Tuesday, December 22, 2015

Fellowship Opportunity with KIND in Atlanta

San Bernadino Terrorists' Visa Application


Photo courtesy of the Los Angeles Times

The Los Angeles Times is reporting that Syed Rizwan Farook told U.S. immigration officials in early 2014 that he had met his future wife on an “online website” and they decided to meet in Saudi Arabia after “several weeks of emailing," according to records released that provide new details about the San Bernardino terrorists. The visa application, which can be accessed here, includes the information and materials that Farook, a U.S. citizen born in Chicago, gave immigration officials to prove he and Pakistani-born Tashfeen Malik had met in person and were planning to marry.  Malik’s file includes copies of their Saudi passport stamps and translations of Saudi visas, as well as a two-paragraph statement from Farook saying the two had met with their parents at a house belonging to one of Malik’s relatives in Mecca.  Click the link above for more details.

As the Times observes:

"A 21-page visa application file for Tashfeen Malik offers Syed Rizwan Farook’s version of how the couple met: first on a matrimonial website and then in person when he was on a Hajj pilgrimage to Mecca. Though the paperwork offers more details, it doesn't appear to back the allegations from some Republican lawmakers that immigration officials failed to catch errors that should have blocked her entry."


December 22, 2015 in Current Affairs | Permalink | Comments (0)

UNHCR Statistics on Refugees


Here is the refugee story in data and statistics.

The United Nations High Commissioner on Refugees (UNHCR) contributes to coordination and informed decision-making in refugee operations by providing accurate, relevant and timely data and statistics. This key resource is used by all partners to respond to the needs of refugee populations.

This section provides data, reports, maps and other information essential for field operations. It also carries statistical reports on the people of concern to UNHCR: refugees, asylum-seekers, returned refugees, the internally displaced and stateless people. Detailed information on country of asylum, place of origin, gender, age, location and legal status of refugees is available. Indicators on the quality of refugee protection and UNHCR operations are increasingly being collected.


December 22, 2015 in Current Affairs | Permalink | Comments (0)

From the Bookshelves: Parents Without Papers: The Progress and Pitfalls of Mexican American Integration by Frank D. Bean, Susan K. Brown, and James D. Bachmeier


Parents Without Papers: The Progress and Pitfalls of Mexican American Integration by Frank D. Bean, Susan K. Brown, and James D. Bachmeier

For several decades, Mexican immigrants in the United States have outnumbered those from any other country. Though the economy increasingly needs their labor, many remain unauthorized. In Parents Without Papers, immigration scholars Frank D. Bean, Susan K. Brown, and James D. Bachmeier document the extent to which the outsider status of these newcomers inflicts multiple hardships on their children and grandchildren.

Parents Without Papers provides both a general conceptualization of immigrant integration and an in-depth examination of the Mexican American case. The authors draw upon unique retrospective data to shed light on three generations of integration. They show in particular that the “membership exclusion” experienced by unauthorized Mexican immigrants—that is, their fear of deportation, lack of civil rights, and poor access to good jobs—hinders the education of their children, even those who are U.S.-born. Moreover, they find that children are hampered not by the unauthorized entry of parents itself but rather by the long-term inability of parents, especially mothers, to acquire green cards.

When unauthorized parents attain legal status, the disadvantages of the second generation begin to disappear. These second-generation men and women achieve schooling on par with those whose parents come legally. By the third generation, socioeconomic levels for women equal or surpass those of native white women. But men reach parity only through greater labor-force participation and longer working hours, results consistent with the idea that their integration is
delayed by working-class imperatives to support their families rather than attend college.

An innovative analysis of the transmission of advantage and disadvantage among Mexican Americans, Parents Without Papers presents a powerful case for immigration policy reforms that provide not only realistic levels of legal less-skilled migration but also attainable pathways to legalization. Such measures, combined with affordable access to college, are more important than ever for the integration of vulnerable Mexican immigrants and their descendants.

FRANK D. BEAN is Distinguished Professor of Sociology and Director of the Center for Research on International Migration at the University of California, Irvine.

SUSAN K. BROWN is associate professor of sociology at the University of California, Irvine.

JAMES D. BACHMEIER is assistant professor of sociology at Temple University.


December 22, 2015 in Current Affairs | Permalink | Comments (0)

Your NYC January Events - AALS and Beyond

Stop 1: Thursday January 7, 2015, 10:15AM-12:00PM at AALS.

