. The figure rises to 70 percent when counting only those who consider the United States home.
The portrait of the average illegal immigrant had been that of seasonal laborers and young single men with no real ties to the United States. But as enforcement and the cost of crossing illegally has increased, experts say many have decided to build their lives here instead of going back and forth.
Among those who were interviewed, one-fourth said they had U.S.-born children and 28 percent considered the United States home.
31: average age of the deportee
$280: average monthly income before trying to cross into the U.S.
74%: had previously lived or worked in the U.S.
Seven: the median number of years the deportees had spent in the U.S.
25%: had a U.S.-born child
Huffington Post reports that Rep. Don Young (R-Alaska) turned heads on Thursday, using a racial slur to describe Latinos. Addressing the United States' jobs situation in a radio interview with KRBD-FM, Young admitted that technology has impacted the market. In the process, he chose the term "wetbacks" to describe the workers his father employed. “My father had a ranch; we used to have 50-60 wetbacks to pick tomatoes,” Young said. “It takes two people to pick the same tomatoes now. It’s all done by machine.”
Here are Rep. Young's official positions on immigration. Yesterday, he told us what he really thought about farmworkers.
CNN thoughtfully reports on the response of GOP leaders to Rep. Young's use of the anti-Mexican slur.
UPDATE (April 2): Click here for analyis of the modern use of the term "wetback."
Immigration Article of the Day: Race, Legality, and the Social Policy Consequences of Anti-Immigration Mobilization by Hana E. Brown
Race, Legality, and the Social Policy Consequences of Anti-Immigration Mobilization by Hana E. Brown, Wake Forest University
Abstract: With the dramatic rise in the U.S. Hispanic population, scholars have struggled to explain how race affects welfare state development beyond the Black-White divide. This article uses a comparative analysis of welfare reforms in California and Arizona to examine how anti-Hispanic stereotypes affect social policy formation. Drawing on interviews, archival materials, and newspaper content analysis, I find that animus toward Hispanics is mobilized through two collective action frames: a legality frame and a racial frame. The legality frame lauds the contributions of documented noncitizens while demonizing illegal immigrants. The racial frame celebrates the moral worth of White citizens and uses explicit racial language to deride Hispanics as undeserving. These subtle differences in racialization and worth attribution create divergent political opportunities for welfare policy. When advocates employ the legality frame, they create openings for rights claims by documented noncitizens. Use of the racial frame, however, dampens cross-racial mobilization and effective claims-making for expansive welfare policies. These findings help to explain why the relationship between race and welfare policy is less predictable for Hispanics than for Blacks. They also reveal surprising ways in which race and immigration affect contemporary politics and political mobilization.
A Boy, a Burrito, and a Cookie From Janitor to Executive by Richard Montañez. Read about Montañez's rags to riches story. Once a janitor, he developed the Flaming hot line of products, including Flamin' Hot Cheetos - which is Frito-Lay’s top selling snack. Today, Montañez leads Multicultural Sales & Community Promotions across PepsiCo’s North American divisions.
New Immigration Text: Global Issues in Immigration Law by Raquel E. Aldana; Beth Lyon; Karla M. McKanders; Won Kidane
Publication Date: 05/20/2013 Expected Availability Date: 05/20/2013
This title is designed to serve as a textbook supplement for an advanced course in immigration law in law schools in the United States or in other countries seeking to introduce comparative and international perspectives to the study of immigration law and policy. Topics include an introductory discussion of comparative versus international law and the relevance of both to U.S. Jurisprudence; a comprehensive overview of international migration multilateral and bilateral regimes; glimpses into the immigration law and practices of Mexico, Canada, the European Union, the United Kingdom, France, and Spain; and a final part that examines international norms on freedom of movement, the right to nationality, policing, living conditions, immigrant workers and anti-terrorism law.
Thursday, March 28, 2013
Over 100 California Organizations Support Statement of Principles for Immigration Reform
Dear Friends and Colleagues,
Congress is negotiating and writing immigration reform legislation right now. And the small print of each proposal willhave a huge impact on the lives of all 2.7 million undocumented Californians, their families, and all of us.
Will reform keep families together, respect worker rights, create a more humane border, and finally end painful detentions and deportations?
Congress should listen to what California has to say - we're the state with the largest immigrant population.
Many of you are leading powerful campaigns, organizing, mobilizing, strategizing, and lobbying for fair and inclusive immigration reform.
And we are honored to share a tool to support these efforts.
