Saturday, August 31, 2013
We have re-added the moderated comments function to the ImmigrationProf blog. Share your thoughts, opinions, and comments. Also, please feel free to let any of the co-editors know if you are interested in submitting a guest blog post. Thanks for being engaged and devoted readers!
Immigration Article of the Day: Why No Deference Is Due: The Illegitimacy of the Board of Immigration Appeals' Legitimation Jurisprudence by Laura Murray-Tjan
Abstract: Countless derivative citizenship cases turn on the question whether an out-of-wedlock child qualifies as “legitimated” under the Immigration and Nationality Act (INA) and state or foreign family law. Whether a child is “legitimated” determines whether she automatically obtains citizenship upon a parent’s naturalization under the INA’s derivative citizenship provisions. Currently, the circuits are split on the level of deference owed to the Board of Immigration Appeals’ interpretation of derivative citizenship statutes. Within this debate, the courts have assumed that Chevron deference applies to the Board’s interpretation of the term “legitimated,” perhaps because the provisions defining “legitimated” do not relate exclusively to citizenship. As indicated above, however, whether a child is “legitimated” is often outcome-determinative in a citizenship claim; such fundamental issues should not be abdicated to the Board of Immigration Appeals. Thus, no deference is owed to the Board’s interpretation of derivative citizenship statutes, or of the term “legitimated” in the INA and under state and foreign law.
The nation’s Hispanic population, while still anchored in its traditional settlement areas, continues to disperse across the U.S., according to a Pew Research Center analysis of U.S. Census Bureau data.
Today, the 100 largest counties by Hispanic population contain 71% of all Hispanics. Los Angeles County, CA alone contains 4.9 million Hispanics, or 9% of the nation’s Hispanic population. But the share of all Hispanics who live in these same counties has fallen from 75% in 2000 and 78% in 1990 (Fry, 2008), reflecting Hispanic population growth outside of these 100 counties. Half (52%) of those counties are in three states—California, Texas and Florida. Along with Arizona, New Mexico, New York, New Jersey and Illinois, these eight states contain three-quarters (74%) of the nation’s Latino population. But with the dispersal of the U.S. Latino population across the country, this share too is down from 79% in 2000 and 84% in 1990.
The geographic settlement patterns are to some degree aligned with the diverse countries of origin of the Hispanic population. For example, Mexican origin Hispanics are the dominant group in the Los Angeles-Long Beach metropolitan area, making up 78% of the area’s Hispanics. They are also the dominant group in many metropolitan areas in the border states of Arizona, California, New Mexico and Texas. But along the East Coast the composition of Hispanic origin groups differs. In the New York-New Jersey metropolitan area, Puerto Ricans and Dominicans are the dominant Hispanic origin groups. In Miami-Hialeah, FL, Cubans are the dominant Hispanic group and in the Washington, D.C. metropolitan areas, Salvadorans are the largest Hispanic origin group among that area’s Hispanics. Nationally, Mexicans are the largest Hispanic origin group, making up 64.6% of all Hispanics.
Friday, August 30, 2013
Here is a link to a moving report by Human Rights Watch on the upsurge in prosecutions for illegal reentry under 8 USC 1326 and the unnecessary toll this is taking on hard working families.
Many of those who enter or reenter the U.S. unlawfully do so for reasons completely unrelated to conventional notions of criminal activity, such as the desire to reunite with family or because they are fleeing violence and persecution abroad. U.S. District Judge Robert Brack, who estimated he has sentenced over 11,000 people for illegal reentry, stated, “For 10 years now, I’ve been presiding over a process that destroys families every day and several times each day.”
California Supreme Court to Hear Oral Arguments in Case of Undocumented Immigrant Seeking a License to Practice Law
On May 16, 2012, the Supreme Court issued an order directing the Committee of Bar Examiners to show cause why the court should grant the committee's motion to admit Sergio C. Garcia to the State Bar as a licensed attorney. This question presented by the case is whether an undocumented immigrant who has graduated from law school and passed the California bar examination may be admitted to the California Bar or whether such admission is precluded by any federal statute or for any other reason.
The Committee of Bar Examiners certified his name to the Supreme Court for admission to the State Bar. The bar notified the court of Garcia’s immigration status at the time the motion was filed. The Supreme Court’s order directed the Committee of Bar Examiners and Garcia to file briefs in support of the Committee’s motion and invited others to file amicus curiae briefs in the Supreme Court. The order specifically invited amicus participation by the Attorneys General of California and the United States.
