Monday, February 29, 2016
In light of Supreme Court Justice Antonin Scalia’s untimely passing earlier this month, ImmigrationProf provides this overview of his immigration jurisprudence. His immigration opinions demonstrate that, although Justice Scalia was never one to hide his political views, his firmly held legal principles about statutory interpretation and deference to agency action, deeply influenced his immigration opinions.
Notable Majority Opinions
Justice Scalia wrote his first immigration decision for the Supreme Court in 1987 in Kungys v. U.S. The case involved a naturalized citizen who the Department of Justice accused of executing thousands of Jewish Lithuanians in 1941, before he came to the United States. In an action brought to revoke Kungys’s citizenship, Justice Scalia for the Court determined the materiality standard to apply to the “concealment or misrepresentation” clause and the false testimony provision of the “illegally procured” clause of 8 U.S.C. § 1451, which authorizes the revocation of naturalization. Justice Scalia held, in an opinion focusing on the proper interpretation of the statute, that the appropriate standard was whether the concealments or misrepresentations (in this instance, Kungys’ place and date of birth) had a “natural tendency to influence the [government's] decision.” Justice Scalia concluded that Kungys’ misrepresentations in his naturalization petition were not “material.” The case was remanded to the court of appeals, with Justice Scalia emphasizing the “unusually high burden of proof in denaturalization cases.”
In INS v. Elias-Zacarias (1992), Justice Scalia for the Court examined whether a Guatemalan asylum-seeker could obtain asylum based on the claim that a guerrilla organization attempted to coerce him into performing military service. Relying on the “ordinary meaning” of the statute, he found that Elias-Zacarias had failed to express a political opinion hostile to the persecutor in refusing to join the guerilla movement and thus could not establish “persecution on account of political opinion.” Consequently, Justice Scalia determined that Elias-Zacarias failed to establish a well-founded fear of persecution with sufficient “clarity necessary to permit reversal” of the Board of Immigration Appeals' finding to the contrary. The practical effect of basing asylum on the asylum-seeker’s, and not the persecutor’s, political opinion has been the imposition of a heavy burden on asylum-seekers; they are required not only an affirmative expression of political opinion, but one hostile to their persecutors. In many countries, including Guatemala, persons often try to keep their political views to themselves to survive. Under Elias-Zacarias, these people are generally ineligible for asylum.
Writing for the majority in Reno v. Flores (1993), Justice Scalia, with characteristic deference to administrative agencies, upheld an Immigration and Naturalization Service (INS) policy that provided that detained unaccompanied minors could only be released to parents, legal guardians, or close relatives, but not “other responsible adults.” Respondents challenged the regulation, 8 C.F.R. 242.24, establishing this policy, asserting that it violated due process, equal protection, and went beyond the scope of the Attorney General’s discretion to make detention and release decisions. Justice Scalia reversed the lower court ruling invalidating the regulation, holding that the INS policy was a “reasonable response to the difficult problems presented” by the apprehension of unaccompanied minors. He acknowledged that other policies may be better, but declined to act as a “legislature charged with formulating public policy.”
In an opinion for a unanimous Court, Justice Scalia in INS v. Yueh-Shaio Yang (1996) held that the U.S. government may take into account acts of fraud committed by a noncitizen in connection with entry into the United States. He noted that “[a]lthough it is the INS's settled policy to disregard entry fraud, no matter how egregious, in making the waiver determination,” this policy is the “INS's own invention and is not required by the statutory text.” In adhering to the statutory text, Justice Scalia deferred to the judgment of the Attorney General to distinguish between noncitizens who engaged in a pattern of fraud and those who committed a “single, isolated act of misrepresentation.”
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). In 1999, Justice Scalia applied a provision of IIRIRA for the Court in Reno v. American-Arab Anti Discrimination Committee. The “L.A. 8” brought suit, claiming that they were targeted for removal because of their affiliation with a politically unpopular group (the Popular Front for the Liberation of Palestine). Applying a provision of IIRIRA, Justice Scalia held that the Court lacked jurisdiction to second-guess the Attorney General’s unreviewable discretion to bring removal orders against a noncitizen. Although the Court dealt with the petitioners’ First Amendment claim only as a secondary matter, the decision has been viewed by some as a blow to First Amendment rights of noncitizens. Essentially, the opinion implied that the free speech rights of noncitizens were irrelevant if the government had an independent reason to deport them.
In a somewhat surprising turn of events, Justice Scalia extended the holding of an immigration case in which, four years earlier, he had dissented (Zadvydas v. Davis, below). Zadyvas held that the U.S. immigration authorities could detain admitted aliens only so long as “reasonably necessary” to effectuate removal. Justice Scalia, in Clark v. Martinez (2005), extended this holding to inadmissible aliens as well. As a result of this decision, several hundred long-term detainees were ordered released from the custody. Justice Scalia also found that Zadyvas’s presumptive detention period of six months governed a case involving two inadmissible Cuban nationals.