Screen Shot 2015-12-22 at 12.53.03 PM

Prawfs Bijal Shah (NYU), Shoba  Wadhia (Penn State--University Park), David Rubenstein (Washburn), and Chris Walker (Ohio State), moderated by Jill Family (Widener Commonwealth), will be discussing this important question: Is Immigration Law Administrative Law? 

Stop 2: Thursday January 7, 2015, 6:30-8:30 PM at New York Law School (Room W320, 185 W Broadway).

Screen Shot 2015-12-22 at 12.57.11 PM

Didn't get enough of Shoba on Thursday morning?  Who could. Head to NYLS for a panel discussion of her new book - Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases. You'll hear from Shoba, Anil Kalhan, Lenni Benson, with Farrin Anello moderating.

Stop 3: Saturday January 9, 2015, 10:30AM-12:15PM at AALS.

Screen Shot 2015-12-22 at 1.08.14 PM

Immigration and the 2016 election will be the topic. And beyond the expert prawfs - Deep Gulasekaram (Santa Clara), Joe Landau (Fordham), and Gilda Daniels (Baltimore) - you'll also get to hear journalist Maria Santana, of CNN En Español, weigh in on how the press is covering immigration during this election cycle.

I look forward to seeing you there!


December 22, 2015 in Current Affairs | Permalink | Comments (0)

J.K. Rowling: The Trump is Voldemort!

On the Border of Justice: Heavy Burdens and Unfair Fights in Immigration Courts

This series (On the Border of Justice: Heavy Burdens and Unfair Fights in Immigration Courts) in City Limits offers an in-depth look at the inadequacies of the nation's immigration courts.  Far from the heated debate over immigration on the presidential campaign trail, the reality of U.S. policy plays out in immigration courthouses, where lawyers can be hard to come by, detention without a hearing is the norm, and the judge you're assigned can be the difference between deportation or a right to stay. Stories by Batya Ungar-Sargon with City Limits photography by Adi Talwar.

The reports, which can be accessed through the link above, cover the following:

Heavy Burdens and Unfair Fights in Immigration Courts Immigrants’ Fates Depend on Access to Lawyers

Immigration Court Crisis Weighs on Lawyers, Families

Surviving Immigration Court: A Video Discussion

Those Seeking Better Life, Agency Pledged to Detect Fraud Clash in Immigration Court

Asylum Hearings Decide Whose Danger Makes Them Deserving


December 22, 2015 in Current Affairs | Permalink | Comments (0)

Frost and Vladeck: States Lack Standing to Challenge Expanded Deferred Action Program



In this op/ed in the New York Times,  Amanda Frost and Stephen I. Vladeck argue that the Supreme Court in Texas v. United States should find that, based on precedent, the states lack standing to challenge President Obama's expanded deferred action program.  In short, "[t]he Supreme Court should use the challenge to President Obama’s immigration policy to remind states that litigation is not an alternative to the political process. The justices should accept the case, hold that the plaintiffs lacked standing, and send it back to the lower courts with instructions to dismiss."


December 22, 2015 in Current Affairs | Permalink | Comments (0)

Monday, December 21, 2015

Immigration Article of the Day: Michael A. Olivas, Legal Resources in Immigration and Higher Education: Data and Materials on Undocumented and DACAmented Students

Trump's Idea on Muslims Fails, Despite Precedent


This op/ed in the National Law Journal offers my views on the lawfulness of Donald Trump's call to end to the admission of Muslims into the United States.   Here it is:

Donald Trump's immigration proposals, if you can call them that, are short on details but long on controversy. The presidential candidate kicked off his campaign by labeling immigrants from Mexico as criminals who should be removed in a mass deportation campaign akin to the now-discredited "Operation Wetback" — the U.S. government's official name for the campaign — in 1954.

Once again stirring the pot, Trump recently called for a blanket prohibition on all Muslim noncitizens from entering the United States. That would include temporary visitors, such as university students, as well as noncitizens seeking to become lawful permanent residents as spouses of U.S. citizens.

From a legal standpoint, the constitutionality of the race- and religion-based prescriptions endorsed by Trump is uncertain. Some legal scholars, including Temple Peter Spiro in The New York Times, have suggested that there is a legal basis for Trump's call for an end to Muslim immigration to the United States.

