Saturday, February 20, 2016
New York Times editorialist Lawrence Downes (who wrote one of the best columns in response to "What part of 'illegal' don't you understand?" in 2007) has published a column addressing Pope Francis's latest standoff with Donald Trump. He highlights actual scriptural authority and theological beliefs of Christians (e.g., "“Blessed are you who are poor, for yours is the kingdom of God.”) and contrasts them to Trump's campaign slogans (e.g., "They're bringing crime. They're bringing drugs. They're rapists.").
Downes writes: "I have little expectation that today’s episode will lead to any enlightening discussion. But I can at least pray that it might lead to more challenging, probing questioning of the candidates — the Republicans, I mean, who are so quick to lead with their Christian faith, and to summon the blessings of God upon their political endeavors....A Christian, by definition, believes Jesus is God, who dwelled among us, who was born poor, who preached a Gospel of love, and — though he surely could have annihilated the Romans and blasted his persecutors and made the sands of Galilee glow in the dark — allowed himself to be put to death by the authorities. Why is that peaceful Christ never present in Republican speeches?"
This powerful campaign advertisement is making news. In a new ad targeted at Latino voters in Nevada, Democratic presidential candidate Hillary Clinton showed an emotional, grandmotherly side and highlighted the human effects of immigration enforcement. In the clip, Clinton sits before supporters in a Las Vegas classroom last week. According to NBC News, the moment happened in a journalist-free moment with young immigrants.
David Brooks in the New York Times offers an entirely reasonable political analysis of what the Republican Party needs to do with respect to immigration. The conclusion reads:
"Donald Trump’s G.O.P. is a rear-window party pining for a white America that is never coming back. Ronald Reagan’s G.O.P., and maybe some future G.O.P., will fix the immigration system and attract the people who will make the country innovative, dynamic and interesting for decades to come."
Friday, February 19, 2016
It's been far too long since "your playlist" has offered a lyrical suggestion to accompany your immigration class. Since it's a Friday afternoon that's begging for a strong beat, I give you Americano by Lady Gaga.
The song is about falling in love with a "girl in east L.A." Gaga belts:
Don't you try to catch me, don't you try to catch me
No, no, no, no I'm living on the edge of
Living on the edge of the law, law, law, law
Gaga herself describes the song as "a big mariachi techno-house record, where I am singing about immigration law and gay marriage and all sorts of things that have to do with disenfranchised communities in America."
It might just be the perfect pairing to Adams v. Howerton, for those still teaching that case.
Understanding the Central American Refugee Crisis: Why They are Fleeing and How U.S. Policies are Failing to Deter Them
Yesterday, the American Immigration Council released Understanding the Central American Refugee Crisis: Why They are Fleeing and How U.S. Policies are Failing to Deter Them by Jonathan T. Hiskey, Ph.D., Abby Córdova, Ph.D., Diana Orcés, Ph.D. and Mary Fran Malone, Ph.D.
The report explains why the Obama Administration’s aggressive deterrence strategy towards potential migrants—including a media campaign launched in Central America highlighting the risks involved with migration, as well as aggressive detention and deportation practices designed to “send a message” to Central Americans—is not working. In fact, these factors did not seem to play a role in the decision calculus of those considering migration.
The paper provides strong evidence that an individual's direct experience with crime is a critical predictor of one’s emigration intentions. Crime is pushing people out, regardless of the risks associated with their journey.
In addition, a Migration Policy Institute report finds that Central American migration to the United States may continue.
Immigration Article of the Day: State Misdemeanant, Federal Felon: Adolescent Sexual Offenders and the INA by Michael J. Higdon
Abstract: At the age of eighteen, Alberto Velasco-Giron had sex with his fifteen-year old girlfriend. As a result, he was deported.
To understand how this could happen, we have to back up a bit. In 1988, Congress amended the Immigration and Nationality Act (“INA”) to state that any alien who commits an “aggravated felony” is subject to deportation. Since that time, Congress has continuously supplemented the definition of aggravated felony to include more and more crimes, the result being that noncitizens were subject to deportation for an ever-growing list of offenses. In 1996, the definition was revised yet again to include “sexual abuse of a minor.” And, on first blush, most would agree that an alien who sexually abuses a child should be removable from the United States.