Building on a convening last month with dozens of California organizations, CIPC and NILC worked with partners across the state to develop a California Values Statement on Immigration Reform. As of last week, over 100 organizations have signed on! Thank you so much to all who helped make this possible.
The statement urges Congress to pass immigration reform that protects the principle of family unity for all, including LGBT families; creates a road to citizenship for all 11 million aspiring citizens that is free of obstructions; ends unjust detentions and deportations; protects worker rights; and ensures a humane and efficient border. A detailed set of policy recommendations complement the statement.
Click Download for the statment.
Sign on, if you haven't already.
Thank you for all of your hard work for immigrant rights.
Executive Director, California Immigrant Policy Center
Mary Fan, Money, Demography and Immigration Criminalization Reform, North Carolina Law Review (2013), Forthcoming
Abstract: The nation is at a tipping point for immigration reform. The two groups most targeted by immigration control law over the last century, Asians and Hispanics, have increased in numbers and political power. Immigration reform now looms as an offering to rising minority groups rather than a strategy to keep their numbers down. Controversies over investigation, surveillance and suspicion with spillover harms for Americans perceived as immigrants have galvanized these rising voter groups. Alarms are also sounding about the expense and waste of criminally processing immigrants and the cost of rampant civil incarceration, which has made Immigration and Customs Enforcement the nation’s largest jailor. Yet as in the past, the political and scholarly debate over immigration reform continues to be dominated by the seemingly impassable divide between clashing worldviews. The central cleavage is between hierarchist and egalitarian orientations. Valuing order, hierarchs are concerned about deterring law-breakers who jump the lines and gates necessary to preserve America’s limited resources and standard of living. Valuing equality, egalitarians are concerned about a vast racially-associated underclass without legal protections or recognition. Hierarchs say that egalitarians are dangerous bleeding hearts and egalitarians say hierarchs lack heart. Renewed focus on paths to legalization for unauthorized immigrants, also termed amnesty, has revived the conflicts that doomed reform proposals in 2005, 2006, 2007 and 2010. In the clash, both camps miss opportunities for progress on issues sorely in need of redress that endanger values important to each side. Progressing beyond the usual intractable conflicts, this article explores how demographic change and fiscal responsibility can help bridge worldviews and illuminate the need to reform immigration criminalization and civil incarceration. It demonstrates that immigration criminalization and incarceration reform needs to be on the agenda. Reform need not mean unrealistic radical abolition. Achievable results can start with addressing spillover costs and harm from immigration criminalization and incarceration overbreadth embedded in the structure of current laws bearing the imprint of a repudiated past.
Wednesday, March 27, 2013
Immigration Article of the Day: Lauren Gilbert, Obama’s Ruby Slippers: Enforcement Discretion in the Absence of Immigration Reform
Lauren Gilbert, Obama’s Ruby Slippers: Enforcement Discretion in the Absence of Immigration Reform 116 W. Va. L. Rev. No. 1 (2013) (forthcoming)
ABSTRACT This article explores how Deferred Action for Childhood Arrivals (DACA) emerged both from thwarted efforts at immigration reform and the Supreme Court’s highly anticipated decision in Arizona v. United States. I argue that DACA not only was adopted in response to repeated failed efforts to pass the DREAM Act; it was also promulgated in anticipation of a possible favorable ruling by the Court on S.B. 1070. In Part I, I examine the current separation of powers crisis in immigration policy. I look in particular at both the context in which DACA was adopted and at the ICE Plaintiffs’ challenge to DACA’s constitutionality in Crane et al v. Napolitano. I address several of the constitutional concerns raised, classifying them into four different types of arguments: 1.) The Youngstown-Curtiss-Wright Dichotomy; 2.) The Non-Delegation Doctrine Resurrection; 3.) The “Take Care” Crisis; and 4.) The Notice and Comment Myth. In Part II, I address the federalism crisis in immigration policy. I argue that DACA was aimed at least in part at weakening the potential impact of S.B. 1070 by carving out a class of individuals who the states could not target and placing them in a quasi-legal status that hopefully would immunize them from state enforcement of the immigration laws and make them eligible for certain state benefits. I examine deferred action as one of many twilight statuses utilized by the immigration authorities where beneficiaries enjoy temporary relief from removal, (often) eligibility for work authorization, and (sometimes) the prospect of lawful residency. I ultimately conclude that DACA was a justifiable assertion of Executive authority in the face of a constitutional crisis marked by gridlock in Congress and restrictionism in many states. DACA fell squarely within Executive enforcement powers under an expansive interpretation of congressional and executive authority that has deep roots in the plenary power doctrine, case law going back over a century, the well-established use of deferred action and similar forms of prosecutorial discretion, and the broad delegation of powers by Congress to the Executive under the Immigration & Nationality Act. In short, like Dorothy’s ruby slippers, the Administration’s power was there all along. In announcing DACA on the eves of the Court’s decision in Arizona v. United States and the 2012 elections, the Obama Administration took a bold political move that not only may have won him the election but may have reenergized his Administration, restored balance in the government, and laid the foundation for comprehensive immigration reform. At the same the Administration must be cautious in its final term to work within the constraints of the Constitution, to focus on comprehensive immigration reform in Congress, and to not establish a precedent for unilateralism that will be subject to abuse in future administrations.