The U.S. Supreme Court's 1889 decision in The Chinese Exclusion Case created what is known as the "plenary power" doctrine, which immunizes from constitutional review the substantive immigration decisions of Congress and the executive branch. That doctrine allowed for the court to uphold the immigration law venomously known as the "Chinese Exclusion Act," whose very name stands as a monument to one of our darkest chapters in immigration history. Now discredited as discriminatory and based in racial animus, the act was designed to exclude Chinese immigrants from the United States. The laws were extended to bar immigration from much of Asia.

The Supreme Court has yet to overrule the plenary-power doctrine and the Chinese Exclusion Case. Many observers, however, believe that it is only a matter of time until the Supreme Court brings immigration law into the constitutional mainstream. Several indicators support that assessment. The court in recent years has rarely mentioned the plenary-power doctrine in its immigration decisions and, at times, has even stretched to ensure that noncitizens have the opportunity for some kind of judicial review of immigration decisions.

True, the Supreme Court has not revisited the Chinese Exclusion Case and, as lawyers and law professors like to say, it remains "good law." However, the court has not had a chance to revisit the precedent.

Political sensibilities have changed so much that Congress has not passed such a bold proposal to ban, for example, the admission of Muslim noncitizens to the United States. Nor has the executive branch expressly targeted Mexican immigrants, as Donald Trump seemingly would, for removal.

In recent years, despite serious concerns about terrorism, no political leader has sought the kinds of overbroad immigration restrictions that Donald Trump has endorsed. Consider that after Sept. 11, 2001, when the nation understandably was tense and fearful, the Bush administration pursued a "special registration" program.

Known as the National Security Entry-Exit Registration System, it required the registration of certain noncitizens, focusing almost exclusively on noncitizens from nations populated predominantly by Muslims. Registration included fingerprinting and photographing as well as interviews. Noncitizens who registered were required to provide detailed information about their plans and to update federal authorities of a change in plans. They were only permitted to enter and depart the United States through designated ports of entry.

Several courts of appeals rejected constitutional challenges to the special registration program but the cases never were taken up by the Supreme Court. Still, the courts took the challenges seriously and found that the U.S. government's actions in response to real national security concerns were rational.

Special registration was criticized in many circles. Still, it is a much more modest and narrowly tailored response based on nationality to concerns with terrorism than Trump's call for the ban on all Muslims. That those measures withstood judicial review should not be read as suggesting that a ban on Muslim migration might pass constitutional ­muster.


The nation has come a long way in terms of racial, ethnic and religious sensibilities since the days of Chinese exclusion and Operation Wetback. It is difficult to believe that the courts today would uphold a ban in Muslim migration to the United States — national security concerns or not. Applying minimal judicial review, the Roberts Court would likely find that Trump's proposal lacked a rational basis and thus was unconstitutional.

In the end, while Trump's bombastic attacks on immigrants might make political hay, one can hope that the American legal system has evolved to a point where anti-immigrant horror stories such as the Chinese Exclusion Act are parts of our history, not present.

Read more: http://www.nationallawjournal.com/id=1202745253296/Trumps-Idea-on-Muslims-Fails-Despite-Precedent#ixzz3v4E3dlkD





December 21, 2015 in Current Affairs | Permalink | Comments (0)

Holiday Season Tax Deal Leaves Immigrants Out in the Cold: Legislation Would Create Two-Tier Tax Code, Enact Barriers to Paying Taxes

The National Immigration Law Center states that U.S. Senate negotiators have agreed on a plan for tax cuts for corporations and much needed changes to the Child Tax Credit (CTC) and the Earned Income Tax Credit (EITC). The agreement also contains provisions that would hurt low-wage taxpaying immigrant families. The agreement would essentially create a two-tier tax system, denying newly legalized domestic violence survivors, DACA recipients, and others the rights enjoyed by other tax filers with identical economic circumstances. The agreement would bar millions of tax-paying immigrants receiving Social Security numbers from access to vital tax credits. Worse, the agreement would enact additional barriers on those who wish to file taxes using an Individual Taxpayer Identification Number, making tax compliance for working immigrant families even more difficult.

for details, see Download 2015 TAX EXTENDER LEGISLATION


December 21, 2015 in Current Affairs | Permalink | Comments (0)

From the Bookshelves: Refugees from Armed Conflict: The 1951 Refugee Convention and International Humanitarian Law by Vanessa Holzer

