Tuesday, March 31, 2015
Here is the latest from AP on the latest U.S./Mexico border death trap.
Bodies have recently been seen floating in the Rio Grande. There has been a spike in drownings since October. Immigrants, desperate to avoid detection at a time of increased patrols, are choosing more dangerous and remote crossings into South Texas.
“The canals and areas of the river they are trying to traverse, they typically weren’t trying to go across before,” said Raul L. Ortiz, deputy chief of Rio Grande Valley sector. His sector has already seen at least 16 drownings in nearly six months, nearly a third of them in the canals. The tally is only five short of the number of deaths reported from October 2013 to September, when a historic surge of immigrant women and children were crossing into South Texas. Though illegal crossings have decreased dramatically from last summer, more law enforcement officials are patrolling the border to deter another wave of immigrants.
Selena Quintanilla-Pérez, known by as Selena, was an American singer. Called the Queen of Tejano music, her contributions to music and fashion made her one of the most celebrated Mexican American entertainers of the end of the 20th century. She was named the "top Latin artist of the '90s" and "Best selling Latin artist of the decade" by Billboard magazine.
Yesterday, the U.S. Department of Justice filed a brief in the appeal of the preliminary injunction barring the implementation of President Obama's expanded deferred action program in Texas v. United States. Oral argument on the motion to stay the injunction will be held on April 17.
The brief goes to the merits of the entry of the preliminary injunction and is not limited to the stay motion. It challenges the standing of the states and argues that the plaintiffs are unlikely to prevail on the merits of the Administrative Procedure Act notice and comment claim. The brief further claims that the balance of harms and the public interest weigh strongly against the preliminary injunction. Lastly, the Department of Justice argues that the injunction is overbroad in light of the fact that 24 states, the District of Columbia, and U.S. territories are not party to the action.
The opening paragraphs of the brief provide a sense of the DOJ's arguments:
"This case involves a challenge brought by Texas and other States to enjoin — nationwide— enforcement policies that the Secretary of Homeland Security adopted to manage the government’s limited immigration enforcement resources and prioritize the removal of aliens who threaten national security or public safety, have committed crimes, or recently crossed the border unlawfully. The challenged policies advance that critical national effort by, among other things, establishing guidelines for deferring action on the removal of other aliens who are not priorities, pose no such threats, and have longstanding and close family ties in the United States. The policies are a quintessential exercise of prosecutorial discretion, an executive function that is not subject to judicial review. And they are an exercise of authority that Congress expressly granted to the Secretary to establish policies for enforcement of the immigration laws, a uniquely federal domain into which States may not intrude. See Arizona v. United States, 132 S. Ct. 2492 (2012).
The plaintiff States disagree with the Secretary’s exercise of enforcement discretion and have invoked the judicial power to countermand it. But their claims are, at bottom, policy disagreements that must be resolved through the political process; they are not an Article III case or controversy."
Immigration Article of the Day: The Enforcement Pathologies of Immigration Policing by Barbara E. Armacost
The Enforcement Pathologies of Immigration Policing by Barbara E. Armacost University of Virginia School of Law March 1, 2015 Virginia Public Law and Legal Theory Research Paper No. 19
Abstract: State and local police have become increasing involved in enforcing immigration law. While so called “immigration policing” is not new, as some scholars have claimed, it has increased in visibility and influence. This is due in large part to state and federal legislation that has broadened the footprint of immigration policing programs, and to increased federal funding, which has enabled state/federal cooperative programs to flourish. The federal government has created many of the immigration enforcement partnerships between federal agents and state and local police. Today, U.S. Immigration and Customs Enforcement lists no fewer than thirteen immigration enforcement cooperatives, including the 287(g) program and Secure Communities, recently renamed the “Priority Enforcement Program.” In addition, state legislatures have also been busy empowering state and local police to do immigration enforcement in their jurisdictions, including in Arizona where an important immigration policing provision was upheld by the Supreme Court in Arizona v. United States.
