Monday, September 22, 2014
Toledo worked for five years as an antique-clothing restorer at the Costume Institute at the Metropolitan Museum of Art before she made her first collection in 1985, sewing each piece by hand. Working closely with her husband, Ruben, an illustrator, her inventive, architectural designs were featured in Cosmopolitan magazine and sold in exclusive fashion stores such as Bergdorf’s and Barneys. In 2008, she won the Couture Council Award for Artistry of Fashion from the Museum at FIT. A year later, Michelle Obama wore one of her designs on Inauguration Day, bringing Toledo to mainstream attention.
Immigration Article of the Day: A Framework for Judicial Review and Remand in Immigration Law by Collin D Schueler
A Framework for Judicial Review and Remand in Immigration Law by Collin D Schueler, University of Kentucky College of Law, 2015 Denver University Law Review, Forthcoming
Abstract: This Article breaks new ground at the intersection of administrative law and immigration law. One of the more important questions in both fields is whether a reviewing court should resolve a legal issue in the first instance or remand that issue to the agency. This Article advances the novel claim that courts should use the modern framework for judicial review of agency statutory interpretations to inform their resolution of this remand question. Then, using this framework, the Article identifies when remand is and is not appropriate in immigration cases. This critical analysis, which urges a departure from conventional academic wisdom, has significant implications for the larger theoretical debate over formalism and functionalism in administrative law.
Andrea A. Saenz, Clinical Teaching Fellow, Immigration Justice Clinic, Benjamin N. Cardozo School of Law
I read last week’s WSJ Law Blog post on Professor Brian Soucek’s criticism of Second Circuit asylum opinions with interest, and a little dismay. Fair warning: I served for a year as a staff attorney at the Second Circuit, producing the types of orders Soucek says are infected with misleading law and rubber-stamped by judges. In fact, proposed summary orders are accompanied by in-depth bench memos and often revised heavily by judges and law clerks. But my concern isn’t personal as much as legal, as someone who now practices and teaches law in New York. In his critiquing small word choices in a small subset of unpublished orders, Soucek misses the broader picture of how the Second Circuit actually treats the claims of asylum seekers, which is thoughtfully and with care.
Soucek’s 2012 essay criticized select wording in unpublished court orders that referred to whether certain asylum applicants were persecuted for being members of a “particular social group.” He worried that the court’s use of words like “exhibit,” recognize,” or “identify” suggested the court thought persecutors had to be able to physically see the characteristics that made you part of the group, or else you weren’t a member.
But the evidence strongly suggests the court has never thought that. While I am all for accuracy, and hardly think the Second Circuit is infallible, these minor phrases don’t seem to be affecting the ultimate asylum decisions. Soucek himself acknowledged that the court had never “rejected an asylum claim solely because an applicant did not look a certain way.” It seems like this should matter a lot. (Although it was a Convention Against Torture case and not an asylum case, I can’t help but think of Ali v. Mukasey, in which the court read a judge the riot act for his speculative comments about a gay applicant, including assuming that no one would know he was gay if he were not seen with a boyfriend.)
More broadly, the Second Circuit’s recent asylum case law has been quite open-minded and fair. The Court has ordered the Board of Immigration Appeals to stop avoiding the issue of whether the government can bar from asylum people who were forced at gunpoint to give food or money to terrorists, on the theory that they “supported” terrorism. It has rebuked judges who applied stringent and made-up legal or evidentiary standards to asylum seekers, and found that potential victims of sex trafficking and witnesses to war crimes may well be members of “particular social groups” eligible for asylum. In short, the court is seriously engaging with asylum law in a way Soucek’s hyper-focused critique does not acknowledge.
Soucek makes much hay of the fact that three unpublished orders issued between February and June use the “visibility” language that he finds problematic, states that these statements of law are “flat wrong now,” and ominously predicts to the WSJ that asylum applicants are more likely than not to have the wrong standard applied to their cases.
These criticisms are quite misleading. Presumably Soucek is referencing new precedent the BIA issued in February, making a largely cosmetic transition from a “social visibility” standard to one named “social distinction.”  While it might have been nice for the Second Circuit to acknowledge this hot-off-the-presses update in those three orders, it was not “flat wrong” not to do so, as all three cases had been fully briefed before the new cases came out, and the Second Circuit’s job is to review the BIA, rather than instantly adopting its new precedents. Most importantly, in August the Second Circuit did in fact issue a precedent, Paloka v. Holder, discussing the new BIA cases in detail, and the court’s most recent summary orders explicitly cite the clarified “social distinction” standard. So no, asylum seekers in the Second Circuit are not being judged under the wrong law.