Refugees from armed conflict

Refugees from Armed Conflict: The 1951 Refugee Convention and International Humanitarian Law by Vanessa Holzer

Armed conflicts are a major cause of forced displacement, but people displaced by conflict are often not recognized as refugees under the 1951 Convention Relating to the Status of Refugees. They are frequently considered as having fled from generalized violence rather than from persecution. This book determines the international meaning of the refugee definition in Article 1A(2) of the Convention as regards refugee protection claims related to situations of armed conflict in the country of origin. Although the human rights based interpretation of the refugee definition is widely accepted, the interpretation and application of the Convention as regards claims to refugee status that relate to armed conflict is often marred with difficulties. Moreover, contexts of armed conflict pose the question of whether and to what extent the refugee definition should be interpreted in light of international humanitarian law. This book identifies the potential and limits of this interpretative approach. Starting from the history of international refugee law, the book situates the 1951 Convention within the international legal framework for the protection of the individual in armed conflict. It examines the refugee definition in light of human rights, international humanitarian law, and international criminal law, focusing on the elements of the refugee definition that most benefit from this interpretative approach: persecution and the requirement that the refugee claimant's predicament must be causally linked to the race, religion, nationality, and/or membership of a particular social group or political opinion.


December 21, 2015 in Books, Current Affairs | Permalink | Comments (0)

Cruz Goes Trump in Iowa Ad: Earns Four Pinocchios from Washington Post


“Their misguided [Gang of Eight immigration] plan would have given President Obama the authority to admit Syrian refugees, including ISIS terrorists. That’s just wrong.” — Sen. Ted Cruz (R-Tex.), in this new television commercial airing in Iowa

Glenn Kessler in the Washington Post Fact Checker concludes that this "immigration ad earns Four Pinocchios for a strange anti-Rubio argument."


Immigration has been a divisive issue among the Republican presidential candidates.  In recent days, Jeb Bush and Marco Rubio have accused Ted Cruz of flip flipping on a path to legalization as part of comprehensive immigration reform.



Truth or fiction?


December 21, 2015 in Current Affairs | Permalink | Comments (0)

Sunday, December 20, 2015

Immigrant of the Day: Luis Ortiz, Professional Boxer (Cuba)

Operation Streamline: Ten Years of Criminalizing Immigrants


Immigration Impact reminds us of the impacts of a major U.S. immigration development over the last decade. 

For the last 10 years, in federal courts across the Southwest border, the federal government has systematically prosecuted unlawful border crossers in group hearings with little-to-no due process. These prosecutions, often referred to as Operation Streamline, were intended to deter illegal entry and reentry. Instead, they have clogged up the federal courts and wasted government resources with little evidence that the program is achieving its goals.

Operation Streamline’s ten-year-anniversary was on December 16, 2015. It began in Del Rio, Texas and since that time, Customs and Border Protection (CBP) has worked aggressively with local U.S. Attorneys from the Department of Justice (DOJ) to prosecute border crossers for illegal entry, a misdemeanor punishable by up to 6 months in prison, and illegal re-entry, a felony punishable by up to 20 years in prison.

According to Border Patrol estimates, over 279,000 individuals have been referred to DOJ for prosecution from December 2005 to March 2014. These prosecutions are concentrated in border patrol sectors across the Southwest in Arizona and Texas.


December 20, 2015 in Current Affairs | Permalink | Comments (1)

Demonizing Muslims only benefits the terrorists


 In this commentaryJennifer Moore responds to the calls of Donald Trump and others to bar the entry of Muslims to the United States.  The punchline:  "When we demonize Muslims, we destroy ourselves. Embracing Muslims as part of our political community is to acknowledge and nurture the health of our democracy and the vibrancy of our global society."


December 20, 2015 in Current Affairs | Permalink | Comments (0)

From the Bookshelves: The Economics of Immigration: Market-Based Approaches, Social Science, and Public Policy by Benjamin Powell, editor



The Economics of Immigration: Market-Based Approaches, Social Science, and Public Policy by Benjamin Powell, editor, Oxford University Press 2015

