Tuesday, September 30, 2014
With the unprecedented number of children heading to the U.S.-Mexico border to escape unrest and mistreatment in their own nations, there has been an increased risk of abuse identified once they are in the U.S. immigration system. Young people who identify as lesbian, gay, bisexual, or transgender, or LGBT, are particularly vulnerable and report physical and verbal abuse at a rate higher than other groups, as well as numbers disproportionate to the children in foster care and shelter care as a whole.
An issue brief released by the Center for American Progress finds that LGBT youth are at risk of being harassed in their home countries and en route to the United States and at greater risk while in custody than non-LGBT youth. It also shows how existing laws and policies could better protect the most vulnerable among an already exceedingly vulnerable population of unaccompanied children.
“Most unaccompanied children who undertake the difficult and dangerous trek to the United States from countries in Central America do so to escape something worse back home,” said Sharita Gruberg, co-author of the brief and a Policy Analyst for the LGBT Immigration Project at CAP. “For those who identify as LGBT, the abuses are particularly stark and unfortunately do not end once they reach the U.S. border. We have laws and policies in place to protect people from abuse while in government facilities, as well as nondiscrimination policies that should be working to prevent this from happening to any one community. It is time for these policies to work for members of the vulnerable LGBT community, who are risking their lives to come to the United States only to face similar physical and verbal abuse in the very country that should be helping them.”
The brief suggests using the Prison Rape Elimination Act, or PREA, and various other state nondiscrimination policies as a model for treatment of LGBT youth in facilities contracted by the Office of Refugee Resettlement, or ORR. Though they are required by law to implement PREA, they have not done so. Run as part of the Department of Health and Human Services, ORR oversees private facilities ranging from shelters, group homes, foster care homes, staff secure facilities, and secure facilities such as juvenile detention centers. Most LGBT youth report some sort of verbal or physical abuse in foster care facilities, and stories of discrimination and expulsion from these facilities are not uncommon.
Click here to read the brief.
Response to “Criticism of Second Circuit ‘Copying and Pasting’ Misses the Big Picture” by Brian Soucek
In a guest post last week, Professor Andrea Saenz argued that I missed the forest for some very small, and possibly misidentified, trees in a 2012 Essay and a recent Wall Street Journal interview, where I criticized the Second Circuit for copying and pasting substantively misleading language into its unpublished immigration opinions. Not only does Professor Saenz think the court’s copy-and-pasted language isn’t all that bad, but she thinks that I’ve overlooked “the broader picture of how the Second Circuit actually treats the claims of asylum seekers, which is thoughtfully and with care.” Perhaps unsurprisingly, I disagree on both counts.
Saenz thinks that my “hyper-focused critique” of “small word choices” and “minor phrases” misses what courts are really doing in asylum claims based on “membership in a particular social group,” which until recently required a showing of the group’s “social visibility.” But I’ve been arguing since 2010 that “small word choices”—all playing on ambiguities in the word “visibility”—are what confused immigration judges, the Board of Immigration Appeals, courts, and, as the Solicitor General later admitted, the DOJ’s own lawyers, into thinking that social group members need to “look” a certain way in order to receive protection. Given all this confusion, the BIA made more than what Saenz calls a “cosmetic change” when it abandoned “visibility” for “distinction” in two precedential decisions last February. Yet the literalized understanding of visibility that the BIA abandoned is precisely the one the Second Circuit keeps giving us when it copies and pastes the claim that asylum seekers must exhibit a trait that is socially visible in their society.
No matter, Saenz argues, because the literalized understanding of visibility that appears in the Second Circuit’s unpublished summary orders doesn’t seem, on its own, to have doomed any asylum claims. That may be true, but none of us writing from outside the court can really be sure. Consider, for example, Vucaj v. Holder,one of the court’s most recent copy-paste jobs. The unpublished opinion in that case is so shoddy that it fails even to mention the social group it rejects as a matter of law. Since the briefs are sealed, the public has no way of knowing whether the group, whatever it may have been, is one that should be rejected under the actual governing standard—social distinction—not just the court’s outdated, copied-and-pasted paraphrase.