On the same day as Clark v. Martinez, Justice Scalia wrote for the Court in Jama v. Immigration and Customs Enforcement (2005). In looking at whether a country’s inability to consent in advance to a noncitizen’s removal, Justice Scalia held that though nonacceptance could be “one of the factors considered in determining whether removal to a given country is impracticable or inadvisable,” the Immigration and Nationality Act did not make this dispositive. In response to petitioner’s claim that an acceptance requirement is “manifest in the entire structure” of the INA, Justice Scalia declined to make such an inference, given that he read the express language of the statute as indicating otherwise.
Although not writing for a majority of the Court, Justice Scalia wrote for a plurality in Kerry v. Din (2015). The plurality reasoned that, “even accepting the textually unsupportable doctrine of implied fundamental rights,” a U.S. citizen wife was not deprived of a fundamental liberty interest when her noncitizen spouse was denied entrance into the United States because of his alleged terrorist activity. To find such a right would, as Justice Scalia’s wrote, require “diluting the meaning of a fundamental liberty interest.” He characterized Congress’s concern for the unity of immigrant families as a “matter of legislative grace rather than a fundamental right.” Rejecting the idea that Din had an identifiable right protected by due process, Justice Scalia concluded that the explanation given to Din by the State Department regarding her husband’s denial of entry was “more than the Due Process Clause required.”
Notable Concurring and Dissenting Opinions
In INS v. Cardoza-Fonseca (1987), a major decision on the different evidentiary burdens for asylum and withholding of deportation, Justice Scalia concurred in the judgment. He emphasized that he agreed "with the Court that the plain meaning of `well-founded fear' and the structure of the Immigration and Nationality Act (Act) clearly demonstrate that the `well-founded fear' standard [for asylum] and the `clear probability' standard [for withholding of removal] are not equivalent." Justice Scalia relied on the plain language of the statute for that conclusion and rejected the majority's analysis of legislative history, which he criticized frequently and vociferously. Because the plain language of the statute answered the question, Justice Scalia statute thought that the Court need not discuss deference to the U.S. government's interpretation of the statute under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (1984).
In what was criticized by Supreme Court observers as nothing less than a political attack on the Obama administration’s immigration policies, Justice Scalia’s dissent in Arizona v. United States (2012) would have upheld Arizona’s controversial immigration enforcement law known as SB 1070 in its entirety. He characterized the majority’s decision as a denial of the power of the states “to exclude from the sovereign’s territory people who have no right to be there.” He contended that Arizona as a sovereign state had the right to confront the “illegal immigration problem,” because its citizens felt “under siege” by large numbers of immigrants who “invade their property,” “strain their social services,” and “place their lives in jeopardy.” Justice Scalia argued that federal failure to “remedy the problem” justified the Arizona law.
In Zadvydas v. Davis (2001), the majority, in an opinion written by Justice Breyer, held in part that the Immigration and Nationality Act did not allow the Attorney General to indefinitely detain immigrants pending removal, with the presumptive detention period is six months. Justice Scalia declared that a noncitizen under final removal order has no legal right to release into the United States. Because such a person has “totally extinguished whatever right to presence in this country he possessed,” the Attorney General, in Justice Scalia's view, retained unbridled discretion over his custody.
Some might reflexively label Justice Scalia as “conservative” or “anti-immigrant” in his immigration jurisprudence. However, a closer look reveals that Scalia’s political views did not exclusively guide his opinions. Also apparent was his focus on deference to administrative agencies (at least so long as they were interpreting the statutes consistently) and a general contempt for judicial activism. Another aspect of his general approach was his insistence on the interpretation of immigration statutes according to their ordinary meaning. For example, Justice Scalia, in adhering to the language of the immigration statute, voted in favor of noncitizens in several crimmigration cases, including Moncrieffe v. Holder (2013). (holding that a low-level marijuana offense could not be considered an “aggravated felony” for deportation purposes under the immigration statute) and Mellouli v. Lynch (2015) (reversing a removal order based on a drug paraphernalia conviction).” (“Justice Scalia’s crimmigration legacy” is reviewed here.). Although it may be true that more of Justice Scalia’s opinions hurt immigrants than helped them, his pro-immigrant rulings and devotion to certain doctrinal and other approaches should not be ignored from discussions of his immigration legacy.
Sadie Weller is a law student at the University of California, Davis School of Law.
