Sunday, November 30, 2014
I'll be blogging this week from Artesia, New Mexico. I'm here as part of AILA's Artesia Pro Bono project.
I arrived in town just before sunset. The radio was playing The Eagles' Hotel California - I kid you not.
I spent the evening getting a very intense orientation from the wonderful on-the-ground (OTG) team here in Artesia. I was particularly pleased to hear the soothing and familiar voice of immprof Stephen Manning - welcoming us to the OTG team in an innovation lab video, naturally, with psych-up background music.
I have two bond hearings and two continuances to prep for tonight and tomorrow morning. And I expect to meet with additional clients about their bond cases. AILA is trying to secure bond for as many of the Artesia detainees as possible - all of whom are hoping to avoid transfer to Karnes.
Another aspect of the president's recent immigration action is to consider expanding parole for the families of U.S. Armed Forces members and enlistees.
the immigrant parents, spouses, and children of current military members on active duty or who serve in the Selected Reserve of the Ready Reserve, or veterans of such service. [Under PIP, the] USCIS should generally allow such immigrant relatives to be granted an immigration “parole” so that they may adjust to a lawful immigration status while in the United States. Previously, some USCIS offices had required these military family members to leave the United States in order to obtain a lawful immigration status, but the family members’ departure from the United States often triggered a lengthy separation—sometimes more than ten years—because of overseas visa processing rules.
The November 20 memo authored by Secretary of Homeland Security Jeh Johnson directs the USCIS to work with the Department of Defense to issue new policies for PIP that would potentially cover the relatives of USCs or LPRs who "seek to enlist" in the military, though this phrase is unexplained.
The expansion would not cover others types of migrants who might be eligible to enlist such as individuals from America Samoa or Swains Island (who are not U.S. citizens but U.S. nationals), participants in the Military Accessions Vital to the National Interest (MAVNI) program, or DACA recipients.
The memo also directs the USCIS
to consider the availability of deferred action, on a case-by-case basis, to those now undocumented family members of U.S. military service members and veterans who would be otherwise eligible for parole-in-place, but who were inspected and lawfully admitted to the United States.
As outlined in detail by the Department of Homeland Security, President Obama's recently announced immigration plan has quite a few components. One of the immigration initiatives is "Expand Deferred Action for Childhood Arrivals (DACA) Program." Specifically, the DHS memo explains that
"We will expand eligibility for DACA to encompass a broader class of children. DACA eligibility was limited to those who were under 31 years of age on June 15, 2012, who entered the U.S. before June 15, 2007, and who were under 16 years old when they entered. DACA eligibility will be expanded to cover all undocumented immigrants who entered the U.S. before the age of 16, and not just those born after June 15, 1981. We will also adjust the entry date from June 15, 2007 to January 1, 2010. The relief (including work authorization) will now last for three years rather than two." (emphasis added).
In a memorandum on "Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents" to the heads of Immigration and Customs Enforcement, Citizenship and Immigration Services, and Customs and Border Protection, DHS Secretary Jeh Johnson explains the concept of prosecutorial discretion and states that
"I am now expanding certain parameters of DACA and issuing guidance for case-by-case use of deferred action for those adults who have been in this country since January 1, 2010, are the parents of U.S. citizens or lawful permanent residents, and who are otherwise not enforcement priorities . . . . The reality is that most individuals in the categories set forth below are hard-working people who have become integrated members of American society. Provided they do not commit serious crimes or otherwise become enforcement priorities, these people are extremely unlikely to be deported given this Department's limited enforcement resources-which must continue to be focused on those who represent threats to national security, public safety, and border security. Case-by-case exercises of deferred action for children and long-standing members of American society who are not enforcement priorities are in this Nation's security and economic interests and make common sense, because they encourage these people to come out of the shadows, submit to background checks, pay fees, apply for work authorization . . . , and be counted."
The memo announces the following specific measures:
-- Remove age cap: DACA will apply to all otherwise eligible immigrants who entered the United States by the requisite adjusted entry date before the age of sixteen (16), regardless of how old they were in June 2012 or are today. The current age restriction excludes those who were older than 31 on the date of announcement (i .e., those who were born before June 15 , 1981 ). That restriction will no longer apply.