The Economics of Immigration summarizes the best social science studying the actual impact of immigration, which is found to be at odds with popular fears. Greater flows of immigration have the potential to substantially increase world income and reduce extreme poverty. Existing evidence indicates that immigration slightly enhances the wealth of natives born in destination countries while doing little to harm the job prospects or reduce the wages of most of the native-born population. Similarly, although a matter of debate, most credible scholarly estimates of the net fiscal impact of current migration find only small positive or negative impacts. Importantly, current generations of immigrants do not appear to be assimilating more slowly than prior waves. Although the range of debate on the consequences of immigration is much narrower in scholarly circles than in the general public, that does not mean that all social scientists agree on what a desirable immigration policy embodies. The second half of this book contains three chapters, each by a social scientist who is knowledgeable of the scholarship summarized in the first half of the book, which argue for very different policy immigration policies. One proposes to significantly cut current levels of immigration. Another suggests an auction market for immigration permits. The third proposes open borders. The final chapter surveys the policy opinions of other immigration experts and explores the factors that lead reasonable social scientists to disagree on matters of immigration policy.

Table of Contents

 1. Introduction  Benjamin Powell


2. The Economic Effects of International Labor Mobility  Peter T. Leeson and Zachary Gochenour

3. The Fiscal Impact of Immigration   Alex Nowrasteh

4. The Civic and Cultural Assimilation of Immigrants to the United States   Jacob Vigdor

5. Employment VISAs: An International Comparison Alexandre Padilla and Nicolás Cachanosky


6. Immigration Reform: A Modest Proposal   Richard K. Vedder

7. Immigration's Future: A Pathway to Legalization and Assimilation  Herbert London

8. A Radical Case for Open Borders   Bryan Caplan and Vipul Naik

9. Conclusion: Alternative Policy Perspectives   Benjamin Powell


December 20, 2015 in Books, Current Affairs | Permalink | Comments (0)

Saturday, December 19, 2015

Visa Waiver "Reform" Just Happened

Yesterday, President Obama signed an omnibus spending bill that will fund the government through September.

The bill also "reforms" the visa waiver program. (The changes are at pages 1869-1888 of the bill). As I explained last week, the changes include:

  • excluding from the VWP travelers who have "been present" in Iraq, Syria, Iran or the Sudan since March of 2011.
  • excluding from the VWP travelers who are dual nationals of Iraq, Syria, Iran or the Sudan.

Let's talk about who this bill is going to affect. It will affect journalists, missionaries, and doctors. It will affect dual citizens who traveled home to check on family and friends in a time a crisis. And it will affect Americans.

Yes, Americans. Because, as noted on the hill.com this week, our partners in the VWP are almost certainly going to respond in kind. And that means American travelers who have been to these countries or who are dual nationals, will be subject to similar treatment.

And what's the point of these hoops? To deter terrorism? To ferret out those who have visited terror training camps recently?

If so, singling out travelers and nationals of Iraq, Syria, Iran or the Sudan is a pretty poor proxy. In the past few months, reporting on overseas terrorist camps has focused on Afghanistan, the Afghanistan-Pakistan border, Libya, Egypt's Sinai Peninsula, and Yemen.

My point is not to suggest broadening the exclusion list. (Congress has suggested it's willing to do that.) Rather, it's to show that the bill, if targeting to combat terrorism, is a total mismatch.

We have to remember the point of the VWP. It's to facilitate travel for business and tourism from countries that we consider friends and allies. The new hurdles and exclusions just created are unlikely to have any real effect in the war on terrorism. They do, however, have the potential to tarnish our important global relationships.


December 19, 2015 in Current Affairs | Permalink | Comments (0)

Top 10 Immigration Stories of 2015

Immigration was in the news last year. Here are my top 10 immigration stories of 2015.



1.  Donald Trump  

How could Donald Trump not be the top immigration story of 2015? He said things about immigrants and immigration that had not been heard from mainstream political candidates for generations.

As the Republican front-runner in the race for the presidency, Trump consistently took extreme positions on immigration, beginning with a focus on Mexican immigrants as criminals, even going so far as to call for a revival of the 1954Operation Wetback,”  and later moving to target Muslims (and here) and their families.  Even when criticized, Trump generally refused to back down.

The Trump had quite an impact on popular culture as well as political news, including an appearance on Saturday Night Live and inspiring Donald Trump piñatas.




2. Syrian Refugees

Civil war fueled mass migration from Syria, which generated significant concern throughout Europe.  Some nations, such as Hungary, were less welcoming than others, like Germany. The large numbers of persons fleeing Syria contributed to the mixed responses. The picture of a young Syrian boy who died in his effort to reach safety tugged at the heartstrings and brought home the human reality of what was at stake.

