Sunday, May 31, 2015
CNN reports that former Maryland Governor Martin O'Malley launched his presidential campaign yesterday with an appeal to the Democratic Party's progressive base as an alternative to Hillary Clinton. O'Malley governor kicked off his campaign in Baltimore, the city where he was once mayor.
O'Malley's supporters claim that he has a record of work on issues of concern to Latinos and immigrants that rivals that of Hillary Clinton. Several Latino leaders consider him a stronger ally on immigration and support of the Latino community. "Martin O'Malley, in his history as governor of Maryland, has been a real hero for the immigrant community. He not only supported many groundbreaking reforms in the state, he also became a national spokesperson for immigrant families and their human rights, especially the unaccompanied minors who arrived in droves on the border last year," said Kim Propeack, chief of political communication for CASA de Maryland - Maryland's largest immigrants services and rights organization.
O'Malley's campaign website calls for immigration reform:
"Bringing undocumented immigrants out of the shadows will grow our economy, expand our tax base, create jobs and lift wages–benefiting our country as a whole. We must boldly advance comprehensive immigration reform, while also using executive action to its full authority to end unnecessary detentions and expand deferred action. As Americans, when refugee children arrive on our doorstep, we shouldn’t turn them away—we should act like the generous, compassionate people we are."
The Obama administration's controversial family immigration detention policies continue to be in the news. Earlier this week, 136 House Democrats sent a letter to DHS Secretary Jeh Johnson asking the administration to end its family detention policy. The letter, which includes a majority of House Democrats, including Democratic Leader Nancy Pelosi and Democratic Whip Steny Hoyer, was lead by Reps. Zoe Lofgren, Lucille Roybal-Allard, and Luis Gutiérrez.
The impacts of detention of immigrant women and children in centers in Dilley and Karnes, Texas are discussed in these two pieces of commentary. Both compare modern day family immigrant detention with the U.S government's internment of the Japanese during World War II.
Carl Takei in this piece on the ACLU blog "Speak Freely" concludes:
"ICE's misguided effort to build child-friendly prison camps repeats the inhumanity that the U.S. government inflicted on Japanese-American families during World War II. If Obama administration officials implementing family detention ignore the lessons of the past, they will assure their own ignoble place in history."
In this piece on the Huffington Post, a licensed family therapist who was born in the Tule Lake internment camp concludes in a similar fashion:
"It has been a life-long mission for me to educate others about this dark chapter of American history with hopes that it would never happen again. The incarceration of innocent women and children seeking asylum in America tragically replicates the racism, hysteria and failure of political leadership of 1942."
The historical comparison of family immigrant detention and the internment of persons of Japanese ancestry is food for thought. The harshness of the policies, as well as their clear racial impacts, should cause all -- even supporters of increased immigration enforcement -- to pause to think about what we are doing as a nation to desperate people in need of help.
Saturday, May 30, 2015
Fifth Circuit Sets Oral Arguments in Texas v. United States for July 10, Panel of Judges Uncertain at this Time
The Hill reports that the Fifth Circuit has announced that it has set a date to hear an expedited appeal of District Court Judge Andrew Hanan's preliminary injunction halting the implementation of the Obama administration's expanded deferred action program. The court will hear oral arguments on July 10 in New Orleans.
Importantly, as The Hill reports,"It's not clear if the same judges who denied the administration's stay request will hear the broader appeal. The court's clerk said the judges will be announced one week before the hearing." (emphasis added).
In the ruling earlier this week on the U.S. government's motion to stay the lower court's injunction pending the appeal, Judge Jerry Smith, a Reagan appointee, and Judge Jennifer Elrod, a George W. Bush appointee, agreed that the stay motion should be denied. In dissent, Judge Stephen Higginson, an Obama appointee, argued that the stay should have been granted and that, through "judicial fiat," the Obama program had been wrongfully held up. Because of the strong views in the majority opinion, one would predict that, if the same panel that decided the stay motion decides the merits, the U.S. government will likely lose.
Ian Smith in the National Review on Prosecutorial Discretion, the Fifth Circuit Ruling in Texas v. United States, and Reliance on One "Liberal" Immigration Law Professor
There has been considerable commentary this week about the U.S. Court of Appeals for the Fifth Circuit's 2-1 ruling denying a stay of the district court's preliminary injunction preventing the implementation of the Obama administration's expanded deferred action (including DAPA) program. This National Review article by Ian Smith focuses on Judge Higginson's dissent and the administration's reliance on the concept of prosecutorial discretion as the justification for the deferred action program.