It is certainly true that the Second Circuit, like every other legal office I have worked at, has a database of prior work product that employees draw from, and it is true that lawyers who work from templates and examples should regularly update their resources and keep their legal writing fresh and accurate. That is good advice for all of us. However, when it comes to the evolution of asylum law, it appears that is exactly what the Second Circuit has done.
 Ali v. Mukasey, 529 F.3d 478 (2d Cir. 2008).
 Ay v. Holder, 743 F.3d 317 (2d Cir. 2014).
 Acharya v. Holder, --- F.3d ---, 2014 WL 3821132 (2d Cir. Aug. 5, 2014).
 Indrajaja v. Holder, 737 F.3d 212 (2d Cir. 2013).
 Paloka v. Holder, --- F.3d ---, 2014 WL 3865992 (2d Cir. Aug. 7, 2014).
 Gashi v. Holder, 702 F.3d 130 (2d Cir. 2012).
 Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014); Matter of W-G-R-, (BIA 2014).
 Paloka, 2014 WL 3865992 at *4-7.
 See Kuzmenko v. Holder, --- F.App’x ---, 2014 WL 4627631 (2d Cir. Sept. 17, 2014); Gonzales-Reyes v. Holder, --- F.App’x ---, 2014 WL 2853569 (2d Cir. June 24, 2014).
Sunday, September 21, 2014
Two New York-based museums are displaying exhibits that feature Chinese Americans, including their struggles with racially exclusionary immigration laws.
"Chinese American: Exclusion/Inclusion chronicles the complex history of the Chinese in America, from the early days of the China trade to the history of Chinese immigration and the life of Chinese Americans. The title encapsulates the challenges of immigration, citizenship, and belonging that shaped both the Chinese American experience and the development of America as a nation. Americans desired trade with China even before independence, but in 1882 the nation’s borders shut for the first time to bar most Chinese. Under the Chinese Exclusion Act, all Chinese entering or re-entering the country had to prove their right to do so. This not only affected many aspects of life for American Chinese, but also significantly influenced US immigration policy. The act was repealed sixty years later during World War II, but immigration restrictions remained severe until reform in 1965."
Additional information about the exhibit, which will be available between September 26, 2014 and April 19, 2015, may be found here.
"The Museum of Chinese in America (MOCA) will present its groundbreaking exhibition examining Chinese American identity, Waves of Identity: 35 Years of Archiving. The title of the exhibit was inspired by a Chinese proverb, “Each wave of the Yangtze River pushes at the wave ahead.” As a metaphor for Chinese American history, the waves represent successive generations of immigrants unearthing the histories of those that came before them, and in the process of discovery, addressing pertinent issues of identity, memory and history."
Additional information about this exhibit may be found here.
Feminists at the Border by Jennifer M. Chacón, University of California, Irvine School of Law; University of Oxford - Border Criminologies August 27, 2014 Denver University Law Review, Vol. 91, No. 1, 2013, pp. 85-108 UC Irvine School of Law Research Paper No. 2014-44
Abstract: This essay was written in honor of Ann Scales, for her memorial symposium. Ann Scales was a critic of militarism. She challenged her readers to engage in "a radical critique of all of the excuses for and covers for the use of force — that is, a radical critique of militarism — in whatever context it appears." She also cautioned that this critique is perhaps most important in contexts where the influence of militarism is less obvious. This Essay takes up Scales's challenge to call out and critique militarism, and to do so in a context where the influence of militarism may be less obvious, by focusing on immigration law and policy. Part I of this Essay summarizes Scales's critique of militarism. Part II uses Scales's analysis of Nguyen v. Immigration and Naturalization Service, which involved a failed sex-based equal protection challenge to a citizenship law, as a starting point for tracing out the broad influence of militarism on immigration law doctrines. Part III explores the obvious ways in which militarized immigration policies legitimate state-sanctioned violence, using the Sixth Circuit's 2013 decision in the case of Villegas v. Metro Government of Nashville as an illustrative example. Part IV argues the less obvious point that this kind of violent enforcement is used in the service of an immigration regime that is structured to reinforce gender hierarchies more broadly.