The vetting process for refugees coming to the United States provoked discussion and concern




3. President Obama, Deferred Action 2014, and the Supreme Court

Why is this man smiling?  The challenge of 26 states to President Obama’s 2014 expanded deferred action program in Texas v. United States was clogged up in the courts for the year, with the Supreme Court now considering possible review.  In November, the U.S. Court of Appeals for the Fifth Circuit affirmed the district court's preliminary injunction putting the new program on hold.

2015 was the third anniversary of the Deferred Action for Childhood Arrivals program.




Who is this man?  Martin O'Malley, Democratic Presidential Candidate

4. Immigration and the Presidential Campaign

Donald Trump is only one of the presidential candidates. Immigration so far has been a prominent issue for both the Democrats and Republicans. Generally speaking, Democrats were moving left on immigration while Republicans veered right.

The Republican debates (and here) were fascinating from an immigration perspective, with each candidate seeking to be tougher than the next one.

Democrats also sparred on immigration Hillary Clinton voiced support for comprehensive immigration reform and to do more on immigration than President Obama did.  Although its took him a while, Democratic insurgent Bernie Sanders took a firm position in support of comprehensive immigration reform and a "fair and humane immigration policy."  On life support in the polls, Maryland former Governor Martin O'Malley had a detailed and pro-immigration program laid out from the beginning of his candidacy and may be the most pro-immigration candidate.




5. Terrorism, San Bernadino, Paris, Etc.

Terrorist acts resulting in mass death in sleepy San Bernadino, California and in urbane Paris, France grabbed worldwide headlines. The woman involved in the San Bernadino violence entered the United States on a fiancé visa; two Senators demanded more information about her immigration records. In Paris, one of the terrorists was a refugee.

The involvement of Muslim immigrants in both terrorist incidents led to a focus on background checks in immigration and refugee processing. It provoked Donald Trump to float the idea of a temporary ban on all Muslim migration to the United States.  




6. A Tragic Killing in San Francisco

Last summer in San Francisco, a repeat criminal (and immigration) offender in the nation unlawfully was released by the San Francisco Sheriff’s office as required by the city’s “sanctuary ordinance.”   He has been charged with killing a young woman named Kate Steinle. The national reaction was swift, putting undocumented immigration in the spotlight.  One result was a political attack on state and local “sanctuary laws” and a national outpouring of concern.



7.  China Becomes the Number One Immigrant Sending Country, More Mexicans Now Leave than Come to the United States.

This story did not make as big of a national splash as it should have. A Pew Research Center study found that more Mexicans left than came to the United States from 2009-14.  And China became the top country sending legal immigrants to the United States.  The changing immigration demographics will no doubt influence future immigration concerns and law and policy responses.  



8. The Immigration Act of 1965 Turns 50

In 1965, President Lyndon Johnson signed into law the Immigration Act of 1965, which abolished the discriminatory national origins quotas system and eliminated the last vestiges of the invidious Chinese Exclusion laws. At the same time, through a new Western Hemisphere ceiling, the Act began a process of tightening immigration from Mexico and all of Latin America, which has led to the undocumented population in the millions from Mexico and Latin America that we have today.  Most scholarly studies of the 1965 Act focus on its benefits to opening immigration from Asia but fail to consider the restrictive impacts on migration from Mexico and Latin America. Jack Chin and Rose Villazor have edited a wonderful book on the Immigration Act of 1965 that offers a rich and complex study of its benefits and costs. 





9. The Pope Visits the United States

As an aside, it seems much more natural to me to refer to Pope Francis as “the Pope” than to call Donald Trump “the Donald.” In any event, the Pope visited the United States and inspired the nation by calling for decent and respectful treatment of immigrants.  In a wonderful moment, Sophie Cruz, the daughter of undocumented immigrants, runs out to greet the Pope as his motorcade traveled the streets of Washington, D.C.


10. Miscellaneous

There were many other news items that I could mention but none were earth-shattering. Although perhaps interesting to immigration law professors, the Supreme Court’s immigration decisions were not blockbusters.  Convicted of the 2013 Boston bombing, Dzhokhar Tsarnaev, whose family from Chechnya had been granted asylum, was given the death penalty for his role in the act.  Last but not least, Loretta Lynch was confirmed as the new Attorney General of the United States.