In criticizing the prosecutorial discretion justification, the National Review article relies heavily on an article by Professor Peter Margulies, described as a "liberal law professor (and immigration attorney)" that is forthcoming in the American University Law Review. Here is the abstract to that article:
"Stakes are high in the current debate about President Obama’s immigration reform initiative, Deferred Action for Parents of Americans (DAPA). Given the gridlock in Congress, it is tempting to read the Immigration and Nationality Act (INA) as authorizing work authorization and a reprieve from removal for undocumented migrants. Unfortunately, statutes, like facts, are stubborn things. DAPA is sound policy, but it is inconsistent with core policies in U.S. immigration law.
The INA is a comprehensive framework that both enables legal immigration and deters unlawful migration. To accomplish the latter, its provisions discourage unlawful entry, presence, and work, while its enumerated categories of legal status block unlawful entrants’ acquisition of status through post-entry U.S. citizen children. Moreover, Congress for over a quarter-century has sought to limit discretion in the executive branch that undermines the INA’s deterrence goals. DAPA’s discretionary grant of benefits to four million foreign nationals would render Congress’s limits superfluous.
Judicial review of DAPA is appropriate to restore the immigration framework’s balance. Because DAPA will have a significant impact and limits officials’ discretion, it is a legislative rule requiring resort to the notice and comment procedures of the Administrative Procedure Act. While DAPA’s supporters assert that it constitutes an unreviewable exercise of prosecutorial discretion under the Supreme Court’s decision in Heckler v. Chaney, DAPA’s broad eligibility criteria remove it from the realm of individual enforcement decisions that Chaney shielded from judicial review. Upon review, DAPA is unworthy of judicial deference, because it fails the “common sense” test outlined by the Supreme Court in FDA v. Brown & Williamson. Given Congress’s recent efforts to curb immigration officials’ discretion, it is implausible that Congress would have authorized the blanket discretion that DAPA entails.
Despite its soundness as policy, DAPA’s fundamental failing as law is its lack of an intelligible limiting principle. While the Obama administration concedes it cannot grant deferred action to all unlawful migrants, it supplies no principled basis for distinguishing the four million potential DAPA beneficiaries from the seven million unlawful migrants left out in the cold. That deficit should be of concern to immigration advocates, who have made a Faustian bargain in supporting the executive branch. Advocates and all devotees of our constitutional order would do well to remember that executive discretion that appears benevolent today can take on a decidedly different cast with changes in the White House. To avoid unwelcome surprises, the worthy project of immigration reform should remain where the Constitution placed it: in Congress."
Professor Margulies' position is contrary to that expressed by 109 immigration law professors in an amici brief urging reversal of the preliminary injunction by the Fifth Circuit.
Immigration Article of the Day: Constructing Crimmigration: Latino Subordination in a 'Post-Racial' World by Yolanda Vázquez
Friday, May 29, 2015
Immigration Article of the Day: Asylum Discord: Disparities in Persecution Assessmentsby Scott Rempell
Asylum Discord: Disparities in Persecution Assessments by Scott Rempell, South Texas College of Law May 29, 2015 Nevada Law Journal, Vol. 15, No. 1, 2014
Abstract: Asylum claims often hinge on applicants’ ability to prove that they suffered or fear harm that rises to the level of persecution. Nevertheless, scholars have not comprehensively surveyed how courts measure harm and to what extent courts’ harm assessments are inconsistent. This study undertakes the task. It reviews approximately 900 published asylum cases decided by the federal appellate courts from 1996 through 2013, since the appellate courts have served as the final arbiter for when harm is sufficiently severe. From these 900 cases, the study isolates the decisions where an appellate court specifically determined whether a set of harms is necessarily sufficient to establish an applicant was persecuted. After isolating these decisions, the study then categorizes them based on the type, frequency, and duration of harms sustained by the applicants.
The results demonstrate incredible divergences in most of the segmented categories, from a single instance of abuse and detention to prolonged psychological suffering. The data reveals that asylum applicants’ ability to avoid deportation may depend on the appellate court jurisdiction they happen to fall under or even the particular judges within a given circuit that happen to be assigned to their cases. Disparities in how courts assess and measure harm also contribute to the inconsistent persecution outcomes. The article recommends heightened scrutiny of whether being persecuted requires systematic abuse, increased standardization of harm severity thresholds, greater attention to the details of harm inquiries, and more precise opinion drafting.