-- Extend DACA renewal and work authorization to three-years. The period for which DACA and the accompanying employment authorization is granted will be extended to three-year increments, rather than the current two-year increments. Adjust the date-of-entry requirement. In order to align the DACA program more closely with the other deferred action authorization outlined below, the eligibility cut-off date by which a DACA applicant must have been in the United States should be adjusted from June 15, 2007 to January 1 , 2010.
In further expamding deferred action, Secretary Johnson
"directed USCIS to establish a process, similar to DACA , for exercising prosecutorial discretion through the use of deferred action, on a case-by-case basis, to those individuals who:
• have, on the date of this memorandum, a son or daughter who is a U.S. citizen or lawful permanent resident;
• have continuously resided in the United States since before January 1 , 2010;
• are physically present in the United States on the date of this memorandum , and at the time of making a request for consideration of deferred action with USCIS;
• have no lawful status on the date of this memorandum;
• are not an enforcement priority as reflected in the November 20 , 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum ; and
• present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.
This component of the Obama initiative includes a modest extension of the current DACA program, most notably eliminating the age cap of 31 years on DACA eligibility (which precluded relief for undocumented immigrants like Sergio Garcia, now licensed to practice law in California) and grenting deferred action and work authorization for 3, not 2, years.These are significant changes to the recipients of DACA relief.
The memorandum also outlnes the expanded deferred action program for the undocumented parents of U.S. citizens and lawful permanent residents. This new program will be discussed in a subsequent post. The new deferred action program will benefit the many undocumented parents of U.S. citizen children born in the United States. A considerable number of families today have what are called mixed immigration statuses, with some parents undocumented with citizen children born in the United States.
There was one notable non-change to the deferred action rules that received considerable attention. There had been talk of extending DACA relief to the parents of DACA recipients. The Office of Legal Counsel concluded that extension of deferred action to the parents of DACA recipients might not be lawful and it is not part of the President's initiative.
Saturday, November 29, 2014
As Kevin noted yesterday, part of President Obama's immigration action concerns high-skilled workers. Two aspects of that plan merit further examination: visa portability and employment opportunities for spouses.
First, the employment-based visa system currently restricts the ability of workers to change jobs without jeopardizing pending applications for lawful permanent resident (LPR) status. Jen Johnson's November 20 memo identifies the root of this problem: Workers can change jobs only if the new jobs is in a "same or similar" occupational classification as their old job. Secretary Johnson, quite reasonably, calls for additional agency guidance on this language to ensure that workers can, for example, accept promotions within their field without jeopardizing an LPR application.
In a different Johnson memo, and included in a White House Fact Sheet on the immigration action, is discussion of spouses of highly-skilled workers. The Fact Sheet says: "DHS is finalizing new rules to give certain H-1B spouses employment authorization as long as the H-1B spouse has an approved LPR application."
Indeed, the Obama administration had announced plans to allow spouses of H1-B holders to work back in May 2014. The idea behind allowing spouses of H1-B holder to work is, as DHS Secretary has Mayorkas stated, to "encourage highly skilled, specially trained individuals to remain in the United States" and to maintain U.S. "competitiveness with other countries that attract skilled foreign workers and offer employment authorization for spouses." While the rules were proposed in May, they haven't yet been finalized. Apparently, they will be soon.
As Kevin noted, these are "modest attempts... to marginally improve the ability of high-skilled workers to immigrate and remain in the United States." Nonetheless, it's important to understand that the president's immigration action is not limited to unauthorized migration - he is taking some steps concerning lawful migration.