Immigration Article of the Day: Navigating Liminal Legalities Along Pathways To Citizenship: Immigrant Vulnerability and the Role of Mediating Institutions
Navigating Liminal Legalities Along Pathways To Citizenship: Immigrant Vulnerability and the Role of Mediating Institutions by Sameer M. Ashar (UC Irvine School of Law), Edelina M. Burciaga (University of California, Irvine - Department of Sociology), Jennifer M. Chacón (University of California, Irvine School of Law), Susan Bibler Coutin (University of California, Irvine School of Law), Alma Garza (University of California, Irvine - Department of Sociology), Stephen Lee (University of California, Irvine School of Law), February 17, 2016
Abstract: In this report, we summarize the findings of research funded by the Russell Sage Foundation and conducted in Southern California over the course of eighteen months between January 2014 and September 2015. This time period coincided with the announcement of and subsequent legal challenges to the DACA and DAPA program – a period characterized by extreme legal uncertainty over the availability and scope of these “Executive Relief” programs. Drawing from 16 in-depth interviews with staff of 10 different immigrant serving organizations and 47 interviews with noncitizens in the Los Angeles and Orange County areas, we captured the on-the-ground challenges facing noncitizens and community based organizations as the scope and availability of Executive Relief was debated. In our research, we focused on the hardships and barriers to incorporation imposed by liminal legal status, the challenges faced by organizations mediating between their constituents and the state in periods of legal uncertainty, and the ways that uncertainty has reshaped the social, political and legal environment in which immigrant-serving organizations and their constituents interact. Our research is ongoing, but here we offer our preliminary findings for some of our research questions.
Sunday, February 28, 2016
A small gathering of Ku Klux Klan members gathered for a rally in Anaheim, CA (just minutes away from Disneyland, as well as my office) on Saturday. The LA Times reports that one of the described purposes of the rally was to protest "illegal immigration and Muslims." Opponents of the KKK appeared at the rally as well, and the event ended in 13 arrests and 5 people being injured (including 3 stabbings). The KKK apparently has a long history in Anaheim, with approximately 300 Klansmen living there at the group's height in the 1920s.
What would cause the KKK to feel empowered to make a public appearance now? It may be too soon to tell. It is worth noting, however, that Saturday's events took place during the same weekend that former KKK leader David Duke endorsed Donald Trump's candidacy for President, an endorsement over which Trump apparently stated that he did not enough have information to disavow.
The Trump Effect Again: Chants of "Trump" to Taunt Racially-Diverse Iowa High School Basketball Team
The last name of Republican presidential candidate Donald Trump apparently has been turned into a racial insult for some people. As readers of this blog are well aware, Trump has spoken bluntly about the need to deport Mexican immigrants and has pledged to extend the wall along the entire U.S.-Mexico border.
High school students in Des Moines, Iowa, this week chanted "Trump! Trump!" after a basketball game. The chanters were from Dallas Center-Grimes High, which has a predominantly white student body. Their school's team had just lost to Perry High School, which has a more diverse student population (and many Latinos).
This is a letter for the community of Perry. It is no secret that our great town is incredibly diverse, the student body and staff at Perry High School see this as an advantage and we come together as a town and celebrate our diversity. But, recently there has been a new chanting trend uprising at high school basketball games directed at us. Perry is competitive and we are known for being loud! We love a student section that can interact with us and make the atmosphere full of energy and keep the ambiance fun. We in the student body and community members who cheer on the Perry basketball team have been exposed to this new derogatory chant, “Trump.” It is a chant said to intimidate and discriminate our Latino/Hispanic students and it is a chant that is fueled by racism. Monday night at the boys district game against DC-G in Adel, was the fourth instance this chant was heard. Monday night however was the first time we were exposed to such racism on social media, just to show how big of an issue this is actually becoming. We at Perry High School acknowledge and are aware of the fact that people are entitled to their own political views and that they are to be respected, but when a name is chanted in a racial manner and used to intimidate us is when the line is drawn. Perry has been a racial target for many towns for a long time now, and now I am tackling this problem. I urge that you stay alert to chants like “Trump” or “Mini-Mexico” and that you please take action. We know racism is alive and well, but we refuse to undergo discrimination at Iowa high school athletic events. My name is Kevin Lopez, I respect the game and believe in The Bluejay Way, to be LOUD, be PROUD, and last but most certainly not least, be POSITIVE.
Thank you, from the Perry Student Body. Go Bluejays.
Immigration Article of the Day: Domestic Victims Aren't the Only Victims: Deporting Aliens Who Commit Violent Crimes by Carly Self
Abstract: Aliens may be deportable for a wide variety of wrongs, ranging from minor issues like failing to provide notice of a change of address to serious crimes like espionage and aggravated felonies. But unless they commit crimes involving moral turpitude or crimes of domestic violence, they are not removable for just any violent crime.
Under section 237(a)(2)(E)(i) of the Immigration and Nationality Act (INA), “[a]ny alien who at any time after admission is convicted of a crime of domestic violence...is deportable.” The problem is determining whether the domestic requirement needs to be an explicit element in the underlying state statute to make the alien removable under the federal INA.
Courts use three approaches to determine whether a state crime satisfies the federal deportation statute. The categorical and modified categorical approaches require state statutes to include the relevant federal elements as part of the state offense. But the circumstance-specific approach allows a court to consider other evidence in determining whether a state conviction satisfies the federal INA’s requirements. Federal circuit courts are split about whether courts may use the circumstance-specific approach in interpreting the INA's domestic requirement.