So much for the trees; what about the forest? In her main disagreement with me, Professor Saenz argues that I’ve missed how the Second Circuit “seriously engag[es] with asylum law” and “actually treats the claims of asylum seekers … thoughtfully and with care.” If that’s the forest, I haven’t missed it so much as denied its existence.
Putting aside her personal experience working at the Second Circuit—as I do also in my work, which relies only on publically available information—Saenz draws what she calls the “big picture” from six cases in which the Second Circuit reached good outcomes—or at least refused to affirm the bad outcomes that were reached below. But during the years in which those six cases were heard, the Second Circuit decided some 5,213 immigration cases (according to the BIA). So the fact that the Second Circuit may have reached admirable decisions in 0.12% of those cases is hardly revealing. (A broken clock is right 0.14% of the time.) In short, it will take more to convince me that I’ve missed the big picture here.
In particular, it will take more to convince me that the Second Circuit is being “thoughtful,” “careful,” or “seriously engaged” when it decides 98% of its immigration cases through non-precedential summary orders rather than published opinions; when it presumptively denies oral argument in asylum cases—and only asylum cases; when its judges, departing from their usual practice, resolve nearly all asylum claims without meeting in person to discuss them; and when the court finds in favor of asylees at a rate that, for several years, has been less than half that of its sister circuits. (Sources: Soucek; Newman; Levy; BIA.)
None is this is to deny that some within the Second Circuit have done inspiring work on behalf of immigrants—largely in collaboration with the terrific clinic that Professor Saenz helps lead. In fact, the innovative and tireless spirit that Chief Judge Katzmann has brought to bear in helping immigrants find legal representation is, I think, exactly what is needed within the court as well. For nine years now—the anniversary is today—the Second Circuit has subjected asylum-seekers to a separate and decidedly unequal procedural regime, solely for the sake of efficiency. But efficiency comes at a cost. My work on copy-paste precedent aimed to show just part of that cost—one which, like so many others, asylees are forced to bear.
The America Immigration Council has released The U.S. Immigrant Investor Program: New American Investors Making a Difference in the Economy by Matthew Kolodziej.
The State Department recently announced that, for the first time ever, the EB-5 Immigrant Investor Program has reached its cap of 10,000 visas, due in large part to an increase in Chinese investors. Although the EB-5 program has been around since 1990, the growth in its popularity as an investment tool has gone up during the most recent economic crisis. The EB-5 visa offers foreign investors a chance to live in the United States and become citizens in exchange for providing $500,000 to $1 million in capital that creates at least 10 new jobs. The EB-5 Investor Program illustrates how immigration law can be used to directly stimulate economic growth and development.
If you only know Mathangi "Maya" Arulpragasam -aka- M.I.A. from her 2012 Super Bowl performance where she infamously extended her middle finger to the camera, you're missing out. M.I.A. is the daughter of a Tamil activist who spent her early years hiding from the Sri Lankan army and, ultimately, ended up a refugee in London. Her music makes a great accompaniment to immigration law.
It’s about people driving cabs all day and living in a s—ty apartment and appearing really threatening to society. But not being so. Because, by the time you’ve finished working a 20-hour shift, you’re so tired you [just] want to get home to the family. I don’t think immigrants are that threatening to society at all. They’re just happy they’ve survived some war somewhere.
Clever listeners will realize that Paper Planes samples from The Clash's 1982 "Straight to Hell," another immigration anthem.
Andrea Jung From Canada | President and CEO of Grameen America
An ambitious and rapidly rising star, who had already been second in command at I. Magnin and directed all women’s apparel for Neiman Marcus by age 32, Andrea Jung was named the first female president and CEO of Avon Products in 1997—the highest-ranking minority woman at any major public U.S. company. Entering amid sagging sales, Jung rejuvenated Avon, expanding the number of products, marketing toward younger women, and reinventing it as a major global brand. In 2009, Forbes magazine named her No. 25 on its list of “The 100 Most Powerful Women.”