Neil MacLucas and John Revill in the Wall Street Journal report that "Switzerland will vote Sunday on an initiative to severely restrict immigration growth, the second time this year the country has gone to the polls over whether to curb an influx of foreigners. Swiss voters will be asked if they approve of limiting net annual immigration to 0.2% of the country’s total population. If passed, net immigration growth to Switzerland will be capped at roughly 16,000 people per year, compared to the average of almost 70,000 foreigners per year over the last decade. The Swiss Association of Ecology and Population, which collected the signatures necessary to force the vote, says the cap is needed because immigration is threatening Switzerland’s natural resources and taxing the nation’s public transportation and housing infrastructure. The ballot initiative is known as Ecopop, shorthand for the name of the group."
In February, Swiss voters approved a referendum that requires the country to re-introduce quotas on migrants from the European Union. That measure, runs afoul of a treaty between Switzerland and the European Union that forbids immigration quotas.
UPDATE (11/30): Bloomberg reports that Swiss voters rejected the referendum to introduce strict immigration quotas. Voters turned down the initiative known as Ecopop by 74 percent to 26 percent, according to projections by Swiss television SRF. The measure “Halt Overpopulation -- Preserve the Natural Environment” would have limited annual immigration to just 0.2 percent of the country’s permanent resident population.
In an op/ed in the New York Daily News, Robert Morgenthau, the legendary former New York City district attorney,applauds President Obama's executive action on immigration and calls for more, listing these specific steps.
"Second, the administration should exercise greater oversight of Immigration and Customs Enforcement, which continues to vigorously detain and remove immigrants who have no criminal convictions or were found guilty of only minor infractions."
"Third, because many detainees are not criminals, there is no reason the administration should keep everyone locked up for weeks, months or even years at a cost of at least $120 per day."
Friday, November 28, 2014
As fleshed out in some detail by the Department of Homeland Security, President Obama's recently announced immigration plan has quite a few components. One item on the list of immigration initiatives is "Support High-skilled Business and Workers. DHS will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and strengthen and expand opportunities for students to gain on-the-job training. For example, because our immigration system suffers from extremely long waits for green cards, we will amend current regulations and make other administrative changes to provide needed flexibility to workers with approved employment-based green card petitions."
"I hereby direct the new policies and regulations outlined below. These new policies and regulations will be good for both U.S. businesses and workers by continuing to grow our economy and create jobs . They will support our country's high-skilled businesses and workers by better enabling U.S . businesses to hire and retain highly skilled foreign-born workers while providing these workers with increased flexibility to make natural advancements with their current employers or seek similar opportunities elsewhere. This increased mobility will also ensure a more-level playing field for U.S. workers. Finally, these measures should increase agency e f ficiencies and save resources."
The memorandum identifies the following steps to be taken:
Modernizing the Employment-Based Immigrant Visa System
Reforming "Optional Practical Training" for Foreign Students and Graduates from U.S. Universities
Promoting Research and Development in the United States Bringing Greater Consistency to the L-lB Visa Program
Increasing Worker Portability
The details in the memorandum offer modest attempts at regulatory planning and reform to marginally improve the ability of high-skilled workers to immigrate and remain in the United States.
There has been much in the news about the recent events in Ferguson, Missouri. Here is a letter on that subject posted on the Society of American Law Tecahers website:
November 21, 2014
The Society of American Law Teachers (SALT) calls for the upholding of the rule of law in relation to the death of Michael Brown. Michael Brown’s death and the subsequent protests in Ferguson remind us of the consequences when the community loses faith and trust in America’s policing and judicial systems. SALT is concerned that violence by the police against unarmed Black people is becoming increasingly common. The actions of the police in Ferguson and the community reaction are a microcosm of the inequalities and profound mistrust that pervade many communities around the country that must be addressed.
SALT and its members are committed to ensuring that the system of justice in the United States operates effectively in a manner that affirms the principles of equality and justice. In keeping with our mission, and as a community of engaged law professors, we would like to offer the support and expertise of our members to help address systemic inequities that erode faith in our justice system and to facilitate discussion, dialogue, and concerted action to address the issues that Michael Brown and the Ferguson protests have raised at the local and national level. We must ensure that our system of justice gives historically subordinated populations assurance that the laws are being executed fairly. By acting in solidarity with the people of Ferguson, we seek to promote adherence to and the sanctity of civil and human rights principles in the United States.