From the Immigrant Legal Resource Center
Save the Date: May 31
The Time is Now for Comprehensive Immigration Reform
23rd Phillip Burton Immigration & Civil Rights Awards
Friday, May 31, 2013 ¨ Marines' Memorial Club & Hotel ¨ San Francisco, CA
Immigrant Legal Resource Center(ILRC) presents
Featured Guest Speaker
and the Inaugural Nancy Pelosi Award for Immigration and Civil Rights Policy recipient
The Honorable Dick Durbin, U.S. Senator
Immigration Advocacy Award recipient
Jose Antonio Vargas
For more information, contact Edith Hong: email@example.com or (415) 255-9499, ext. 466
2013 Symposium on Immigration Law: Practice & Policy in the Twenty-First Century
The Scholar: St. Mary’s Law Review on Race and Social Justice cordially invite all to the Immigration Symposium on Friday, 5th of April 2013. The focus of the Immigration Symposium will be on the practical aspects of immigration law and the current policy debates that surround the field. Our goal is to provide a strong CLE for local practitioners and a strong educational experience for current law students. We hope you will be able to join us for this exciting CLE opportunity.
Benjamin T. Greer, “Human Trafficking: T-Visas and Ethical Concerns“
Rosemary Vega, Tausk & Vega, Attorneys at law “Crime and Immigration: An Overview“
Nancy Shivers, Shivers & Shivers, Immigration and Nationality Law “Naturalization Perils and Opportunities“
Professor Bill Ong Hing, Professor of Law, University of San Francisco, Professor Emeritus, UC Davis School of Law “Prosecutorial Discretion“
Roberto Balli, Board Certified Criminal Defense Attorney “The Sentencing of Crimmigrants“
Johanna KP Dennis, Associate Professor of Law, Southern University Law Center “Home, but not Home Enough: Imputing Parental Immigration Status and Residency for Formerly Undocumented Immigrant Children“
Professor Aaron S. Haas, Director of Citizenship and Immigration Clinical Program, Washington and Lee University School of Law “Marginalization Of Religious Persecution in US Asylum Laws“
Joe Martinez Jr., Special Agent, U.S. Department of Homeland Security (DHS), ”ICE Audits: What Employers Must Do To Comply and be Prepared”
David R. Walding, The Bernardo Kohler Center “Special Immigrant Juvenile Status“
POC: Claudia V. Balli, Symposium Editor firstname.lastname@example.org
Date: Friday, April 5th, 2013
Location: San Antonio Plaza Club
Frost Bank Tower
San Antonio, TX 78205
Immigrants' participation in the workforce is one of the most important markers of successful integration. But the economic success of immigrant workers in the United States varies greatly, depending on skill level or the state they reside. This month, Migration Policy Institute offers an updated "Workforce Characteristics" fact sheet, which allows you to learn more about immigrants' presence in the US labor force: their regions of origin, top occupations and industries, and the extent to which "brain waste" occurs among college-educated immigrants. The data are based on the US Census Bureau's 2011 American Community Survey (ACS).
Here are a few select stats from the fact sheet that you may find interesting:
• One in six US workers are born abroad: The 23.3 million immigrants in the US civilian labor force account for 17 percent of workers ages 16 and older, while at the same time, immigrants account for 13 percent of US residents. Both the number and the share that immigrants represent among all US civilian employed workers roughly doubled between 1990 and 2011.
• Traditional gateway states have high shares of immigrants in the labor force: The three states with the highest share of immigrants in the overall workforce are California (35 percent), New Jersey (28 percent), and New York (close to 28 percent). On the other end of the spectrum, West Virginia has the lowest share of immigrants in its labor force (less than 2 percent).