The increased participation of state and local officials has thrust immigration policing into the limelight and triggered passionate reactions by scholars and the media both pro and con. While these debates have important things to say, this article will assume that immigration policing – in some form – is here to stay. The reason is simple: Immigration policing simply makes sense (or in any event it is too tempting to resist). State and local police are already on the street interacting with citizens, enforcing laws, investigating suspicious conduct, and arresting suspected criminals. Why not ask officers engaged in these activities to pursue any suspected immigration violations at the same time, especially if they can do so without changing their ordinary policing activities? While there are 18,000 federal immigration agents there are over 750,000 state and local police with arrest authority. Conscripting state and local police creates a substantial “force multiplier” for the much more limited federal immigration workforce.
Proponents of immigration policing argue that state and local police can serve as a force multiplier without producing any adverse effect on either federal immigration priorities or state law enforcement priorities. The goal of this article is to dispute this claim. The claim relies on the assumption that state and local officials will continue to make law enforcement decisions uninfluenced by the knowledge that stops, investigations, and detentions in connection with other crimes are a gateway to immigration enforcement. It is well know, however, that police officers routinely use “pretextual” street and traffic stops for minor offenses to investigate other crimes for which they lack probable cause. Not surprisingly, police involved in immigration policing are using street and traffic stops as a mechanism for investigating suspected immigration violations. This strategy both compromises federal immigration policy – by shifting the focus away from dangerous criminal aliens and toward minor offenders – and diverts state and local policing resources away from ordinary criminal enforcement. Moreover, stops with hidden immigration enforcement motivations lead almost inevitably to racial profiling, most of which is either legal or very difficult to challenge.
The second part of the article draws on lessons from the Fourth Amendment context to explore possible solutions that will address these distortions while retaining important benefits from the federal/state/local partnerships. The most important strategy for addressing pretextual policing is to decouple state and local policing from automatic (or the perception of automatic) immigration enforcement. One step toward decoupling is to treat stops and arrests for minor offenses, which create the risk of pretextual stops and racial profiling, differently for purposes of immigration enforcement than stops and arrests for more serious crimes. A number of states have moved in this direction by declining to honor ICE detainers for potential immigration violators unless those individuals have actually been convicted of a serious crime. Other states have adopted policies that bar police from initiating police action for the purpose of investigating suspected immigration violations. ICE has also taken steps to channel its enforcement efforts toward illegal aliens who have committed serious crimes or repeatedly flouted federal immigration.
Such efforts point the way forward in an enforcement world in which state and local immigration policing is here to stay.
Monday, March 30, 2015
The Center on Law, Race and Politics at the Duke University School of Law will hold its Present and Future of Civil Rights Movements Conference on November 20-21, 2015. This symposium will examine the future of American civil rights through the interdisciplinary lens of critical race studies, bringing together scholars and practitioners from the legal and social science communities to engage with each other and create conversations towards a more equitable future. We encourage paper and panel proposals on a wide range of topics including, but not exclusively encompassing, the following:
Present and Future of Civil Rights Movements in relation to
- Race and criminal justice
- Minority communities, wealth, and access to credit
- Race and healthcare
- Affirmative action
- Undocumented students and immigration reform
- School disciplinary policies and the school-to-prison pipeline
- Reproductive rights
- Passing and assimilation
- Discourses about post-racialism
- Multiracial identity
- Race and the Workplace
- Race and the Family
- International conceptions of equality law
Each proposal must include a cover page with paper title, presenter, affiliation, and a current email contact, along with a C.V. of each presenter and an abstract of no more than 250 words. Please submit materials via email to DukeLawCLRP@gmail.com with the subject line: CRS Symposium Proposal.
The deadline for submission is June 15, 2015. Scholars whose submissions are selected for the symposium will be notified no later than July 15, 2015. We encourage early submissions, as selections will be made on a rolling basis.
Please visit the Center website for more information.
If one asks people in Mexicali, Mexico, just across the border from Calexico in the Imperial Valley of California, about their most notable regional cuisine, they won’t say street tacos or mole. They’ll say Chinese food. There are as many as 200 Chinese restaurants in the city. North of the border, in Imperial County, the population is mostly Latino, but Chinese restaurants are packed. There are dishes in this region you won’t find anywhere else, and a history behind them that goes back more than 130 years.