In the wake of the events in Ferguson, we call for:
(1) upholding the principles of equality before the law;
(2) implementation of a system of police accountability, oversight and integrity regardless of race, class or social standing;
(3) safeguarding the right to speak freely and peacefully protest and acting to quell excessive police force that inhibits the exercise of these fundamental rights; and
(4) working to eliminate divisive policing and justice policies and practices that demean people of color and view them as objects of threat and fear.
Abstract: The paper examines the way states use space in order to escape human rights obligations. In particular, I focus on one method of architecting space – the building of border walls as an immigration control policy. In recent years, such walls have been installed at an unprecedented rate in order to control inflow of irregular immigrants into wealthy countries. Examples include the US-Mexico Wall, the Israel-Egypt Fence and the two fences that Spain has erected in North Morocco to close off its territories – and thereby Europe itself – from Africa. At the moment, these walls are left largely unregulated by human rights courts and quasi-judicial bodies. But they present adjudicatory institutions with a choice between two contradictory doctrinal traditions: (i) a statist framework that assigns to the state sole authority over immigration, and (ii) a human rights tradition that begins from considerations of the fundamental rights of all individuals and that is external to states’ interests. The former is about exclusion: a state can use a wall built on its own territory to control entry and access to services. The latter is about universal rights that are divorced from territoriality; a state cannot erect a wall to sidestep its obligations under human rights and refugee law. Both systems can be justified, but they cannot easily coexist. Faced with this irreconcilable tension, I use a systematic analysis of jurisprudence on the international, regional and national level to map out three possible approaches that a human rights court can take for the regulation of such border walls. I argue that none of the approaches can be normatively supported. But the current status quo – i.e. leaving walls unregulated – is itself normatively worrisome: it punishes the right people (those whose substantial circumstances merit protection) and rewards the wrong people (those who have the capability to enter, whether due to age, resources, or gender, but whose predicament may not actually call for protection).
Thursday, November 27, 2014
Unaccompanied children are represented by an attorney in only about one-third (32%) of 63,721 cases pending in Immigration Court as of October 31, 2014, according to the latest data from TRAC. Some 43,030 juveniles have not as yet been able to hire an attorney to assist them or to find pro bono representation. For the 21,588 children's cases filed and already decided since the surge of unaccompanied minors from Central America began three years ago, only 41 percent had representation.
Outcomes for unaccompanied children whose cases were filed and decided during the past three years were examined. The preiod from FY 2012 through FY 2014 was selected since it covers the recent surge in cases involving unaccompanied minors from Central America that began in FY 2012. With the updated data current through the end of October 2014, court records show that over twenty thousand of these cases have already been decided. Here are the results for children arriving during this latest surge:
Outcome if attorney present. In almost three out of four (73%) of the cases in which the child was represented, the court allowed the child to remain in the United States. The child was ordered removed in slightly more than one in ten (12%) of these cases. And in the remaining 15 percent the judge entered a "voluntary departure" (VD) order. (While with a VD order the child is required to leave the country, the child avoids many of the more severe legal consequences of a removal order.)
Outcome if no attorney. Where the child appeared alone without representation, only 15 percent were allowed to remain in the country. All the rest were ordered deported — 80 percent through the entry of a removal order, and 5 percent with a VD order.
Immigration Article of the Day: The Protection of Irregular Immigrants’ Rights in the Jurisprudence of the Inter-American Court of Human Rights: Developments and Challenges by Ana Beduschi,
Abstract: This article discusses the contribution of the Inter-American Court of Human Rights to the development of a human rights-based approach to international immigration law. In the late 1990s the Inter-American Court of Human Rights witnessed a period of extraordinary judicial activism. It pushed the boundaries of human rights to the realm of international immigration, including the protection of rights of irregular immigrants. Accordingly, this article argues that the Inter-American Court has the potential to promote an extended form of protection of irregular immigrants’ rights in Latin America. It also suggests that principles developed by the Inter-American jurisprudence have the potential to effect changes in the European sphere. It is, however, submitted that the Inter-American system still has many challenges to overcome, notably concerning compliance with judicial decisions and effectiveness of the protection of rights. These challenges, which are not purely legal or institutional, are strongly dependent on the cultural, political and societal Latin American context. They may therefore cast some shadow on the development of a stronger humanized approach to international immigration.