The order listed five specific questions for briefing:
1.. Does 8 U.S.C. section 1621, subdivision (c) apply and preclude this court’s admission of an undocumented immigrant to the State Bar of California? Does any other statute, regulation, or authority preclude the admission?
2. Is there any state legislation that provides — as specifically authorized by 8 U.S.C. section 1621, subdivision (d) — that undocumented immigrants are eligible for professional licenses in fields such as law, medicine, or other professions, and, if not, what significance, if any, should be given to the absence of such legislation?
3. Does the issuance of a license to practice law impliedly represent that the licensee may be legally employed as an attorney?
4. If licensed, what are the legal and public policy limitations, if any, on an undocumented immigrant’s ability to practice law?
5. What, if any, other concerns arise with a grant of this application?” Once the briefing is completed and the court has an opportunity to consider it, the court may set the case for oral argument.
Links to the briefs in the case can be found here. The following briefs, the last of which was submitted in September 2012, were filed in the case:
1. Committee of Bar Examiners of the State Bar of California’s Opening Brief on the Merits
2. Applicant’s Opening Brief on the Merits
3. Amicus Curiae Brief of California Attorney General Kamala D. Harris
4. Amicus Curiae Brief of Larry DeSha
5. Amicus Curiae Brief of Los Angeles County Bar Association, et al.
6. Amicus Curiae Brief of Community Legal Services in East Palo Alto, et al.
7. Amicus Curiae Brief of La Raza Lawyers Association of Sacramento, et al.
8. Amicus Curiae Brief of Mexican American Bar Association of Los Angeles County
9. Amicus Curiae Brief of California Latino Legislative Caucus
10. Amicus Curiae Brief of National Center for Lesbian Rights, et al.
11. Amicus Curiae Brief of Michael A. Olivas, et al.
12. Amicus Curiae Brief of Sandra L. Brooks, et al.
13. Amicus Curiae Brief of American Civil Liberties Union Foundation, et al.
14.Amicus Curiae Brief of Cesar Vargas Filed on July 27, 2012
15. Amicus Curiae Brief of Dream Bar Association, et al.
16. Amicus Curiae Brief of Joseph A. Vail Center for Immigrant Rights
17. Amicus Curiae Brief of Dream Team Los Angeles, et al.
18. Amicus Curiae Brief of the United States of America
19. Amicus Curiae Brief of Nicholas Kierniesky Filed on August 16, 2012
20. Committee of Bar Examiners of the State Bar of California's Response to Amicus Curiae Brief of the United States of America
21. Applicant's Consolidated Response to Amicus Curiae Brief (Filed on September 14, 2012).
Only a couple of the amici opposed the admission of Sergio Garcia to the California bar. To the surprise of many knowledgeable observers, the U.S. government's brief contends that federal law (8 U.S.C. § 1621) per se prohibits the states from issuing a license to practice law to undocumented immigrants.
After sitting on the Garcia case for nearly a year, the California Supreme Court has scheduled oral arguments in the case for next Wednesday morning, September 4, 2013. Stay tuned for further details.
For analysis of the case, click here.
Next Monday, the United States will observe Labor Day, which pays tribute to the many contributions and achievements of American workers. As celebrations are underway, the holiday offers an opportune moment to reflect on the very concept of American workers. In other words, who is an American worker? Where do immigrants—who contribute their talents and labor to the production of goods and services in the United States—fit into the picture? Numerous studies have shown that the effect of immigration on native-born American wages is positive when taking the long view. Since the formation of the United States, immigration has helped fill labor supply needs to enable the country to emerge as—and remain—the world’s economic superpower. In fact, the United States’ most prosperous periods coincide with waves of immigration, and to this day, immigrant workers continue to be a key component of the U.S. economy.
I just received this e-mail. Is it true?
"To help save the economy, the Government will announce next month that the Immigration Department will start deporting seniors (instead of illegals) in order to lower Social Security and Medicare costs. Older people are easier to catch and will not remember how to get back home. I started to cry when I thought of you. Then it dawned on me ... oh, shoot ... I'll see you on the bus!"