This Article will analyze the three approaches and determine that the circumstance-specific approach should be used. And it will propose that the INA should be modified, so aliens would be deportable for all crimes of violence, not only for crimes of domestic violence.
Saturday, February 27, 2016
Actress Milana Vayntrub is know for her work as the helpful AT&T store rep in the phone company's ubiquitous commercials.
She's also a refugee. She and her family, who are Jewish, fled the Soviet Union in the 1980s because of religious persecution. She was just three at the time.
As a refugee, Vayntrub was particularly effected by the plight of Syrian refugees in Europe. And she decided to do something about it. She founded #CantDoNothing.
In her own words, here's Vayntrub explaining #CantDoNothing
Justice Scalia's untimely death has led to much speculation who might be nominated to fill his seat on the Supreme Court. One of the names mentiond as a possibility is Sri Srinivasan. Srinivasan was born in India and currently is a judge on the U.S. Court of Appeals for the District of Columbia Circuit. In May 2013, the U.S. Senate confirmed Srinivasan to the court of appeals by a vote of 97–0. Srinivasan previously served as Principal Deputy Solicitor General of the United States and argued 25 cases before the U.S. Supreme Court. After law school, Srinivasan served as a law clerk for U.S. Court of Appeals for the Fourth Circuit Judge J. Harvie Wilkinson III and then U.S. Supreme Court Associate Justice Sandra Day O'Connor.
Srinivasan did two stints at the law firm of O'Melveny & Myers. While at the firm, Srinivasan was counsel of record in the case of Carachuri-Rosendo v. Holder, in which a unanimous Supreme Court held that a minor drug offense was not an "aggravated felony" under the immigration laws and did not trigger mandatory removal of a lawful permanent resident from the country. Srinivasan convinced the Court to reverse a lower court ruling to the contrary. Justice John Paul Stevens wrote the opinion for the Court; Justices Scalia and Thomas each filed an opinion concurring in the judgment.
I previously summarized the Court's ruling in Carachuri-Rosendo v. Holder in an article analyzing the Supreme Court's recent immigration cases as follows (footnotes omitted):
The immigration statute makes lawful permanent residents convicted of an "aggravated felony" ineligible for a form of relief from removal known as "cancellation of removal." Such relief, if granted, permits the noncitizen to lawfully remain in the United States. Over the last several decades, Congress has progressively expanded the definition of an aggravated felony and thus subjected growing numbers of immigrants convicted of crimes to mandatory detention and removal. The trend reflects the political unpopularity in Congress of noncitizens convicted of crimes, as well as the consistent popularity of tough enforcement measures directed at immigrants.
With congressional expansion of the criminal grounds for removal, combined with the executive branch's increased removal efforts directed at noncitizens convicted of crimes, the U.S. government now removes from the country approximately 400,000 immigrants each year. Many are lawful permanent residents convicted of relatively minor criminal offenses. As one commentator has aptly observed, "[t]he deportation of 'criminal aliens' is now the driving force in American immigration enforcement. . . . In effect, federal immigration enforcement has become a criminal removal system."
In Carachuri-Rosendo v. Holder, the Court held that Carachuri-Rosendo's second minor drug possession offense did not constitute an aggravated felony and therefore could not serve as grounds for automatic removal of a lawful permanent resident. It specifically addressed the question whether a state misdemeanor conviction for drug possession may amount to an aggravated felony under the U.S. immigration laws. A lawful permanent resident with four U.S. citizen children, Jose Angel Carachuri-Rosendo immigrated to the United States from Mexico in 1993. He subsequently was convicted for (1) misdemeanor possession of marijuana, for which he received a twenty-day jail sentence, and (2) misdemeanor possession of one tablet of a prescription drug (Xanax), for which he received a ten-day sentence. His two relatively minor drug possession convictions suggest that Carachuri-Rosendo was little more than a small-time drug offender.
Federal law provides that, when a person is convicted of possessing a controlled substance after a previous drug conviction, the prosecutor may seek what is known as a "recidivist enhancement," which converts the second misdemeanor into a felony conviction. To secure such an enhancement, the prosecutor must comply with a number of procedural safeguards designed to protect the defendant.
The prosecutor failed to pursue a recidivist enhancement in Carachuri-Rosendo's second drug possession prosecution. Nonetheless, the immigration court reasoned that, because Carachuri-Rosendo could have been prosecuted for a felony, he effectively had been convicted of an aggravated felony and, thus, was not eligible for cancellation of removal. The BIA agreed. The court of appeals denied Carachuri-Rosendo's petition for review of the removal order. To resolve a conflict among the circuits, the Supreme Court granted certiorari.