December 19, 2015 in Current Affairs | Permalink | Comments (0)

Friday, December 18, 2015

Fatma Marouf: Plenary Power Does Not Justify Prejudice


Plenary Power Does Not Justify Prejudice by Professor Fatma Marouf 

Since Donald Trump announced his proposal to exclude all Muslims from the United States, law professors have provided conflicting assessments of the constitutionality of this plan. Some have argued that plenary power -- the broad authority given to Congress and the President to regulate immigration -- would permit it; others contend that principles of equal protection, due process, and freedom of religion would prohibit it, without specifically addressing the plenary power that applies in the immigration context.  The critical fact here is that the plenary power remains subject to important constraints.

Over forty years ago, in Kleindienst v. Mandel, the Supreme Court explained that the Executive does not have “unfettered discretion” to deny someone entry to the U.S: there must be a “facially legitimate and bona fide reason” for the exercise of discretion. Dr. Mandel was a revolutionary Marxist who was inadmissible under a law that excluded any advocate of communism. Although a group of U.S. professors wanted him to visit so they could debate him, the Supreme Court found that Dr. Mandel’s abuse of past visas provided a legitimate and bona fide reason for denying him entry.

Just six months ago, the Supreme Court revisited the reviewability of a visa denial in Kerry v. Din, a case brought by a U.S. citizen who had filed an immigrant petition for her husband. The consular officer who denied the visa had stated only that Fauzia Din’s husband was inadmissible under a section of the Immigration and Nationality Act that refers to “terrorist activities.” The Ninth Circuit found that the failure to provide a more detailed explanation violated due process. But a closely divided Supreme Court reversed. Applying the standard in Mandel, Justice Kennedy’s concurrence concluded that the citation to the statutory ground was sufficient to satisfy due process, stressing the national security context.

Trump’s proposal, however, differs from the denial of a visa in an individual case. Trump would be hard-pressed to show a “facially legitimate and bona fide reason” for excluding all Muslims from the United States. While it is theoretically possible that “terrorist activities” could be cited in support of a denial in each case (since no further explanation or factual basis is required under Din), the sweeping nature of the exclusionary rule would call into question whether this reason is bona fide. 

Beyond Mandel, the Supreme Court’s 1976 decision in Mathews v. Diaz provides that federal classifications that distinguish among groups of aliens are subject to rational basis review, which requires a law to be rationally related to a legitimate government interest. Trump’s proposal would not pass this test. There are 1.6 billions Muslims in the world – 23% of the global population. Muslim terrorists represent a miniscule fraction of this population. Moreover, Muslims have committed only a small percentage of the terrorist attacks in the U.S post 9/11 – fewer, in fact, than right-wing extremists.[1] Thus, no rational relationship exists between Trump’s proposal and a legitimate interest in national security.

A reviewing court would also likely call into question whether Trump’s proposal is really based on a legitimate interest. In cases where a law is “born of animosity towards the class of persons affected,” the Supreme Court has applied heightened scrutiny, so-called rational basis with bite. Under this heightened standard, the Court has struck down laws based on irrational prejudice against the intellectually disabled (Cleburne), gays (Romer), and hippies (Moreno). In Cleburne, the Court condemned excluding a group based on “mere negative attitudes, or fears”; in Moreno, it invalidated a law motivated by “a desire to harm a politically unpopular group”; and in Romer, it rejected “a status-based classification of persons undertaken for its own sake.”

Trump’s proposal to exclude all Muslims from the United States reflects the same type of animus that led the Court to reject these laws under a heightened standard of review.  His proposal is so sweeping that it is reminiscent of the Asiatic Barred Zone created by the 1917 Immigration Act, which barred anyone from a vast region that included much of the Middle East, South Asia, Central Asia and Indonesia.  This Act, like the Chinese Exclusion Act that preceded it, was fueled by fear and would not be found to further a legitimate government interest today, much like Trump’s recent proposal.

Even if Trump’s proposal never comes to pass (and most likely it never will), it is still dangerous. The most disturbing dimension of the Supreme Court’s decision in Din is that any Muslim can now be denied a visa based on alleged “terrorist activities” without an explanation, making it impossible to challenge a denial that is based purely on prejudice. By drumming up animus against Muslims, Trump encourages such discrimination in the use of discretion, allowing the din of a cheering crowd to drown out the voice of reason.

 [1] http://www.nytimes.com/2015/06/16/opinion/the-other-terror-threat.html



December 18, 2015 in Current Affairs | Permalink | Comments (0)