Immigration Article of the Day: An Assessment of Antebellum Immigration Federalism and The Myth of the Weak State by Anna O. Law
An Assessment of Antebellum Immigration Federalism and The Myth of the Weak State by Anna O. Law, CUNY Brooklyn College, APSA 2013 Annual Meeting Paper
Abstract: In a federal system of government, why did the U.S. national government wait until 1882 to take over control of immigration policy from the states and localities? This phenomenon is especially curious since the control of entry/exit into and across a nation’s borders is so fundamental to the very definition of a state. Is it because the American state was too weak to do so, or specifically that the national government lacked administrative capacity to handle immigration until the late twentieth century? I argue that the delay of the national government taking over immigration was not due to a lack of administrative capacity. Instead, there were regionally specific reasons that the states preferred to retain control of migration policy. In the northern seaboard states, the priority was excluding the poor, sick, and criminal, who, if admitted, would pose social and economic burdens on those states. In the South, the motivation was preserving slavery and guarding against slave insurrections. The national government could not take over migration policy until a series of political events uncoupled slavery and migration policy in the South, and the federal government assumed financial responsibility for screening poor, sick, and criminal immigrants in the North.
Thursday, August 29, 2013
The Texas Tribune tells this bittersweet story of a wedding day for a Latino couple of mixed immigration statuses:
"The inches Maricruz Valtierra Zuniga stood from the United States border on Tuesday morning could be as close as the new bride ever gets to this country. In a wedding ceremony atop the international bridge, witnessed by family members, a U.S. congressman and Customs and Border Protection agents, Valtierra, a 25-year-old from Mexico, married her longtime boyfriend, Edgar Falcon, 27, a U.S. citizen who calls El Paso home. A mistake authorities say Valtierra made when she was a teenager — falsely claiming to be a U.S. citizen — means she is barred from ever entering this country, or establishing a life in teh United States with her husband."
Anil Kalhan, Associate Professor at Drexel University Earle Mack School of Law, was recently nominated for a South Asian Journalists Association (SAJA) award for his contribution to the ImmigrationProf Blog on December 12, 2012 entitled, "'Truly Civil' Torture."
Thank you for guest-blogging for us, Anil, and congratulations on your nomination!
Immigration Article of the Day: Without Protection: Refugees and Statelessness - A Commentary and Challenge by Maryellen Fullerton
Without Protection: Refugees and Statelessness - A Commentary and Challenge by Maryellen Fullerton Brooklyn Law School August 8, 2013 Brooklyn Law School, Legal Studies Paper No. 351
Abstract: The stateless have by and large been ignored in the field of international human rights, and their existence and needs have rarely been addressed within the refugee law sphere. The 1951 Refugee Convention, the bulwark of international refugee law, acknowledges the stateless and expressly extends it protections to them. Despite this acknowledgement of the vulnerability of stateless populations and their potential need for protection, little of the growing body of refugee law jurisprudence has addressed issues involving statelessness. The post-World War II diplomatic community that drafted the conventions concerning refugees and stateless individuals assumed that the existence of stateless people was a temporary phenomenon. History proved the predictions wrong. Rather than disappearing, the phenomenon of statelessness has grown: UNHCR estimates there are 12 million stateless people in the world today. In 2010 and 2011 tribunals in the United States, the United Kingdom, and Canada issued opinions that begin to explore statelessness as a form of persecution protected by the 1951 Refugee Convention. Two courts in the United States, one in the United Kingdom, and one in Canada examined instances in which asylum seekers had been deprived of their citizenship by the States in which they had been born and resided. All the tribunals concluded that statelessness alone does not qualify individuals for refugee status, and the UK and Canadian courts emphasized that the refusal to allow a stateless person to return to his or her country of habitual residence does not, on its own, constitute persecution. Nonetheless, two of the courts stated that denationalization on ethnic grounds that results in statelessness is persecution per se, and another tribunal acknowledged that a State’s denial of the right to return to a lifelong resident would very likely constitute persecution if done in an arbitrary manner. These opinions raise more questions than they answer. For example, in the context of independence from a colonial power, is it unlawful for citizenship laws to disfavor the colonizers and their descendants? In response to government policies that have intentionally aimed to change the ethnic composition of a restive area (consider Tibet under Chinese rule), would it constitute persecution if new citizenship laws disfavored those groups that arrived as part of the former government’s pacification plan? Do language tests, generally viewed as a legitimate requirement for naturalization, become unlawful when applied to lifelong residents? What about stateless individuals who have been longtime lawful residents based on their employment? If national law authorizes noncitizens to reside so long as they have authorization to work, what happens when they lose their jobs and, as a consequence, their residence permits? Noncitizens generally must leave or face expulsion, but are there some circumstances when expulsion of those who are stateless will constitute persecution? Does it matter if the noncitizens were born and lived their whole lives there? If they have done nothing to trigger the job loss? If no other State will grant them lawful admission?The answers to these questions are not simple or obvious. Thus far the jurisprudence is sparse concerning the legal obligations that Nation States owe to those who lack membership in any State. The crossroads of statelessness and international refugee law is uncharted territory, and the need for exploring it is urgent.