Immigration Article of the Day: Refugee Law in Context: Natural Law, Legal Positivism and the Convention by Isaac Kfir
Refugee Law in Context: Natural Law, Legal Positivism and the Convention by Isaac Kfir, Institute for National Security & Counterterrorism (INSCT), Syracuse University; College of Law September 8, 2014
Abstract: The contemporary refugee system was product of a desire to provide protection and assistance to those who have a well-founded fear of persecution, a somewhat sophistic term in the twenty-first century, which may explain why the system is cumbersome, incoherent and divisive. One explanation for the tension within the refugee regime is the fact that the refugee system is controlled by nation-states — mainly western states — leading to conflicting views and interpretation as to their obligations toward those seeking and claiming refuge, as these states seek to reduce refugee applications while seeking to adhere and uphold their international obligations. Another however is to suggest that it is the legal traditions — natural law and legal positivism — that lie within international refugee law that have led to a crisis when it comes to international refugee law. That is, it is the tension between the two traditions that weakens the system because they undermine the development of a clear legal taxonomy. The paper begins by looking at how natural law and positive law have shaped international refugee law. The second section reviews the Refugee Convention, which seems to amalgamate the two traditions. The section highlights how over time, and especially in the post-Cold War era, the regime became so fragmented, as refugeeship and the conditions that led to refugeeship changed. The paper concludes by calling on refugee law scholars to engage in a phenomenological and epistemological discussion of the refugee regime as a way to challenge those who abuse the system.
Monday, September 29, 2014
The Wall Stree Journal reports that Marc Benioff, founder, chairman and chief executive of SalesForce.com and his wife, Lynne, made a $500,000 donation to support Central American migrant children who have arrived in the United States in the last several months. The full article is here.
In so doing, the Benioffs joined other philanthropists who have collectively donated about $2 million for these migrant children. Additionally, as Dean Johnson blogged, Governor Brown recently signed legislation that set aside $3 million for legal representation for these children.
Governor Jerry Brown has signed into law a bill to help fund lawyers for unaccompanied children in immigration proceedings. The legislation signed over the weekend appropriates $3 million to qualified nonprofit organizations to help represent unaccompanied minors in deportation proceedings. The move follows a reported increase in the number of unaccompanied Central American children arriving on the U.S.-Mexico border.
UPDATE (Sept. 30, 2015): Governor Brown also signed into law two other immigration-related bills. One bill creates the State Dream Loan Program, which will provide $9.2 million for state public universities to administer loans to undocumented students. Another bill signed by Brown, Senate Bill 1159, will allow undocumented immigrants to apply for professional state licenses to work as doctors, dentists, nurses and in other professions. This builds on legislation signed into law last year that allows undocumented immigrants to be licensed to practice law, a response to teh case of Sergio Garcia pending in the California Supreme Court.
In 2011, Brown signed the California Dream Act into law, allowing undocumented children brought into the U.S. under the age of 16 to apply for student financial aid. Last year, Brown also approved a controversial bill that will grant driver's licenses to undocumented immigrants.
As was reported last week, Attorney General Eric Holder, this nation's first African American Attorney General, is stepping down. The Attorney General oversees the entire Department of Justice, including the Executive Office for Immigration Review (EOIR) and the entire immigration court system). The EOIR has run fairly smoothly under Holder's leadership but the criticism of Board of Immigration Appeals has continued. Holder has taken some important steps involving immigration, including steps directed at human trafficking and hate crimes. For a thoughtful retro spective on Attorney General Holder's tenure, click here.
The invalidation of Arizona's immigration enforcement law known as SB 1070 is one of Attorney General Holder's most significant immigration achievements. In 2010, the Department of Justice filed suit against Arizona on the grounds that the state law was preempted by federal law. The Supreme Court ultimately invalidated the guts of SB 1070. Holder said that although he was pleased that much of the law had been struck down, he remained concerned over the possibility that it might be used to discriminate against the Latino community. He vowed to continue to monitor the impact of the law. The Supreme Court's decision in Arizona v. United States resulted in the invalidation of many state and local immigration enforcement laws.
Holder consistently supported comprehensive immigration reform, adding that it is a "matter of civil rights and human rights."