• Immigrants are overrepresented among less-educated workers: Immigrants account for 51 percent of workers without a high school degree and 16 percent of college-educated workers ages 25 and older. For instance, California ranked No. 1 for both the highest share of immigrants among low-educated workers (80 percent) and the highest share of immigrants in the college-educated workforce (30 percent). At the other end, Montana has the lowest share of immigrants among its college-educated workers (3 percent) and West Virginia has the lowest share of immigrants among its low-educated workforce (3 percent).
• "Brain waste" affects more than 1.5 million college-educated immigrants: Some 22 percent of immigrants with a college degree were either unemployed or worked in unskilled jobs such as dishwashers, security guards, and housemaids.
The two cases currently before the U.S. Supreme Court both could have significant impacts on immigration law. The first is Hollingsworth v. Perry, which considers the constitutionality of California's gay marriage ban, Proposition 8. The second is United States v. Windsor, a case where the petitioner challenged the constitutionality of a section in the Defense of Marriage Act (DOMA). The case will address whether legally married gay couples should have access to the federal benefits afforded to married straight couples. The oral arguments for both cases are this week and decisions on both are anticipated in June.
Under the Immigration and Nationality Act and the regulatory scheme, USCIS generally looks to the place of the marriage to determine whether a marriage between a U.S. citizen and a foreign national is valid. The INA, section 245, permits a U.S. citizen to petition for a foreign national spouse if certain requirements are met such as a lawful admission. The federal government has routinely denied marriage-based adjustment in same-sex cases where the marriage occurred even in a state where the marriage was legally obtained. To date there are 9 states as well as the District of Columbia which allow for same sex marriages. If for example DOMA were found unconstitutional then USCIS would be in a position to give full faith and credit to those marriages which are lawful in the states which allow for such marriages. To date, the federal government has instead denied such cases under DOMA.
The irony is that the federal government, as expressed in a February 2011 letter from AG Eric Holder to Congress, has made it clear it will not defend DOMA in the courts; in fact the government believes that DOMA is unconstitutional because the law is subject to “heightened scrutiny.” USCIS has then been put in the paradoxical position of having to enforce an unconstitutional law. Following the AG’s letter, advocates were hopeful USCIS would start granting such cases but they have not. They have not even been put on hold. The fact that I-130s (petitions for alien relatives) have been denied is continuing, and cases have been denied even as recently as last week. For those of us who teach immigration law, it is a troubling if not interesting conundrum in which an administrative agency has perceived itself as being duty-bound to enforce the plenary power of Congress even where the Administration has made its position be known in court that the law is clearly unconstitutional.
It is too early to tell on what basis the high court will rule, whether it will hold DOMA to be constitutional, unconstitutional, arrive at a middle ground position affecting a limited number of states, or reject one or both cases out of hand as lacking in jurisdiction. It is possible given the fact that the Obama administration agrees that the law is unconstitutional that the Court could find there is no case or controversy. In the Proposition 8 case the Court could also find no standing and therefore leave the lower court’s decision to stand, invalidating Proposition 8. This would limit the effect of the case to California only. On the other hand, the Supreme Court could go the other way and find there exists a fundamental right to same-sex marriage under the Due Process clause. Such a broad ruling would have significant implications for immigrants. In such a case, all states would be required to recognize such marriages and many people would be helped in such event. The beneficiaries could be thousands if not tens of thousands of intending immigrants.
Director-University of Houston Immigration Clinic
See also Professor Hoffman's previous post on DOMA
Tuesday, March 26, 2013
Stuck Elevator is an eclectic music-theater work based on the true story of a Chinese deliveryman in the Bronx who was trapped in an elevator for 81 hours. Sounding the alarm would open the doors to freedom, but calling for help also means calling for attention—with dire consequences for this undocumented immigrant. Suspended between the upward mobility of the American dream and a downward plunge into an empty abyss, he delves into memories of his past and into nightmares of his present predicament, all within the confines of a 4’ by 6’ by 8’ metal box.
An Invitation from the White House: Nearly everyone in America has an immigration story to share. Tell Us Yours.
Your story could help us reform immigration.
Our immigration system is broken, and in the weeks ahead, pushing for reform will be one of our top priorities. To accomplish that goal, we'll need your support.
The United States is a nation of immigrants. If we look back far enough, nearly all of us will find an ancestor who came to these shores from someplace else.
So almost all of us have an immigration story, and as we prepare for the debate ahead, we want to hear yours. We'll use the information you share to put a face on this conversation in Washington -- and make sure that the perspective of individual Americans is part of the policy discussion. Share your immigration story today and be part of this debate.