In another opinion by Justice Stevens, the Court held that Carachuri-Rosendo's second minor drug possession offense did not constitute an aggravated felony and, thus, could not serve as grounds for automatic removal. The Court found that, unless the second conviction is in fact based on a prior conviction (and the recidivist enhancement procedure followed), a misdemeanor drug possession offense cannot constitute an aggravated felony.
The Court reasoned that the U.S. government's position ignored the plain language of the INA, which only prohibits the award of cancellation of removal when a noncitizen "has . . . been convicted of a[n] aggravated felony." The Court further observed that one does not ordinarily think of a ten-day sentence for unauthorized possession of a single prescription pill as an aggravated felony. 92 Citing 2004 precedent, the Court noted that courts should construe any ambiguities in criminal statutes cross-referenced in the immigration laws in favor of the noncitizen, a variation of the time-honored rule of lenity historically applied to the interpretation of penal laws.
Justices Scalia and Thomas each separately concurred in the judgment. Both Justices agreed with the holding of the majority. Each, however, would have reached the conclusion through slightly different analyses of the statutory text and relevant precedent.
In sum, the Supreme Court in Carachuri-Rosendo v. Holder engaged in unremarkable statutory interpretation of the immigration laws and rejected the U.S. government's reading of the statute. A majority of the Court relied on a variant of the rule of lenity to interpret statutory ambiguities in favor of Carachuri-Rosendo and to find him eligible for relief from removal.
The Justices unanimously agreed on the ultimate disposition of the case. Following standard practice, the Supreme Court granted certiorari, vacated the judgments, and remanded for further consideration eighteen cases raising similar issues in light of its decision in Carachuri-Rosendo v. Holder. The relatively large number of cases subject to the Court's ruling is a by-product of the Obama administration's concentrated efforts to remove noncitizens with criminal convictions.
Friday, February 26, 2016
A number of immigration and other professors have sent a letter to President Obama about the "TPS Designation Will Provide Some Needed Relief to Humanitarian Refugee Crisis." It begins:
Dear Mr. President:
We are a group of professors at U.S. law schools and universities with experience teaching,
researching and practicing in the areas of immigration, human rights, and international law.
We write to offer our counsel to you and your administration as you respond to the refugee
emergency involving unaccompanied children and families with children from Central
We recognize the challenges are complex, and that you have taken some notable steps to
respond to the ongoing humanitarian crisis, such as the recent decision to engage with the
United Nations High Commissioner for Refugees (UNHCR) to screen those fleeing extreme
and growing violence in Central America to determine if they are eligible for U.S. protection.
While these steps may help as part of a regional response to the ongoing crisis, the United
States has laws and policies in place to provide immediate protection to individuals who
have fled the horrific and escalating violence in the region and are here.
We urge that that the Secretary of the U.S. Department of Homeland Security (DHS), in
consultation with the Secretary of State, designate the countries of: El Salvador, Guatemala,
and Honduras (an area known as the “Northern Triangle”) for Temporary Protected Status
(TPS). These three countries warrant TPS designation in light of the pervasive violence that
has precipitated a humanitarian crisis of persons fleeing the Northern Triangle countries.
In recent days, Donald Trump has been attacked on the immigration front. The attacks have focused not on his strident immigration enforcement positions, however. They instead have focused whether, as a entrepreneur, he practices what he preaches.
In a Republican presidential debate last night, Marco Rubio went after Trump on the hiring of undocumented Polish workers many years ago. According to PolitiFact, between 1979 and 1980, Trump hired a contractor to demolish an old building in Manhattan to make way for Trump Tower. To meet a tight deadline, the contractor brought on 200 undocumented laborers from Poland dubbed the "Polish Brigade." The Polish employees were off-the-books, working 12-hour shifts seven days a week for $4 to $5 an hour, with no overtime. Some workers were never paid what they were owed. In 1983, union members sued a union leader, Trump and, the contractor for pension and welfare funds lost by the hiring of the Polish workers. The plaintiffs alleged that Trump owed the union pension fund $1 million. Trump blamed the violations on the contractor and denied knowing that the Polish workers were undocumented.
In the past, the hiring of undocumented workers has been the death knell of a cabinet nomination. Remember Zoe Baird's scuttled nomination for Attorney General in the Clinton administration?
And, there is a New York Times report yesterday a Trump resort's alleged preference for the hiring of foreign workers over domestic workers. Trump’s Mar-a-Lago Club in Palm Beach, Florida is the resort.
According to the story,
"Since 2010, nearly 300 United States residents have applied or been referred for jobs as waiters, waitresses, cooks and housekeepers there. But according to federal records, only 17 have been hired. In all but a handful of cases, Mar-a-Lago sought to fill the jobs with hundreds of foreign guest workers from Romania and other countries. . . . [H]e has . . . pursued more than 500 visas for foreign workers at Mar-a-Lago since 2010, according to the United States Department of Labor, while hundreds of domestic applicants failed to get the same jobs."