In June, Attorney General Holder announced a new program aimed at ensuring that illegal immigrant children who cross into the U.S. without a parent or guardian have legal representation in the United States. Holder announced an initiative called “justice AmeriCorps,” a grant program meant to fund lawyers and paralegals to provide legal services to these children. Holder convinced Congress in the spending bill to include $315 million for the Executive Office for Immigration Review to to educate detained people about immigration rules and detention processes.
Robert Mehrabian is chairman, president and CEO of Teledyne Technologies Incorporated, an industrial technology company, and was the seventh president of Carnegie Mellon University, from 1990 to 1997. He has a bachelor’s degree as well as a doctor of science degree from the Massachusetts Institute of Technology, holds dozens of patents, and is an internationally recognized authority on advanced technologies, lending his expertise to the U.S. government and numerous Fortune 500 companies.
The National Law Journal has honored inmigration law scholar Hiroshi Motomura as one of the nation's "Best Law Professors." The headline to the profile on Professor Motomura says it all: "He Doesn't Stop Caring After Students Graduate: UCLA Law professor helps former students network and find places for themselves within the profession."
Military Times reports that a small number of immigrants living in the U.S. without legal authorizationy will have an opportunity to join the military for the first time in decades under a new Defense Department policy unveiled Thursday. The new rules will expand an existing program allowing recruiters to target foreign nationals with high-demand skills, mostly rare foreign language expertise or specialized health care training. For the first time, the program — known as Military Accessions Vital to National Interest, or MAVNI — will be open to immigrants without a proper visa if they came to the U.S. with their parents before age 16. More specifically, they must be approved under a 2012 Obama administration policy known as Deferred Action for Child Arrivals, or DACA.
The Pentagon program is capped at 1,500 recruits per year. Officials say it’s unclear how many of those might be unlawful DACA status immigrants as opposed to others who are also eligible for military service under MAVNI, including those with legal, nonpermanent visas such as students or tourists. Estimates suggest between 1.2 million and 2.1 million children, teenagers and young adults in the U.S. have no legal immigration status but meet the criteria for the DACA program. Those targeted by recruiters under the MAVNI program likely will be immigrants with language skills critical to national security, such as Arabic, Chinese, Pashto or Persian.
Sunday, September 28, 2014
Symposium: Democratizing Data on Non-Citizens and the Possibility of Legalization/Regularization without Federal Immigration Reform
Tomorrow, the Center for Migration Studies of New York (CMS) will host a conference, entitled, “Democratizing Data and Promoting Legalization/Regularization without Federal Immigration Reform.” The conference will feature the release of a variable developed by Robert Warren (Senior Visiting Fellow, Center for Migration Studies) that will allow researchers and others to tabulate data based on the legal status of non-citizens in the American Community Survey. Detailed estimates can be derived for states or for localities with population sizes of 100,000 or more. The conference will also release the results from a survey of community-based legal service providers by Tom Wong (Assistant Professor of Political Science, University of California San Diego) that attempts to estimate the percentage of unauthorized persons that may be eligible for immigration status/relief under current law. In addition, Roberto Suro (Professor, University of Southern California and Director of the Tomás Rivera Policy Institute) will discuss his research on state and local initiatives that have attempted to stabilize the lives and regularize the status of unauthorized persons and their families. Findings from each of the panels will be synthesized and published in forthcoming issues of the Journal on Migration and Human Security.
This event is free, but space is limited. Live webcast will be available here. We kindly request that you please register only if your attendance is definite. To register, please visit the registration form or email your name, title, organization and email address to firstname.lastname@example.org.
Speakers: Donald Kerwin, Executive Director, Center for Migration Studies; Democratizing the Data: A New Variable Showing Foreign-Born Census Data by Legal Status Robert Warren, Senior Visiting Fellow, Center for Migration Studies Guillermina Jasso, Silver Professor, Professor of Sociology, and Department Chair, New York University Mary Meg McCarthy, Executive Director, Heartland Alliance’s National Immigrant Justice Center Jose Pacas, Ph.D. Candidate, Applied Economics, University of Minnesota Vicky Virgin, Research Associate, New York City Center for Economic Opportunity.