There’s a specific legal reason for all of this, according to Professor Robert Chao Romero, author of The Chinese in Mexico, 1882-1940 (2010) “The restaurants you see now are remnants of the Chinese population that used to fill the U.S./Mexico borderlands in Mexicali and in Baja California,” he says. Romero teaches in both the Chicano Studies and Asian American Studies departments at UCLA. “The Chinese started to go to Mexico after the Chinese Exclusion Act was passed in the United States,” he says. Many Chinese immigrants later came to the United States.
Tina Susman reports in the Los Angeles Times on the complaints of dairy farmers about how the the current immigration laws makes it hard to get workers.
Mike McMahon's Latino employees need to go to the bank, the pharmacy or the grocery store, he makes sure someone drives them to town, waits while they run errands, and then brings them safely back to his dairy farm. The risk of deportation of dairy workers is a risk that dairy farmers in this agricultural region have faced for years, but it is hitting them harder as immigration reform languishes in Washington and the nation's demand for milk-heavy products like Greek yogurt soars.
"It's just crazy," said McMahon, who has several hundred cows at his farm more than 200 miles north of New York City. "I'm a lifelong Republican," he said, shaking his head. "But I'm telling you, there are days when I think about switching."
Most people think of border and immigration issues as happening in the Southwest, but it's a real across the entire country. Locals won't do the dirty, manual jobs, farmers say, and immigration laws limit farmers to importing only seasonal agricultural employees. That does not help dairy farmers, who need year-round workers. "The nation's food system is at risk if we can't get this fixed," McMahon said.
Last month, Dean Norton, a dairy farmer who is president of the New York Farm Bureau, traveled to Washington to argue for reform, including a guest-worker program catering to dairy farmers.
Remote Adjudication in Immigration by Ingrid V. Eagly, UCLA School of Law; University of Oxford - Border Criminologies March 19, 2015 Northwestern University Law Review, Vol. 109, No. 4, 2015, Forthcoming UCLA School of Law Research Paper No. 15-09
Abstract: Increased reliance on televideo technology is a central challenge to the legitimacy of modern courts. Supporters view televised adjudication as an essential tool that has no negative effect on judicial decisionmaking, whereas critics urge that it unfairly biases judges against litigants who must pursue claims over a television screen. What has gone unnoticed in this judge-focused discourse is the potential for remote adjudication to discourage litigant participation in the adversarial process. This Article is the first large-scale, empirical analysis of the consequences of televideo on judges, lawyers, and litigants in immigration cases. Based on a natural experiment with televideo adjudication in the federal immigration courts, it reveals an outcome paradox: detained televideo litigants are more likely than detained in-person litigants to be deported, but not because judges unfairly disadvantage televideo cases at trial. Instead, these inferior results occur because detained litigants assigned to televideo courts exhibit depressed engagement with the adversarial process — they are less likely to retain counsel, to apply to remain lawfully in the United States, or to seek an immigration benefit known as voluntary departure.
Drawing on interviews of stakeholders and court observations from the highest-volume detained immigration courts in the country, this Article advances several explanations for why televideo litigants are less likely than other litigants to take advantage of procedures that could help them. These include: (1) litigants’ perception that televideo is unfair and illegitimate; (2) technical challenges in litigating claims over a television screen; and (3) the literal barrier that remote adjudication places between the immigrant respondent and other courtroom actors. These findings invite reexamination of the conventional judge-focused theories about remote adjudication and begin an important conversation about technology’s threat to meaningful litigant participation in the adversarial process.
KJ blogged about how Governor Christie recently joined the 26 other states in Texas v. United States in their efforts to stop President Obama's executive action programs. And Kit Johnson's post on "immigration geography" offers a really helpful visual perspective on this matter.
The issue of states' positions on immigration law, however, is more nuanced when we examine the views of other states and cities, including those located in states that are suing the United States.
In particular, there are states that support President Obama's programs. Indeed, thirteen states (including Washington, California and New York) have filed an amicus brief supporting the United States. State Attorneys General, including Washington's and California's, also submitted their brief in support of the United States.
On the municipal level, 33 cities, NYC, Los Angeles, and San Francisco, have also filed their brief on behalf of the United States. Interestingly, the mayors of Newark, NJ and Houston, TX have signed on to this brief. The mayor of Brownsville, TX also submitted a brief (on behalf of Congresswoman Filemon-Vela (D-Brownsville).