Trump's campaign website pledges to protect U.S. citizen workers:
Put American Workers First
Decades of disastrous trade deals and immigration policies have destroyed our middle class. Today, nearly 40% of black teenagers are unemployed. Nearly 30% of Hispanic teenagers are unemployed. For black Americans without high school diplomas, the bottom has fallen out: more than 70% were employed in 1960, compared to less than 40% in 2000. Across the economy, the percentage of adults in the labor force has collapsed to a level not experienced in generations. As CBS news wrote in a piece entitled “America’s incredible shrinking middle class”: “If the middle-class is the economic backbone of America, then the country is developing osteoporosis.”
The influx of foreign workers holds down salaries, keeps unemployment high, and makes it difficult for poor and working class Americans – including immigrants themselves and their children – to earn a middle class wage. Nearly half of all immigrants and their US-born children currently live in or near poverty, including more than 60 percent of Hispanic immigrants. Every year, we voluntarily admit another 2 million new immigrants, guest workers, refugees, and dependents, growing our existing all-time historic record population of 42 million immigrants. We need to control the admission of new low-earning workers in order to: help wages grow, get teenagers back to work, aid minorities’ rise into the middle class, help schools and communities falling behind, and to ensure our immigrant members of the national family become part of the American dream.
Additionally, we need to stop giving legal immigrant visas to people bent on causing us harm. From the 9/11 hijackers, to the Boston Bombers, and many others, our immigration system is being used to attack us. The President of the immigration caseworkers union declared in a statement on ISIS: “We've become the visa clearinghouse for the world.”
Immigration Article of the Day: DAPA and the Future of Immigration Law as Administrative Law by Jill E. Family
DAPA and the Future of Immigration Law as Administrative Law by Jill E. Family, Widener University - Commonwealth Law School February 16, 2016 Washburn Law Journal, Vol. 55, 2015 Widener Law Commonwealth Research Paper No. 15-34
Abstract: Immigration law is a type of administrative law, of course. In some ways, however, linking immigration law to administrative law is an awkward fit. As a branch of administrative law, immigration law is about the direct regulation of human beings. In immigration law, administrative law doctrines are applied to determine some of the most fundamental and basic human concerns: where an individual will live and work, and whether that individual will live with family or will be separated from a spouse and children. Also, while immigration law is a part of administrative law, at times the two can appear to be distant cousins. Because immigration law is so technical, requires dedicated study to gain expertise, and perhaps because it involves the regulation of people, immigration law can seem like it occupies its own island, cut-off from the administrative law mainland.
This Essay argues that the litigation over the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) initiative shows that immigration law experts can no longer afford to think of immigration law as in any way estranged from mainstream administrative law principles. Immigration lawyers and scholars must embrace administrative law as their own. This Essay will explore the DAPA litigation and explain that the future of immigration law is tied to the future of administrative law.
From the Bookshelves: Integration Nation Immigrants, Refugees, and America at Its Best by Susan E. Eaton
Integration Nation takes readers on a spirited and compelling cross-country journey, introducing us to the people challenging America’s xenophobic impulses by welcoming immigrants and collaborating with the foreign-born as they become integral members of their new communities. In Utah, we meet educators who connect newly arrived Spanish-speaking students and U.S.-born English-speaking students, who share classrooms and learn in two languages. In North Carolina, we visit the nation’s fastest-growing community-development credit union, serving immigrants and U.S.-born depositors and helping to lower borrowing thresholds and crime rates alike.
In recent years, politicians in a handful of local communities and states have passed laws and regulations designed to make it easier to deport unauthorized immigrants or to make their lives so unpleasant that they’d just leave. The media’s unrelenting focus on these ultimately self-defeating measures created the false impression that these politicians speak for most of America. They don’t.
Integration Nation movingly reminds us that we each have choices to make about how to think and act in the face of the rapid cultural transformation that has reshaped the United States. Giving voice to people who choose integration over exclusion, Integration Nation is a desperately needed road map for a nation still finding its way beyond anti-immigrant hysteria to higher ground.
Al Jazeera provides a report telling the world just how bad the refugee crisis has gotten in Europe. Two men attempted "suicide by hanging themselves from a tree in a central Athens square, in one of the latest scenes of desperation as thousands of refugees remain stranded inside Greece after being blocked from continuing their journey." The men were reportedly from Pakistan. They made nooses from pieces of fabric in Victoria Square, a gathering point for refugees in the Greek capital. Ambulances took the refugees to the hospital.
Thursday, February 25, 2016
The American Civil Liberties Union, National Immigrant Justice Center, and Detention Watch Network have issued a report, "Fatal Neglect: How ICE Ignores Deaths in Detention."
The report emphasizes that "there have been 56 deaths in ICE custody during the Obama administration, including six suicides and at least one death after an attempted suicide." This particular report "focuses on the eight deaths where ODO [ICE's Office of Detention Oversight] identified noncompliance with ICE medical standards as contributing causes; the ODO identified four of these deaths as preventable." The report goes on to explain that "this focus should not excuse several other cases in which ODO identified similar violations of ICE medical standards without drawing causal links between these violations and the deaths," and asserts that the "process is broken; even in the eight cases where ODO death reviews concluded that violations of ICE medical standards contributed to people’s deaths, ICE’s deficient inspections system essentially swept those findings under the rug."