Earlier this week, Jerry Markon of the Washington Post examines the recent decrease in undocumented Mexican migration to the United States and offers a variety of possibilities for the recent trends. U.S. government officials are quick to credit increased border enforcement with the reduction in the undocumented immigrant population. Others offer other explanations. Noted demographer Douglas Massey claims that increased enforcement had nothing to do with the decline in unauthorized immigration and sees decreasing fertility rates in Mexico as contributing to reductions in immigration.
Thursday, May 28, 2015
As KJ blogged earlier, the annual Law & Society is happening now.
There are many panels on immigration and citizenship. You can do a search here for panels. (Not sure these links will work but it's worth trying: click here for the 21 panels that used the term "immigration," here for the 10 panels that used "citizenship," here for the 3 panels that used the term "crimmigration" and here for the 2 panels that used the word "deportation."
Today, at 2:45 to 4:30 PM, I will be participating in a panel, "Contextualizing Citizenship."
Ruth Gomberg-Munoz, Loyola University Chicago
Non-Citizen Nationals: Neither Citizens Nor 'Aliens'
Rose Cuison-Villazor, UC Davis School of Law
This disturbing video will not improve the public perception of the Border Patrol. A New York state college student says Customs and Border Protection agents threw her to the ground and tasered her after she was stopped earlier this month at a border checkpoint in Lisbon, New York.
The conference theme: What has law accomplished in the Global North and Global South? Its champions have promised much—the spread of human rights and the rule of law, the elimination of discrimination and the protection of the vulnerable, the lure of economic development and the fostering of global trade, endowments of human dignity and restraints on economic rapacity. Its critics observe law as an instrument for repression, hegemonic control and infringements on privacy and intrusive surveillance (in the context of a never-ending and ubiquitous ‘war against terror’), as a weapon against free speech or political opposition, as a tool of economic exploitation and domination, and as a retreat from politics. The 2015 LSA annual meeting will engage law’s promises and law’s pathos in domestic and transnational contexts, through plenaries addressing the roles of law in the war on terror, in climate change, in emancipation and protection of the world’s most vulnerable populations, and in law’s relationships with religions.
Immigration Article of the Day: Immigration and Disability in the United States and Canada by Mark Weber
Immigration and Disability in the United States and Canada by Mark C. Weber, DePaul University College of Law May 15, 2015 Windsor Yearbook of Access to Justice, Forthcoming
ABSTRACT: Disability arises from the dynamic between people’s physical and mental conditions and the physical and attitudinal barriers in the environment. Applying this idea about disability to United States and Canadian immigration law draws attention to barriers to entry and eventual citizenship for individuals who have disabilities. Historically, North American law excluded many classes of immigrants, including those with intellectual disabilities, mental illness, and physical defects, and conditions likely to cause dependency. Though exclusions for individuals likely to draw excessive public resources and those with communicable diseases still exist in Canada and the United States, in recent years the United States permitted legalization for severely disabled undocumented immigrants already in the country, and both countries abolished most exclusions from entry for immigrants with specific disabling conditions. Liberalization also occurred with regard to U.S. naturalization requirements.
Challenges continue, however. Under U.S. law, vast discretion remains with regard to the likely-public-charge exclusion, because consular officers abroad decide unilaterally whether to issue immigrant visas. Moreover, conduct related to mental disability, including petty criminality, can result in removal from the United States, and individuals with mental disabilities have only modest safeguards in removal proceedings. In Canada, families who have children with disabilities find themselves excluded from legal status because of supposed excessive demands on public resources, although an individual’s disability may provide grounds for avoiding removal in some cases. The relaxation of some exclusions in Canada and the U.S. and of U.S. requirements for citizenship illustrates a significant, though conspicuously incomplete, removal of disability-related barriers in North American law and society.
Facing unprecedented numbers of asylum seekers and other migrants seeking to gain entry to Europe via the often perilous Central Mediterranean route, European policymakers are drawing upon an incomplete evidence base as they seek to stem the flow of boats that are largely responsible for the inflow of more than 220,000 people in 2014, a new Migration Policy Institute Europe report argues.
The report, Before the boat: Understanding the migrant journey, makes the case that policymakers are making decisions ‘while in the dark’ about the decision-making process and the assessment of risk that migrants face at every step of the journey. They also lack detailed insight about the business model of the smuggling networks that are delivering often desperate people to Europe’s doorstep in exchange for significant remuneration, argue authors Jacob Townsend and Christel Oomen of Farsight, a Brussels-based social enterprise with a focus on migration that has organised interviews with thousands of migrants and would-be migrants.