The problem, however, is that the term Congress chose to use was “sexual abuse of a minor,” not “sexual offense involving a minor.” As a result, some state convictions might involve both sex and minors, but may not necessarily be abusive. Statutory rape provides a prime example of this class of convictions. Today, statutory rape law is quite different than it was when first introduced. No longer is the crime gender-specific and no longer does the crime equally penalize all sexual activities with children under the age of consent. Instead, most states have enacted Romeo and Juliet exceptions, exempting consensual sexual contact between adolescents close in age from the harsher penalties that flow from other forms of child rape. In most instances, activities falling under such an exception qualify as either a misdemeanor or no crime whatsoever — the justification being that these crimes typically are not abusive in nature. Indeed, going back to Velasco-Giron’s case, although he was convicted of statutory rape, his crime was labeled a misdemeanor and his only punishment was unsupervised probation.
Unfortunately, it would take the Board of Immigration Appeals (“BIA”) almost twenty years to recognize that statutory rape is not inherently “abusive.” As a result, during that time, immigration law largely required that individuals like Velasco-Giron be deported, equating their statutory rape convictions with “sexual abuse of a minor” and, thus, an aggravated felony under the INA. In 2015, however, the BIA reconsidered its earlier position and held that some “meaningful age differential” is required before a statutory rape conviction will categorically qualify as an aggravated felony.
This article argues that the BIA’s most recent interpretation, although a move in a right direction, is — just like its earlier interpretation — unreasonable and, thus, not subject to deference by the federal courts. Instead, the only reasonable interpretation of the term “sexual abuse of a minor” is one that is in accord with existing federal statutes defining the actual crime of “sexual abuse of a minor” — an approach that would exempt far more misdemeanor statutory rape convictions than the BIA’s “meaningful age differential” standard currently would allow. Such a conclusion comports not only with Chevron, but with principles of statutory construction and also the rule of lenity.
Although some scholars have commented generally on the treatment of statutory rape convictions under the INA, this is the first article to analyze the aggravated felony provision through the lens of statutory rape law in the United States, focusing on the history and the development of that law as a means of better illustrating the mismatch between the BIA’s interpretation and the current understanding of statutory rape. This is also the first article to explore the impact of the BIA’s 2015 ruling, which attempted to modify and soften its earlier rulings — rulings the circuit courts had used to classify almost all statutory rape convictions, even those classified as misdemeanors, as aggravated felonies under the INA. Finally, this article is likewise the first to propose a comprehensive solution to the dilemma posed by having to discern which statutory rape convictions satisfy the requirement of “abuse” under the INA and which do not.
Thursday, February 18, 2016
This Politico article describes oral arguments that took place in the DC Circuit Court of Appeals in Freedom of Information Act (FOIA) litigation brought by the American Immigration Lawyers Association (AILA). In American Immigration Lawyers Association v. Executive Office for Immigration Review, et al., No. 13-840 (D.D.C. filed June 6, 2013), AILA seeks disclosure of the names of Immigration Judges who have been the subject of disciplinary action. (A copy of the complaint filed in district court is available here).
Interestingly, the article notes that counsel at the Department of Justice argued that immigration "judges are low-level employees, similar to FBI agents, Drug Enforcement Agency agents or so-called 'line' Assistant U.S. Attorneys." Any noncitizen who has appeared in immigration court -- particularly pro se -- would likely beg to differ.
Armen H. Merjian is an Senior Staff Attorney with Housing Works, a NYC provider of HIV/AIDS services. His article--A Guinean Refugee's Odyssey: In Re Jarno, The Biggest Asylum Case In U.S. History And What It Tells Us About Our Broken System 23 Geo. Immigr. L.J. 649 (2009)--was nominated for Throwback Thursday by immprof Andrea Saenz.
The article follows the story of Malik Jarno, a mentally-disabled juvenile asylum seeker from the African nation of Guinea. Malik's family was persecuted by Guinean authorities for their opposition to the Conte regime. His father died in prison. His brother and uncle disappeared and are presumed dead at the government's hands.
Orphaned at 13, Malik traveled to the Ivory Coast and then France with an aunt and cousins. But they abandoned him in France. A neighbor put Malik on a plane to the United States with a fake passport and advised him to claim asylum.
When he arrived in the United States, Malik spoke only Phlar and basic French. He was interrogated by an unqualified interpreter (a Spanish-speaking baggage handler) and ultimately housed in an adult jail to await his immigration proceedings. He would stay in adult gen pop for quite some time.
Malik lost his first asylum hearing. He managed to secure a second asylum hearing, which he also lost. On appeal, Malik won the right to a third trial. This time,
After more than six years, including almost three years behind bars, three trials and countless legal proceedings, motions, and appeals, and an unprecedented expenditure of time, effort and money, including international travel to Africa, Malik, an orphan of the world, had finally found freedom and a permanent home.