Wednesday, August 28, 2013
Fifty years after Dr. Martin Luther King Jr. delivered his historic call for racial equality in the March on Washington, immigration reform activists are seizing on his "moral tone" in their fight for laws easing a pathway to citizenship.
“At the core, we are talking about the same thing,” says Clarissa Martinez de Castro, the director of immigration policy for Hispanic civil rights organization National Council of La Raza. “This is a conversation about the value of a person. It was the core of the conversation then, and it is the core of the conversation now."
This week's anniversary of the March on Washington comes as comprehensive immigration legislation passed by the Senate remains stalled in the House. Leaders in the lower chamber have indicated that they want a “step-by-step” approach that appears unlikely to include the hallmark of the Senate bill: a path to citizenship for undocumented immigrants. Read more....
The National Law Journal reports that the U.S. Equal Employment Opportunity Commission offices in Dallas, Miami and New York have signed historic agreements with Mexican consulates with the goal of protecting and educating “all Mexicans about their employment rights of in the workplace, regardless of immigration status.” The agreements followed similar initiatives in cities including Birmingham, Ala.; Cleveland; Detroit; and New Orleans.
Under the agreement, the EEOC will present educational events, provide Spanish-language information and deliver training sessions to consulate staff about the EEOC and the laws it enforces.
The EEOC for years has declared the federal employment discrimination statutes cover undocumented workers. While it's illegal for employers to hire people who are not authorized to work in the United States, it also is illegal to violate their civil rights.
Immigration Article of the Day: The Lost Brown v. Board of Education of Immigration Law by Gabriel J. Chin, Cindy Hwang Chiang, Shirley S. Park
The Lost Brown v. Board of Education of Immigration Law by Gabriel J. Chin (University of California, Davis - School of Law), Cindy Hwang Chiang , Shirley S. Park, North Carolina Law Review, Vol. 91, No. 5, 1657 (2013)
Abstract: This Article proposes that in 1957, the Supreme Court came close to applying Brown v. Board of Education to immigration law. In Brown, the Supreme Court held that school segregation was unconstitutional. Ultimately, Brown came to be understood as prohibiting almost all racial classifications. Meanwhile, in a line of cases exemplified by Chae Chan Ping v. United States and Fong Yue Ting v. United States, the Supreme Court held that Congress enjoyed plenary power to discriminate on any ground, including race, in immigration law. These holdings have never been formally overruled. Immigration, then, is said to be an exception to the general rule of Brown and Bolling v. Sharpe. In 1957, however, the Supreme Court granted certiorari in United States ex rel Lee Kum Hoy v. Murff, to resolve the question of the permissibility of race discrimination in the immigration context. The case involved a policy under which immigration officials tested the blood of Chinese people immigrating as children of U.S. citizens to determine whether they were related to their claimed parents, but not the blood of similarly situated members of other races. The Second Circuit, over the dissent of Judge Jerome Frank, upheld the discriminatory policy, so the Court had no reason to take the case unless it thought the decision was incorrect. While the Supreme Court ultimately granted the petitioners relief on other grounds, records of the Court and the short per curiam opinion suggest that the Court may have been prepared to hold at least this form of discrimination in immigration unconstitutional.