The report, which draws on findings from migrant interviews, suggests that prior research has been limited in scope, hampered by a number of factors, including a ‘destination bias’ that analyses movements from the perspective of destination countries and successful migrants, not those who abandoned their quest en route or before setting off. There is also a dearth of research on the organisational structures and the political economy of migrant-smuggling networks, which hampers attempts to crack down on them.
The authors also challenge the idea that migrants must have been unaware of the risks of maritime crossings or have received inadequate information. Interviews with migrants, the authors report, suggest they are highly attuned to threats, and may accord more importance to the goal of long-term settlement than risks to immediate safety.
The report is the latest in a research project, ‘EU Asylum: Towards 2020’, conducted by MPI Europe and International Migration Institute/Open Society Foundations. For earlier reports in the project, visit here.
Wednesday, May 27, 2015
The journal Laws is currently running a special issue entitled “Immigration Law and Criminal Justice.” Ingrid Eagly has agreed to serve as the Guest Editor for this issue and would like to invite you to participate. For more information, please follow the link to the Special Issue Website.
The submission process is subject to peer review and the submission deadline is October 15, 2015. You may send your manuscript now or up until the deadline. Submissions by practitioners and students are also welcome.
Submitted papers should not be under consideration for publication elsewhere. Authors may also send a short abstract or tentative title to the Editorial Office in advance (email@example.com).
For 50 years the “one person, one vote” principle has been employed to divide political power by counting all people in states and putting them into electoral districts of roughly equal size. A case raising the continuing vitality of that principle, which could shift away political power away from states, such as California, Florida, and Texas, with growing Latino communities.
The Supreme Court yesterday announced that it would hear arguments about whether electoral districts should continue to be drawn by using census population data, which include noncitizen immigrants who are in the United States, or whether the system should be changed to count only U.S. citizens who are eligible to vote.
The case is Evenwel v. Abbott. The question presented by the case is whether the district court was correct in holding that the “one-person, one-vote” principle under the Equal Protection Clause allows States to use total population, and does not require States to use voter population in apportioning state legislative districts.
David Savage and David Lauter of the Los Angeles Times analyze the potential impacts of the case on Latino voting power. Links to other commentary on the case can be found on SCOTUSBlog.
Immigration Article of the Day: The Bracero Program and Entrepreneurial Investment in Mexico by Edward Kosack
The Bracero Program and Entrepreneurial Investment in Mexico by Edward Kosack, University of Colorado Boulder, Department of Economics April 1, 2015 Abstract: The Bracero Program was a massive guest worker program that allowed over four million Mexican workers to migrate legally and work temporarily in the United States from 1942 to 1964. This paper examines the development impacts of the program, especially its effect on individual investments. Exploiting microdata and within person variation in migration choices, I estimate an individual fixed effects model to obtain the effect of bracero migration on the individual’s decision to start a new business. Results indicate that individuals migrating as braceros were more likely to start new businesses, and that bracero trips were more likely to result in business investment than were illegal trips. Several alternative explanations are systematically eliminated. Survival analysis is used to further explore the timing of business investment and how that was related to migration. Hazard models suggest that bracero migration was associated with a greater hazard of investment. These models also suggest that illegal migration was less successful in encouraging immediate entrepreneurial activity. This provides strong evidence that the Bracero Program increased economic growth and development by spurring new investment and that this boost was greater than for other migration options at the time.
Ann Coulter is in the immigration news. To promote her new book, Adios, America, Coulter sat down with Jorge Ramos for a town hall-style interview. At one point, immigration activist Gaby Pacheco stood up and asked if she could give Coulter a hug. Coulter awkwardly declined
During the interview, Ramos questioned Coulter about her belief that Americans should “fear immigrants” from Mexico “more than ISIS.” “I have a little tip,” Coulter told him. “If you don’t want to be killed by ISIS, don’t go to Syria. If you don’t want to be killed by a Mexican, there’s nothing I can tell you.”
Here is a description on Amazon.com of Coulter's new book:
"Ann Coulter is back, more fearless than ever. In Adios, America she touches the third rail in American politics, attacking the immigration issue head-on and flying in the face of La Raza, the Democrats, a media determined to cover up immigrants' crimes, churches that get paid by the government for their `charity,' and greedy Republican businessmen and campaign consultants—all of whom are profiting handsomely from mass immigration that's tearing the country apart. Applying her trademark biting humor to the disaster that is U.S. immigration policy, Coulter proves that immigration is the most important issue facing America today."
UPDATE (May 30): Yesterday, Ann Coulter said in an email to Breitbart News that if she ran the immigration system, she wouldn’t “admit overweight girls” into the United States. Coulter’s comments were reportedly made in response to a question about the incident that occurred earlier in the week when Coulter refused to hug Gaby Pacheco during an audience Q&A on the cable network Fusion.