A few weeks ago, the Los Angeles Times reported on a new visa development. "Fueled by demand from wealthy Chinese nationals, an immigration program that exchanges visas for large investments in U.S. businesses has run out of its allotment of visas for the first time in its 24-year history. A State Department official said this week that no more EB-5 visas will be issued until the beginning of the 2015 fiscal year in October and that procedural changes planned for next year will bring greater delays in obtaining visas. Some people involved in the program say that the time it takes to get new visas could increase from a few months to up to two to three years. EB-5 investor visas reach record high EB-5 awards visas to immigrants who invest $500,000 to $1 million in a U.S. business. Applicants who can prove that their investment has created at least 10 jobs get permanent green cards."
Saturday, September 20, 2014
The Family That Is Counted Together Stays Together: How To Eliminate Immigrant Visa Backlogs By Gary Endelman and Cyrus D. Mehta offers a quick fix that President Obama could implement toeliminate immigrant visa backlogs that require prospective immigrants to wait many years to come lawfully to the United States:
"There is nothing in the Immigration and Nationality Act that requires each derivative family member to be counted on an individual basis against the worldwide and country caps. That being so, President Obama tomorrow can issue an executive order providing that this long-established practice be stopped. That single stroke of the pen would revolutionize United States immigration policy and, at long last, restore balance and fairness to a dysfunctional immigration system badly in need of both. If all members of a family are counted together as one unit, rather than as separate and distinct individuals, systemic visa retrogression will quickly become a thing of the past."
Asylum Access Ecuador won a landmark victory last week when Ecuador’s Constitutional Court struck down key provisions of a restrictive refugee law.
Since 2012, Decree 1182 has imposed serious barriers for refugees seeking safety in Ecuador, including a requirement that refugees file paperwork within 15 days of arrival – often just days after receiving a death threat or seeing a family member murdered. The decree also required refugees to prove they were individually targeted for persecution, rather than fleeing generalized violence.
Most refugees were unaware of the 15-day filing requirement, and the government provided no notice at the border. Refugees who failed to file on time were denied legal status, leaving them unable to work and at risk of deportation back to sometimes life-threatening danger.
With the September 15 decision, refugees now have three months to file petitions for legal status, and 15 to 30 days to appeal a denial (up from 3 to 5 days under Decree 1182). Friday’s decision also extends protection to refugees fleeing generalized violence, reinstating a legal definition set forth in the Cartagena Declaration, a regional human rights document.
Posted: 09/09/2014 12:44 pm EDT Updated: 09/09/2014 12:59 pm EDT Share 49 Tweet 6 Email 15 Comment 0 Share on Google+ With Maksim Wynn, Analyst at the UCLA North American Integration and Development Center This post is the executive summary of a longer report released by the UCLA North American Integration and Development Center. Download the full report for more in-depth and econometric analyses. Although violence in Central America contributes to teh migration, America's economic revovery is playing an important role.
Residential segregation is one of the most visible side effects of urbanization and immigration. While ethnic enclaves can provide important social and economic resources for newcomers, such segregation can become problematic if it persists across generations and is associated with indicators of disadvantage.
A pair of reports from the Migration Policy Institute’s Transatlantic Council on Migration addresses segregation, which occurs for a number of reasons ranging from housing market discrimination to decisions on the part of the majority population about where to live.
In Residential Segregation: A Transatlantic Analysis, sociologist John Iceland explains that immigration-related segregation may differ from the segregation of long-standing minorities. New arrivals often settle in ethnic enclaves because of social networks that lead them there, but they (or their children) may move on once they have improved their socioeconomic status and learned about other neighborhoods. Sometimes, however, immigrant families become stuck in isolated communities with lower-quality housing and limited opportunities, exacerbating other problems such as poor health or unemployment.
The report examines policies to address residential segregation, which fall into two main categories: those that seek to reduce segregation directly, such as housing-related interventions; and those that target integration more broadly by attempting to improve socioeconomic outcomes or nurturing relations between groups. A central difference between the United States and Europe, Iceland notes, has been that U.S. policymakers focus on providing people with the tools to escape disadvantaged neighborhoods, while European policymakers seek to improve these neighborhoods.