The key recommendations are as follows:
- Immediately reduce immigration detention,
- Improve the delivery of medical care in detention,
- Ensure inspections provide meaningful oversight, and
- Increase transparency of inspections, deaths, and serious medical incidents in detention.
From the UCLA School of Law website:
Hear from three experts who will offer their analyses of immigration law and policy in the context of this election year, drawing on their years of experience in scholarship, advocacy and journalism.
The David J. Epstein Program in Public Interest Law and Policy Presents –
Whither U.S. Immigration Law and Policy? – The 2016 Presidential Campaign
Monday, February 29, 2016
12:10 – 1:20 p.m.
Room 1357, UCLA School of Law
Please RSVP here
Immigration, never far from the headlines, has drawn even greater attention in this election cycle. Our panel discussion will address the role of immigration issues in the 2016 presidential campaign, the influence of the immigration debate and demographic change on politics across the country, and the landscape ahead for action on immigration reform.
Please join us for this wide-ranging discussion with Lawrence Downes, member of the Editorial Board, The New York Times, Hiroshi Motomura, Susan Westerberg Prager Professor of Law, UCLA School of Law, and Cecillia Wang, Director, ACLU Immigrants’ Rights Project. The discussion will be moderated by Ingrid Eagly, Professor of Law and Faculty Director, David J. Epstein Program in Public Interest Law and Policy, UCLA School of Law.
Central America’s Northern Triangle region—made up of El Salvador, Honduras, and Guatemala—has gained notoriety in recent years for its extreme levels of organized crime, gang violence, and poverty. As these problems have intensified, the number of people fleeing from the Northern Triangle to other countries has also skyrocketed. While lower than the surge in summer 2014, the uptick in the number of unaccompanied children and families arriving at the U.S.-Mexico border in the latter months of 2015 is still historically high and serves as a stark reminder of the region’s worsening conditions.
El Salvador, Honduras, and Guatemala were among the five most dangerous countries in the Western Hemisphere in 2015. While Honduras’ homicide rate has decreased over the past few years, El Salvador’s homicide rate has deteriorated significantly—making the country more than 24 times as dangerous than the United States. (see Figure 1).
With the Supreme Court poised to deliberate the fate of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, a new report by the Migration Policy Institute and the Urban Institute finds that work authorization could increase the average DAPA family’s income by 10 percent. The program could also lead to reductions in poverty and other measurable gains for millions of people living in DAPA households, including nearly 4 million children under age 18 who are U.S. citizens.
Using an innovative MPI methodology that permits analysis of the unauthorized population using U.S. Census Bureau data, the report estimates that as many as 3.6 million unauthorized immigrants who are parents of U.S. citizens or lawful permanent residents (LPRs) would be eligible for DAPA. The program, which would provide temporary relief from deportation and eligibility for work authorization, was announced by the Obama administration in November 2014. It was temporarily blocked pending resolution of a legal challenge filed by 26 states, and the Supreme Court is expected to hear oral arguments in the case in April, with a ruling expected by the end of June.
In the report, Deferred Action for Unauthorized Immigrant Parents: Analysis of DAPA’s Potential Effects on Families and Children, MPI and Urban Institute researchers describe the population potentially eligible for DAPA and estimate the effects of work authorization and relief from deportation on family income, poverty and child well-being. Among the key findings of the report, which draws from analysis of 2009-2013 Census Bureau data:
- Controlling for other measureable factors, the average family could expect to see a $3,000 (10 percent) income gain if potentially DAPA-eligible parents obtained work authorization and earned the same as LPR parents with comparable characteristics such as age, educational attainment, English proficiency and length of U.S. residence. As a result, 6 percent fewer DAPA families would be living in poverty.
- Although the labor force participation of potentially DAPA-eligible fathers exceeds immigrant fathers overall and the U.S. born, nonetheless DAPA families have lower incomes (in part because potentially DAPA-eligible mothers’ labor force participation is lower): $31,000 versus $43,000 for all families with immigrant parents and $47,000 for families with U.S.-born parents. The poverty rate for potentially DAPA-eligible families is 36 percent, compared with 22 percent for all immigrant families and 14 percent for families with U.S.-born parents. The report finds DAPA would not have any significant impact on labor force participation rates.
- Of the 3.6 million unauthorized immigrants potentially eligible for DAPA, 3.3 million are parents of U.S.-citizen or LPR children under age 18 who are living with them. Another 340,000 parents of adult children would also potentially be DAPA eligible. An estimated 85 percent of all minor children in potential DAPA households are U.S. citizens.