Tuesday, May 26, 2015
Breaking News: Fifth Circuit Refuses to Stay the Injunction Barring Implementation of President Obama's Expanded Deferred Action Program
The CrImmigration blog has posted the U.S. Court of Appeals for the Fifth Circuit decision in Texas v. United States denying the Obama administration's request for a stay of the district court's preliminary injunction barring implementation of the expanded deferred action program announced in November 2014. Judge Jerry Smith wrote the opinion for the court and was joined by Judge Jennifer Elrod. Judge Stephen Higginson, an Obama appointee and former law professor, dissented.
The majority summarized its ruling as follows: "[b]ecause the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction." It found that the U.S. government had not made a strong showing that it is likely to succeed on the merits of its claim that the states lack standing. The court concluded that the costs of issuing driver's license by the state of Texas under the expanded deferred action program was likely sufficient to confer standing on Texas. The court further found that the U.S. government failed to establish a strong likelihood of success on plaintiffs' claim under the Administrative Procedure Act. Last but not least, the court rejected the U.S. government's argument that the injunction be limited to the state of Texas:
"The government maintains that the nationwide scope of the injunction is an abuse of discretion, so it asks that the injunction be confined to Texas or the plaintiff states. But partial implementation of DAPA would undermine the constitutional imperative of `a uniform Rule of Naturalization' and Congress’s instruction that `the immigration laws of the United States should be enforced vigorously and uniformly.' A patchwork system would `detract from the ‘integrated scheme of regulation’ created by Congress.' Further, there is a substantial likelihood that a partial injunction would be ineffective because DAPA beneficiaries would be free to move between states." (footnotes omitted).
Judge Higginson dissented, summarizing his views as follows:
"I would hold that the underlying issue presented to us—the order in which non-citizens without documentation must be removed from the United States—must be decided, presently is being decided, and always has been decided, by the federal political branches. . . . On the expedience of immigration measures, sensible things can be said on all sides, mindful that our country is an immigrant society itself. The political nature of this dispute is clear from the names on the briefs: hundreds of mayors, police chiefs, sheriffs, attorneys general, governors, and state legislators—not to mention 185 members of Congress, 15 states and the District of Columbia on the one hand, and 113 members of Congress and 26 states on the other. I would not affirm intervention and judicial fiat ordering what Congress has never mandated." (citation and footnote omitted) (emphasis added).
I agree with Lyle Denniston on SCOTUSBlog that this case is likely to end up in the Supreme Court.
UPDATE (May 29): Yesterday, the Obama administration announced that it would not seek Supreme Court review of the request for a stay of the preliminary injunction putting the DAPA program on hold. The administration will focus on defending the program on the merits and lifting the preliminary injunction in the Fifth Circuit.
Last Friday, a nationwide class action lawsuit was filed against U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS) for unlawfully delaying the adjudication of their applications for employment authorization. Filed by the American Immigration Council, Northwest Immigrant Rights Project (NWIRP), Gibbs Houston Pauw, Scott D. Pollock & Associates, P.C., and Van der Hout, Brigagliano & Nightingale, LLP, the complaint alleges that USCIS’s policies and practices of failing to timely adjudicate applications for employment authorization documents (EADs) or, alternatively, failing to issue interim employment authorization, violate the governing regulations and the Administrative Procedure Act.
Center for Gender & Refugee Studies Director Karen Musalo has been awarded the Lawyer of the Year award by the Immigration Law Section of the Federal Bar Association. The award recognizes CGRS’s work pioneering legal protection for immigrant women fleeing domestic violence.
Professor Musalo directs the Center for Gender & Refugee Studies and the Refugee and Human Rights Clinic. She is lead co-author of Refugee Law and Policy: An International and Comparative Approach (4th edition), and has contributed to the evolving jurisprudence of asylum law through her scholarship, as well as her litigation of landmark cases. Professor Musalo was lead attorney in Matter of Kasinga (fear of female genital cutting as a basis of asylum), which continues to be cited as authority in gender asylum cases by tribunals from Canada to the United Kingdom to New Zealand. She was co-counsel in the Ninth Circuit en banc decision, Abebe v. Gonzales, and attorney of record in Canas-Segovia v. INS and Ramirez-Rivas v. INS. She represented Rody Alvarado, whose case was a landmark in the struggle for the right to asylum for women fleeing domestic violence. She also represented Ms. L-R-, the asylum seeker from Mexico whose high profile victory broke additional ground on the issue of gender asylum.