A second report, Rotterdam: A Long-Time Port of Call and Home to Immigrants, points out that the city has been at the forefront of thinking about how to reduce residential segregation, as well as to improve social cohesion and bolster socioeconomic outcomes for immigrants. The authors, Han Entzinger and Godfried Engbersen of Erasmus University, argue that the recent rise in temporary forms of migration to Rotterdam presents new challenges for a city integration policy that has traditionally focused on permanent residents. To ensure the successful integration of the city’s long-term and temporary migrant populations, they conclude, Rotterdam will have to improve the quality of its housing and educational offerings, as well as invest in new industries and jobs.
These reports conclude the MPI Transatlantic Council on Migration series, “Cities and Regions: Reaping Migration’s Local Dividends.” Earlier reports in the series and a conclusory Council Statement can be found here.
CLINIC has issued this helpful FAQ on the The Impact of Unaccompanied Children on Local Communities - Frequently Asked Questions.
Rodrigo Dominguez Villegas analyzes the dangers of modern Central American migration. Mexico has long been accused of turning a blind eye to Central American migrants traveling through the country en route to the United States. With the recent unaccompanied child migration crisis garnering major U.S. public and policymaker attention, the trains that have served as unofficial conduits for some of this migration have come under scrutiny, prompting the Mexican government to take action. As many as half a million Central American immigrants annually hop aboard freight trains colloquially known as “La Bestia,” or the beast, on their journey to the United States. The cargo trains, which run along multiple lines, carry products north for export. As there are no passenger railcars, migrants must ride atop the moving trains, facing physical dangers that range from amputation to death if they fall or are pushed. Beyond the dangers of the trains themselves, Central American migrants are subject to extortion and violence at the hands of the gangs and organized-crime groups that control the routes north.
The startling and disturbing fact is that two-thirds of the world's refugee population lives in an intractable state of limbo, currently spending an average of 20 years in exile. Traditionally, host governments have responded to refugee influxes and long-term displacement through encampment policies and/or the restriction of human rights, taking the view that if human rights are acknowledged and if refugees are permitted to work legally, they will disrupt labor markets and social systems. This assumption is not supported by the facts, and the result of restricting work rights in policy and practice has meant that the skills, capacities and potential economic contributions of refugees have been greatly overlooked.
Asylum Access and the Refugee Work Rights Coalition recently released the report, "Global Refugee Work Rights Report: Taking the Movement from Theory to Practice" which debunks popular misconceptions surrounding work rights, offering compelling legal and economic arguments to extend refugees the right to access formal labor markets.
The Member States of the United Nations by September 2015 will have negotiated a set of sustainable development goals (SDGs) that are ambitious in their sweep, focused on ending poverty and hunger, combating climate change, making cities more sustainable, and improving health and education. These goals will frame the United Nations' post-2015 development agenda to replace the Millennium Development Goals (MDGs), which expire at the end of 2015. While the MDGs did not contain any target setting on migration and development, a draft of the SDGs produced by an Open Working Group composed of UN Member States does include a focus on improving the quality of the migration process within the broader goal of reducing inequality within and among countries.
In Integrating Migration into the Post-2015 United Nations Development Agenda, author Lars Johan Lönnback examines the role of migration within the development agenda, suggesting that inclusion of clear migration targets could provide substantial benefits to the world’s 232 million migrants as well as their children.
Check out the SF Immigrant Film Festival 2014. Sit back and enjoy 3 Short Movie Marathons:
Saturday, Oct.4 at La Peña Cultural Center - Berkeley
Sun. Oct. 5 at Mission Cultural Center, MCCLA-San Francisco
Thursday, Oct. 9 at City College of San Francisco, Mission Campus
A new report from the Migration Policy Institute's National Center on Immigrant Integration Policy, Diploma, Please: Promoting Educational Attainment for DACA- and Potential DREAM Act-Eligible Youth, examines the impact of DACA and potential future DREAM Act-like education attainment provisions on unauthorized immigrant youth. The report provides a sociodemographic snapshot of the population and adult education system capacity, and explores the education-success challenges for three key DACA subgroups: individuals under age 19, those 19 or older without a high school diploma or GED, and those 19 and older with a high school diploma or GED as a terminal degree. It concludes with recommendations for actions that policymakers; leaders in the secondary, postsecondary, adult education, and workforce training fields; and other stakeholders can take to support educational attainment by these youth.