President Obama's immigration initiatives have been somethinbg of a full employment act for immigration law professors. ImmigrationProf has posted many op/eds. articles, and other commentary on teh President's actions. In addition, catching the attention of the national news, a letter signed my 135 immigration law professors states:
"We write as scholars and teachers of immigration law who have reviewed the executive actions announced by the President on November 20, 2014 . It is our considered view that the expansion of the Deferred Action for Childhood Arrivals (DACA) and establishment of the Deferred Action for Parental Accountability (DAPA) programs are within the legal authority of the executive branch of the government of the United States. To explain, we cite federal statutes, regulations, and historical precedents. We do not express any views on the policy aspects of these two executive actions."
In a Balkinization symposium on "Administrative Reform of Immigration Law," many immigration professors (imcluding Adam Cox, Cristina Rodriguez, David Martin. Alina Das, and Steve Legomsky) and other law professors weigh in on the Obama immigration initiatives (with particular focus on the Office of Legal Counsel's memorandum on the lawfulness of the President's immigration initiatives (and finding that extension of deferred action to the parents of Deferred Action to Childhood Arrival recipients might not be lawful).
If you're looking for a special book to enjoy with your little readers this holiday, look no further than The Thanksgiving Door by Debby Atwell.
This picture book begins with an older couple (Anna and Ed) alone on Thanksgiving. They accidentially burn their holiday meal and so end up looking for a place to eat out.
They find a restaurant with an open door but noone there. It turns out the family of restauranteurs - apparently new immigrants - are in the kitchen, hiding. They had planned to be closed that day so they could have their own party. But the grandmother of the family insists the couple should be allowed to stay.
"And that's how Ann and Ed found themselves guests of honor as this family celebrated their first Thanksgiving in the New World Cafe."
What comes next is a Thanksgiving celebration that blends American traditions with "old country" touches. There is food and dancing. And lifelong friendships are made. Leaving Anna and Ed thankful for their burned dinner!
Wednesday, November 26, 2014
The New York Times has an interview with Professor Joseph Carens of the University of Toronto: When Immigrants Lose Their Human Rights.
Carens is the author of The Ethics of Immigration and Immigrants and the Right to Stay, among numerous other publications. (I'm going to geek out here and just say that Carens' work has been incredibly influential on my own.)
In the New York Times interview, Carens discusses the president's recent immigration action.
He emphasizes that the beneficiaries of DACA and DAPA have "moral claims to legal status as residents and, eventually, to citizenship itself." For, "[l]iving and working in a society makes immigrants members of that society over time, even if they arrived and settled without permission."
Tuesday, November 25, 2014
International Migration Outlook 2014 Publication Date : 01 Dec 2014
This flagship publication on migration analyses recent developments in migration movements and policies in OECD countries and selected non-OECD countries. This edition also contains two special chapters on "The labour market integration of immigrants and their children: developing, activating and using skills" and "Managing labour migration: Smart policies to support economic growth". It also includes Country notes and a Statistical Annex. This special edition is launched at the occasion of the High-level Policy Forum on Migration (Paris, 1-2 December 2014).
As fleshed out in some detail by the Department of Homeland Security, President Obama's recently announced immigration plan has quite a few components. One item on the list of immigration initiatives is "Revise Removal Priorities":
"DHS will implement a new department-wide enforcement and removal policy that places top priority on national security threats, convicted felons, gang members, and illegal entrants apprehended at the border; the second-tier priority on those convicted of significant or multiple misdemeanors and those who are not apprehended at the border, but who entered or reentered this country unlawfully after January 1, 2014; and the third priority on those who are non-criminals but who have failed to abide by a final order of removal issued on or after January 1, 2014. Under this revised policy, those who entered illegally prior to January 1, 2014, who never disobeyed a prior order of removal, and were never convicted of a serious offense, will not be priorities for removal. This policy also provides clear guidance on the exercise of prosecutorial discretion."