The NYT today covers states taking different approaches to immigration. "This is immigration geography: Some states are reluctant to accept undocumented immigrants, while others are moving to incorporate them," writes Julia Preston.
The accompanying info-graphics are not to miss.
For a nuanced read on state approaches to immigration, check out immprof Stella Burch Elias' terrific work The New Immigration Federalism.
We are all aware that 26 states jointly sued the United States to stop the executive action programs that President Obama issued in November 2014. As KJ recently blogged, the State of New Jersey is the latest to join this effort. (The most recent development in Texas v. United States may be found here).
These divergent state policies regarding programs for undocumented immigrants have different practical realities for immigrants and their families as reported by Julia Preston in the NYT today. Undocumented immigrants in states such as Texas who are unable to obtain driver's licenses must drive to work and school without one. By contrast, those who live in states such as Washington, which allows all persons to have driver's licenses regardless of immigration status, have been able to drive to school, work, grocery stores, hospitals, etc. As litigation continues on Texas v. United States, this article reminds us of the importance on examining the impact that a "house divided" on immigration law have on the day-to-day lives of immigrants.
Sunday, March 29, 2015
In response to murmurings about Senator Ted Cruz's candidacy for President (Cruz was born in Canada to a U.S. citizen mother), Neal Katyal and Paul Clement in the Harvard Law Review Forum have this to say about the U.S. Constitution's "natural born Citizen" requirement for the Presidency:
"There are plenty of serious issues to debate in the upcoming presidential election cycle. The less time spent dealing with specious objections to candidate eligibility, the better. Fortunately, the Constitution is refreshingly clear on these eligibility issues. To serve, an individual must be at least thirty-five years old and a “natural born Citizen.” Thirty-four and a half is not enough and, for better or worse, a naturalized citizen cannot serve. But as Congress has recognized since the Founding, a person born abroad to a U.S. citizen parent is generally a U.S. citizen from birth with no need for naturalization. And the phrase “natural born Citizen” in the Constitution encompasses all such citizens from birth. Thus, an individual born to a U.S. citizen parent — whether in California or Canada or the Canal Zone — is a U.S. citizen from birth and is fully eligible to serve as President if the people so choose."
"Some of them have been building their collections since childhood. Sen. Lindsey O. Graham (S.C.) is up to 12 now, including an AR-15 assault weapon that he has talked about using if law and order ever breaks down in his neighborhood. Former Texas governor Rick Perry is so well-armed, he has a gun for jogging. Others were city kids who didn’t own guns until later in life. Sen. Marco Rubio (Fla.) bought a .357 magnum revolver in 2010, the year he ran for Senate, saying the gun was for protection. Two other city-bred presidential hopefuls — former Florida governor Jeb Bush and New Jersey Gov. Chris Christie — don’t own a gun at all."
“We need to defend the Second Amendment!” Sen. Ted Cruz (R-Tex.) said at a recent “Lincoln-Reagan” dinner for Republicans in Lincoln, N.H. . . . “I’m pretty sure New Hampshire’s definition of gun control is kind of what it is in Texas. Gun control means hittin’ what you aim [at].”
The Chapman Law Review (vol. 18, number 2) has published a symposium entitled "Stalemate on Immigration Reform" with contributions by Scott Rempell (unaccompanied minors and the "border surge"), Wendi Adelson (immigrant admission to the bar), Mariela Olivares (toward gender equality in immigration law), Marisa Cianciarulo (the impacts of the expiration of INA § 245(i)), and Carrie Rosenbaum (the California Trust Act). I also included a piece on immigration reform. See Download Johnson
Saturday, March 28, 2015
ImmigrationProf recently reported on efforts to save migrants making the journey to Africa on the Mediterranean Sea. This report, EU Policies on Mixed Migration Flows in the Mediterranean Sea by Julia Gour, considers the tragic deaths of over 300 people off the coast of Lampedusa in 2013 and many other incidents involving migrants from Middle East and North Africa (MENA) crossing the Mediterranean in order to seek refuge in Europe. The deaths have led to a debate in the European Union on asylum policies and how to deal with irregular migration. However, no concrete policy has been agreed since the tragic events at Lampedusa in 2013 and continuous crossings that have resulted in many more deaths.