Former Salvadoran military officer sentenced for perjury and concealing information from US government
U.S. Immigration & Customs Enforcement reported yesterday that a Salvadoran man residing in Everett, Mass., who faces charges of crimes against humanity and state terror in Spain, was sentenced for immigration fraud and perjury in connection with false statements he made on immigration forms in order to remain in the United States. Inocente Orlando Montano, 71, was sentenced to 21 months in prison followed by one year of supervised release and a special assessment of $600. Montano previously agreed to be deported from the United States upon completion of his prison term. A judicial order of removal has been secured and he will be removed from the U.S. to El Salvador following his sentence.
In September 2012, Montano pleaded guilty to three counts of immigration fraud and three counts of perjury.The investigation was conducted by U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) Boston with assistance from ICE’s Human Rights Violators and War Crimes Center.
Tuesday, August 27, 2013
The Alliance of Baptists joined other faith organizations and leaders in an Aug. 21 letter opposing a law pending in Congress to crack down on crimes committed by aliens living in the United States illegally.
Introduced in the House of Representatives June 6 by Border Security Subcommittee Chairman Trey Gowdy (R-S.C.), the Strengthen and Fortify Enforcement Act aims to increase cooperation between local police and the U.S. Immigration and Customs Enforcement and close loopholes in federal law that proponents believe allow criminal aliens to enter and stay.
“Government’s first duty is public safety, but under this Administration, we have seen our immigration laws go unenforced, gaps in our national security persist, and criminal aliens released onto our streets,” Gowdy said. “This current state of affairs cannot continue, and Congress must establish accountability measures so the immigration laws we pass will in fact be enforced.”
Supporters of H.R. 2278 — also known as the SAFE Act — say it would make it easier for immigration officials to do their job and harder for foreign nationals who pose a national security risk to enter and remain in the United States. Opponents say it would turn millions of undocumented immigrants into criminals overnight and state and local law enforcement officers around the county into immigration agents.
Faith leaders signing the Aug. 21 open letter to House Speaker John Boehner (R-Ohio) objected specifically to provisions in the SAFE Act that would criminalize religious leaders and houses of worship that provide humanitarian assistance to all persons regardless of immigration status. They said those provisions “run directly counter to our beliefs in generosity, hospitality and welcome.”
Section 314 of the SAFE Act would make it a crime to transport undocumented immigrants and “encourage or induce a person to reside in the Unites States” if that person lacks immigration status. The penalties for engaging in such activities range from three to 20 years in prison. Read more...
Abstract: This Essay briefly mines America’s history to argue that the law setting forth where our national borders are and how strictly we patrol them has always been subject to the vagaries of politics, economics, and perception. Illegal (im)migration has long been part of our migration history, engaged in not just by Latin American border crossers, but also by prominent colonists, giving the lie to the claim that upholding border laws should always be sacrosanct. In many school districts today, the usual summary of American history from our childhood civics classes no longer bypasses the uncomfortable truths of conquest and westward expansion by Anglo-Protestant settlers to the detriment of Native Americans and Mexicans. However, not often is this story described as a parable of illegal immigration.
Monday, August 26, 2013
Professor Denise Gilman of introduces her students at the University of Texas Law School Immigration Clinic to immigrants who have lived and worked in the United States for many years and have formed families here, often including U.S. citizen spouses and children. For many of these individuals, there is no path to regularize their status in the United States under current law. Instead, they live in fear that their families will be ripped apart through detention and deportation, which impacts their ability to meet their full potential as productive contributors to society. Read Professor Gilman's op/ed on what the Texas border does not need.
This weekend saw the 50th anniversary of the March on Washington and Martin Luther King's famous "I have a Dream" speech. As th nation celebrates this anniversary, a new civil rights issue has been domininating the headlines -- immigration reform.
Not surprisingly, according to news reports, immigrant rights advocates came from near and far to be part of the commemoration. They included Casa de Maryland, founded by Central American immigrants in the D.C. area.
The link between the civil rights activism and America's immigration reality brings history full circle as the demographic change being seen across the United States owes some of its existence to the Immigration and Nationality Act of 1965, itself a product of the civil rights movement that eliminated much discrimination (especially against Asians) in the U.S. immigration laws. That Act lead to changing racial demographhics of immigration.
In 2006, in protest of a punitive immigration reform bill passed by the U.S. House of Representatives, tens of thousands of people took to the streets in cities across the country in protest.
In recent months, there have been concerted political efforts to move Congress to pass comprehensive immigration reform. We will see whether the activism bears fruit.