- More than 10 million people live in households with at least one potentially DAPA-eligible adult. Beyond the 3.3 million potentially DAPA-eligible parents of minor children, an estimated 2.3 million other adults and 4.3 million children under 18 reside in these households. Together with 340,000 DAPA-eligible parents of adult children, as many as 10.2 million people could be affected.
- Sixty-nine percent of the potentially DAPA eligible have lived in the United States ten years or more, and 25 percent at least 20 years.
The report builds on previous research by MPI and the Urban Institute describing the effects of parental unauthorized status on these children, finding that deferring deportation would protect children and families from potentially substantial economic and other harm. “
Republican presidential frontrunner Donald Trump's wife, Melania Trump, is making the news. In deflecting claims that he is anti-immigrant, Trump has on occasion mentioned that his mother was immigrated to the United States from Scotland and that two of his three wives were also born abroad.
Melania Trump, born in the former Yugoslavia (now Slovenia), told MSNBC's "Morning Joe" that she has no problem with her husband's public comments about Mexican and Muslim immigrants, nor his general desire to build a Southern border wall. She said: "I follow a law the way it's supposed to be. I never thought to stay here without papers. I had visa. I travel every few months back to the country, to Slovenia, to stamp the visa. I came back. I applied for the green card. I applied for the citizenship later on after many years of green card. So I went by system. I went by the law, and you should do that."
As Janell Ross of the Washington Post points out,
"what Melania Trump didn't say, but we will, is this: Models like her don't exactly wait in the same much-talked-about immigration line as the average Mexican immigrant -- or, for that matter, immigrant workers who would like to come to the United States from anywhere in the world. You see, models are not just generally beautiful, statuesque women; the U.S. government officially considers them workers with special skills for whom a certain number of visas -- documents needed to immigrate to the United States and obtained after a lengthy application and clearance process -- are set aside each year."
Immigration Article of the Day: 'Immigrants Are Not Criminals': Respectability, Immigration Reform, and Hyperincarceration by Rebecca A. Sharpless
'Immigrants Are Not Criminals': Respectability, Immigration Reform, and Hyperincarceration by Rebecca A. Sharpless University of Miami - School of Law April 3, 2015 53 Houston Law Review 691 (2016)
Abstract: Mainstream pro-immigrant law reformers advocate for better treatment of immigrants by invoking a contrast with people convicted of a crime. This Article details the harms and limitations of a conceptual framework for immigration reform that draws its narrative force from a contrast with people — citizens and noncitizens — who have been convicted of a criminal offense and proposes an alternate approach that better aligns with racial and class critiques of the U.S. criminal justice system. Noncitizens with a criminal record are overwhelmingly low-income people of color. While some have been in the United States for a short period of time, many have resided in the United States for much longer. Many are lawful permanent residents with strong family ties, including U.S. citizen children. Convicted noncitizens who have served significant time in our penal system have experienced the well-documented harms associated with both criminal and civil incarceration. Despite the significant size of this population and its location at the convergence of two heavily criticized law enforcement regimes, these individuals rarely serve as an example for what is wrong with our immigration system. To the contrary, convicted noncitizens are typically regarded as foils for more deserving immigrants. Immigration reformers are not the first to employ a deserving/undeserving narrative as a means of obtaining political gains for some at the expense of others. Across all areas of law reform, policy makers and advocates have sought to generate empathy for groups of people by invoking a contrast with others. In drawing a contrast between a favored group and others who are degenerate, deviant, or less deserving, the “politics of respectability” depends on a contrast with an “out” or deviant group. Racial justice proponents, much more than immigration reformers, have made significant headway in moving beyond respectability politics, especially when critiquing hyperincarceration. This Article describes a different conceptualization of immigrants and crime as well as examples of how certain immigration reform groups have sought to implement aspects of this alternate frame.
CNN released an article concerning a poll done by Monmouth University which states that ⅓ GOP maintain the opinion that Senator Ted Cruz is ineligible for the presidency due to the fact that he was born in Canada and not on U.S. soil. However, Cruz’s mother was born and raised in Delaware, which Cruz maintains makes him a natural born citizen. Cruz has defended his eligibility by referencing the Naturalization Act of 1790 and the Naturalization Act of 1795, but many believe that these do not support his argument.
The underlying question at hand here is, what exactly does it mean to be a “Natural Born Citizen”? The Constitution does not define the phrase. Houston Attorney, Newton Boris Schwarz, has filed suit against Cruz. Michael D. Ramsey, professor of law at the University of San Diego School of Law, states that “Cruz is eligible under the best view of the Constitution’s original meaning. Congress has power to decide who has ‘natural’ citizenship at birth, because that was a power of the English parliament and that is how Congress understood its power in 1790” (Daily Journal, 1/15/16).
The issue of who is a natural born citizen has far reaching implication other than for Ted Cruz. Could the courts declare that U.S. citizens whose children are born outside of the United States borders are not natural born citizens?
Grace Ramirez is an undergraduate student at UC Davis.