Born during China’s Cultural Revolution, Ping Fu was imprisoned by government officials before she immigrated to the United States. In 1997, she co-founded Geomagic, a software company that pioneered 3D technologies to design and manufacture products at a lower cost than mass production. Since 2010, Ping has served on the National Advisory Council on Innovation and Entrepreneurship board at the White House. She published a well-received memoir called Bend, Not Break in 2012.
Saturday, September 27, 2014
Viet Dinh, born in Vuang Tau, Vietnam, 1968, is the founding partner of Bancroft PLLC and a professor of law at the Georgetown University Law Center. He also serves on the board of directors of 21st Century Fox and Revlon. From 2001 to 2003, Dinh served as U.S. Assistant Attorney General for Legal Policy, developing legal policy initiatives against terrorism, including the USA Patriot Act.
Dinh served as Assistant Attorney General of the United States in the administration of George W. Bush. He was confirmed in the Senate by a vote of 96 to 1, with the sole vote in opposition coming from Hillary Clinton. Dinh worked on issues of illicit drugs, racial profiling in federal law enforcement, exploitation of children, human trafficking, DNA technology, gun violence, and civil and criminal justice procedural reform. Dinh was involved in the selection and confirmation of 100 district and 23 appellate judges. After 9/11, Dinh conducted a comprehensive review of DOJ priorities, policies and practices, and played a key role in developing the USA PATRIOT Act and revising the Attorney General's Guidelines, which govern federal law enforcement activities and national security investigations.
Immigration Article of the Day: Immigration Reform in 2013-14: An Essay on the Senate's Bipartisan Plan, the House's Standard for Immigration Reform, Interest Convergence and Political Realities by Maria Pabon Lopez and Natasha Ann Lacoste
Immigration Reform in 2013-14: An Essay on the Senate's Bipartisan Plan, the House's Standard for Immigration Reform, Interest Convergence and Political Realities by Maria Pabon Lopez, Loyola University New Orleans College of Law, and Natasha Ann Lacoste, Loyola University New Orleans College of Law July 24, 2014 17 Harvard Latino Law Review 121 (2014) Loyola University New Orleans College of Law Research Paper No. 2014-14
Abstract: This essay assesses the prospects for immigration reform using interest convergence theory and the political realities under which Congress operates. It explains the bipartisan Senate's plan for immigration reform, including the four key areas addressed by the plan: immigration overhaul, employment verification, worker programs, and the need to create a path to citizenship for undocumented immigrants in the United States. It also discusses the House's principles for immigration reform, including the main aspects of its proposal: border security, an entry-exit system, employment verification and workplace enforcement, reforms to the current immigration system, youths, and adult undocumented immigrants currently living in the United States. The essay then tracks the time line and developments of both plans and the legislative action so far, including passage of the Bipartisan Plan in the Senate and its failure to pass in the House. It also discusses the political, economic, and faith-based appeals made to Congress to encourage immigration reform. Finally, this essay analyzes the theory of interest convergence and its application to the debate surrounding immigration reform.
Friday, September 26, 2014
Jackson Biko is a Kenyan writer. He recently applied for a visa to visit the U.K. and was denied. He then blogged about his experience, which went viral. Here are a few choice excerpts:
Last week I spent four hours applying for a visa to travel to the UK. Yesterday when I picked up my passport, with it was a letter from the Home Office denying me a visa. The letter reeked of British snobbery, delivering underhanded “insults” with words like “onus”.
There was no signature at the end of the letter. Like those cowardly guys who use anonymous twitter handles to pick fights online.
I’m not worthy of the United Kingdom because of the risk I may refuse to come back home. Because I may cling onto the next white man’s leg, as immigration drags away me to Heathrow, to toss me back to Africa on the next flight out. The lure of the United Kingdom is so overpowering that once I step on that hallowed soil, I will instantly forget my wife and two kids and all my friends. The homeboy at the Home Office isn’t convinced that I’m content with what I have at home.
But those words, “balance of probabilities” stayed with me. They will haunt me for a while. The Home Office meant that the probability of me hiding in the United Kingdom was too much for their great kingdom to fathom. That I would leave my flourishing career, my family and my friends, our sandy beaches to disappear among the unappealing misty rain soaked hills of England.