This background brief provides an overview of the existing EU policies on asylum seekers and in addressing irregular migration and some of the actions which the relevant Member States take when confronted with continuous flows of irregular migrants. This brief concludes that the EU should delink the rescue of irregular migrants from security concerns, provide a legal basis which offers protection to irregular migrants, and create a transparent working environment in which member states are better able to support each other when dealing with such events.
From the Bookshelves: Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases by Shoba Sivaprasad Wadhia
When Beatles star John Lennon faced deportation from the U.S. in the 1970s, his lawyer Leon Wildes made a groundbreaking argument. He argued that Lennon should be granted “nonpriority” status pursuant to INS’s (now DHS’s) policy of prosecutorial discretion. In U.S. immigration law, the agency exercises prosecutorial discretion favorably when it refrains from enforcing the full scope of immigration law. A prosecutorial discretion grant is important to an agency seeking to focus its priorities on the “truly dangerous” in order to conserve resources and to bring compassion into immigration enforcement. The Lennon case marked the first moment that the immigration agency’s prosecutorial discretion policy became public knowledge. Today, the concept of prosecutorial discretion is more widely known in light of the Obama Administration’s Deferred Action for Childhood Arrivals or DACA program, a record number of deportations and a stalemate in Congress to move immigration reform.
Beyond Deportation is the first book to comprehensively describe the history, theory, and application of prosecutorial discretion in immigration law. It provides a rich history of the role of prosecutorial discretion in the immigration system and unveils the powerful role it plays in protecting individuals from deportation and saving the government resources. Shoba Sivaprasad Wadhia draws on her years of experience as an immigration attorney, policy leader, and law professor to advocate for a bolder standard on prosecutorial discretion, greater mechanisms for accountability when such standards are ignored, improved transparency about the cases involving prosecutorial discretion, and recognition of “deferred action” in the law as a formal benefit.
Migration Controls and Travel from the US to Mexico City (One Hour in Migration and Customs Each Way)
Given what I know about immigration law and enforcement, I find it interesting to travel internationally and experience immigration controls firsthand. This week, I made a trip to Mexico City for an immigration conference and had some fun.
Having grown up in Southern California, I have traveled to Mexico for years, often on short vacations to the beaches in Baja California. Travel to Mexico from the United States for U.S. citizens has changed significantly in recent years, with U.S. citizens now required to present passports upon return to the United States. It goes without saying that migration controls are tighter on both sides of the border than they once were.
Outside of the migration controls, there have been changes in how one thinks of trips to Mexico. Namely, safety is a concern. The U.S. Department of State issued its most recent a travel advisory in December 2014, warning of crime (including kidnappings) in certain parts of Mexico. (I must say that, during my short stay, Mexico City seemed as safe as any other metropolis that I had visited in recent years; the police on the streets and roads appeared very well-armed).
As the sign pictured above indicates, Mexico, like many other nations (including the United States), has taken steps to stop the spread of the Ebola virus and calm public fears. I am not sure if any sign that has "EBOLA" in capitals will calm anyone, however.
The Mexican immigration and customs officials were efficient and respectful. It was a relatively quick and easy entry. I had to fill out a couple of forms, one for immigration purposes, the other for customs. I must say that I was less worried about the encounter than I was on trips to Germany and China (perhaps because I can speak a tad bit of Spanish and effectively no German or any dialect of Chinese). The overall time for the inspection was less than an hour, with most of the time waiting in line with other travelers.
The return to the United States was uneventful enough. Respectful and professional, if not warm and friendly, are words that best describe the U.S. immigration and customs officers. The immigration check was a matter of seconds and I was waved through customs. Overall, I cleared immigration and customs in about one half hour, with relatively short waits in line with other U.S. citizens.
The most challenging part of the entire trip was not immigration, customs, or the airports. Rather, it was dealing with the traffic gridlock in Mexico City, which makes traffic in my hometown of Los Angeles truly look like a picnic. Traffic jam doesn't quite capture the scene of clogged cars at a standstill in Mexico City streets and roads. A trip from the airport to UNAM at around 7 in the evening took about 2 hours; it took 1.5 hours on the way back to the airport in the morning.
In any event, the trip was well worth the amazing immigration conference at UNAM.