The Department of Homeland Security ( DHS) and its immigration components - CBP, ICE, and USCIS - are responsible for enforcing the nation's immigration laws. Due to limited resources, DHS and its Components cannot respond to all immigration violations or remove all persons illegally in the United States. As is true of virtually every other law enforcement agency, DHS must exercise prosecutorial discretion in the enforcement of the law. And, in the exercise of that discretion, DHS can and should develop smart enforcement priorities, and ensure that use of its limited resources is devoted to the pursuit of those priorities. DHS's enforcement priorities are, have been, and will continue to be national security, border security, and public safety. DHS personnel are directed to prioritize the use of enforcement personnel, detention space, and removal assets accordingly.
In the immigration context, prosecutorial discretion should apply not only to the decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad range of other discretionary enforcement decisions, including deciding: whom to stop, question, and arrest; whom to detain or release; whether to s ettle, dismiss, appeal, or join in a motion on a case; and whether to grant deferred action, parole, or a stay of removal instead of pursuing removal in a case. While DHS may exercise prosecutorial discretion at any stage of an enforcement proceeding, it is generally preferable to exercise such discretion as early in the case or proceeding as possible in order to preserve government resources that would otherwise be expended in pursuing enforcement and removal of higher priority cases. Thus, DHS personnel are expected to exercise discret ion and pursue these priorities at all stages of the enforcement process - from the earliest investigative stage to enforcing final orders of removal- subject to their chains of command and to th e particular responsibilities and authorities applicable to their specific position."
The 2011 John Morton memo on prosecutorial discretion is rescinded and superseded. The immigration enforcement priorities are now stated as:
Priority 1 (threats to national security, border security, and public safety)
Priority 2 (misdemeanants and new immigration violators)
Priority 3 (other immigration violations)
The memorandum discusses "Execising Prosecutorial Discretion" and states that such discretion "requires DHS personnel to exercise discretion based on individual circumstances. . . . In making such judgments, DHS personnel should consider factors such as: extenuating circumstances involving the offense of conviction; extended length of time since the offense of conviction; length of time in the United States; military service; family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal proceedings; or compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriusly ill relative. These factors are not intended to be dispositive nor is this list intended to be exhaustive. Decisions should be based on the totality of the circumstances."
The enforcement guidelines focus on public safety and are more focused than the types of removals seen under the Secure Communities program, which is now abolished. This might result in removals of more serious criminal offenders than currently is the practice. The guidelines also make it clear that in exercising prosecutorial discretion, the individual circumstances of the immigrant should be considered.
I had the opportunity to discuss the President's immigration initiatives on Capital Public Radio yesterday morning. Although the press reports strongly suggest that the President Obama's initiatives may border on the unconstitutional (which apparently is more newsworthy than characterizing the actions as in the mainstream), it seems to me that the rather modest steps taken by the President with respect to deferred (i.e., temporary) action, ending Secure Communities, focusing scarce enforecment resources on "felons, not families," etc., are well within the power of the Executive Branch and similar to immigration actions taken by previous Presidents. As a recent letter from a group of law professors suggests and another letter from 135 immigration law professors opines (as well as previous letters), the vast majority of law professors seem to agree.
Apparently seeking to stir the pot as he did in questioning birthright citizenship in a 1985 book, Yale's Peter Schuck has made the jarring claim in the New York Times that President Obama might be subject to impeachment for committing high crimes and misdemeanors in the immigration initiatives. That extreme position, which one would expect more from a political partisan than a law professor, unfortunately plays into the efforts to provoke controversy and polarize the public.
There is room for reasoned debate about whether the President's initiatives make sense as a matter of policy and politics. However, the drumbeat that executive actions of dubious legality have been taken, calls for impeachment and government shut downs, and the like are unlikely to lead to productive debate about the proper policies to pursue with respect to immigration. Until the nation can have that discussion, it is hard to see how Congress will be passing any kind of comprhensive immigration enforcement measure.