What is so intriguing about this story is that the blog post led the U.K. High Commissioner to Kenya issuing a direct response! Commissioner Turner noted that his office approves nearly 75% of visa applications from Kenya, and that most refusals relate to lack of sufficient supporting documentation. He goes on to write:
Being refused a visa is not a nice experience. At the very least, it’s an inconvenience. For some it will be much worse than this. It can feel like a personal slight on your character, impersonally delivered by a cold bureaucracy. But you are not powerless in this process.
Your own actions do greatly affect the outcome of your application, and you have the right of appeal.
An appeal? Hm. I take it the UK doesn't follow our position on "consular absolutism"?
The prolific and enduring songwriter Paul Anka began his career as a teenager, scoring his first No. 1 hit with the single “Diana,” which he wrote and performed, in 1957. After a number of hits, he turned to songwriting, composing for Buddy Holly, Connie Francis, Frank Sinatra, and penning the Academy Award-nominated theme for the 1962 film The Longest Day, in which he also appeared. In the mid-1970s, Anka returned as a recording artist with the single “(You’re) Having My Baby” and others. He remains active as both a songwriter and recording artist.
Immigration Article of the Day: Non-Refoulement in a World of Cooperative Deterrence by James C. Hathaway and Thomas Gammeltoft-Hansen
Non-Refoulement in a World of Cooperative Deterrence by James C. Hathaway, University of Michigan Law School; Melbourne Law School; University of Amsterdam and Thomas Gammeltoft-Hansen, Danish Institute for Human Rights August 1, 2014 U of Michigan Law & Econ Research Paper No. 14-016
Abstract: Developed states have what might charitably be called a schizophrenic attitude towards international refugee law. Determined to remain formally engaged with refugee law and yet unwavering in their commitment to avoid assuming their fair share of practical responsibilities under that regime, wealthier countries have embraced the politics of non-entrée, comprising efforts to keep refugees away from their territories but without formally resiling from treaty obligations. As the early generation of non-entrée practices – visa controls and carrier sanctions, the establishment of “international zones,” and high seas deterrence – has proved increasingly vulnerable to practical and legal challenges, new forms of non-entrée predicated on interstate cooperation have emerged in which deterrence is carried out by the authorities of the home or a transit state, or at least in their territory. The critical question we address here is whether such cooperation-based mechanisms of non-entrée are – as developed states seem to believe – capable of insulating them from legal liability in ways that the first generation of non-entrée strategies were not. We show that three evolving areas of international law – jurisdiction, shared responsibility, and liability for aiding or assisting – are likely to stymie many if not all of the new forms of non-entrée. Indeed, while legal liability is least clear where the sponsoring state engages in only diplomatic outreach, the provision of financial incentives, or training of personnel or provision of equipment, these options for cooperative deterrence are increasingly viewed by developed countries as unattractive given the inherent uncertainties about whether there will be a solid and dependable deterrent return. The inclination to become more directly involved in order to achieve more control and thereby to increase the likelihood of efficacy thus often pushes states to the more interventionist end of the spectrum of contemporary non-entrée. Yet it is when a state’s own personnel are deployed in aid of deterrence abroad or where joint or shared enforcement is established that legal liability becomes most clear. Powerful states are thus faced with a trade-off between the efficiency of non-entrée mechanisms and the ability to avoid responsibility under international refugee law. If, as we believe probable, the preference for more rather than less control persists, legal challenges are likely to prove successful. Law will thus be in a position to serve a critical role in provoking a frank conversation about how to replace the duplicitous politics of non-entrée with a system predicated on the meaningful sharing of the burdens and responsibilities of refugee protection around the world.
Thursday, September 25, 2014
chart from Pew Research Center
Pew Research has come out with a new poll that concludes Neither Party Gets Good Marks from Its Base for Handling Illegal Immigration.
Among the findings:
Older Republicans and Republican leaners are more critical of the party on illegal immigration and more likely to fault the party for being too willing to allow immigrants living in the U.S. illegally to gain legal status.
Hispanic Democrats are much more likely than whites or blacks to criticize the party for not being willing enough to allow legal status for people in the U.S. illegally.
Something for Congress to ponder during its work-at-home week.