Merjian concludes that Malik's treatment in the United States was "nothing short of appalling." He remarks: "The imprisonment of asylum seekers alone, and imprisoning juvenile and/or mentally disabled asylum seekers in adult prisons in particular, is a disturbing human rights violation in urgent need of immediate reform."
Merjian highlights the support that Malik ultimately managed to secure along the way, including "over seventy members of Congress, numerous national and international rights groups, and, critically, the pro bono assistance of nine legal organizations, including some of the country’s top law firms" that spent more than $4 million in fees and expenses towards his asylum claim.
Yet, despite benefiting from this extraordinary and unprecedented assistance, Malik suffered year upon year of profound injustice in his quest for asylum. At every turn in the narrative that follows, one must ask: if this was Malik’s experience, what is the experience of the thousands of adult and juvenile asylum seekers in America each year who are wholly unrepresented and unsupported in their asylum applications?
"One shudders to think," Mejian concludes.
Andrea writes: "the genre of exposing flaws in the legal system through one person’s extremely compelling story is terrific and this is the one I always remember." I can see why.
Wednesday, February 17, 2016
Earlier today, Pope Francis traveled to the U.S.-Mexico border to offer a blessing. In CNN's footage below, you can see the pope ascending a ramp to overlook the Rio Grande. The crosses before him represent migrants who died in their efforts to reach the United States.
After this benediction, Pope Benedict said mass in Ciudad Juarez. The L.A. Times reports that the pope:
decried the global “human tragedy” that forces people to migrate unwillingly, risking death — “each step, a journey laden with grave injustices: the enslaved, the imprisoned and extorted.”
Reserving special mention for women “unjustly robbed of their lives,” Francis said migrants “are the brothers and sisters of those expelled by poverty and violence, by drug trafficking and criminal organizations.”
This Think progress article describes the case of Reynold Garcia, who "was reportedly lured out of a church with fake text messages before being apprehended by federal agents last month, an unsettling incident that is raising questions about the often manipulative tactics used by immigration officials."
The Grammys were Monday night and, as promised, the cast of Hamilton performed their opening number. Didn't catch it live? No worries, we've got the clip.
Hamilton ended up taking home the Grammy for Best Musical Theater album. No surprise there.
Other highlights of the night included a solid performance by Canadian singer The Weekend, a technically-challenged performance by English singer Adele (a mic fell into the piano ruining the sound), and a cross-the-pond duet featuring Brit star Ellie Goulding and American Andra Day.
Let's give it up for the Os and Ps making it all happen.
Breaking news! And it must be true because it is on facebook. Immigration attorney and professor Margaret Stock has announced that she is running as an independent against Republican U.S. Senator Lisa Murkowski.
Margaret Stock focuses her practice on immigration and citizenship law. She is a nationally known expert on immigration and national security laws. As a retired Lieutenant Colonel in the Military Police, U.S. Army Reserve, Margaret has extensive experience with U.S. military issues. For her groundbreaking work developing programs to better the lives of immigrants and native-born military personnel, Margaret was awarded a MacArthur Fellowship in 2013.
Margaret has worked as a professor at the United States Military Academy at West Point, and served as an adjunct instructor at the University of Alaska. Margaret served as a member of the American Bar Association Commission on Immigration from 2008-2012. She regularly authors articles on military-related immigration issues. She authored the book Immigration Law & the Military.
Reason.com has an interesting interview of an immigration scholar. "It makes sense politically, rationally, electorally, to gain political power by saying all sorts of terrible things about immigrant groups, but at a certain point, the math doesn't work out," says Joel Fetzer, a professor of Political Science at Pepperdine University,* and author of the new book Open Borders and International Migration Policy: The Effects of Unrestricted Immigration in the United States, France, and Ireland.
The book examines three cases of mass immigration made famous in the movies: the influx of Central European immigrants to Ireland in the early 2000s as portrayed in the film Once, the flood of Algerians into Marseilles in the wake of the Algerian war as seen in the French film Samia, and the Cubans who ended up in South Florida after Castro’s purging of the so-called “scum” of Cuban society, some results of which are portrayed in the film Scarface.
Fetzer sat down with us to discuss what these three natural experiments in mass migration tell us about the arguments for, and against, opening our borders. These are some of his key findings:
- Unrestricted migration does not lead to job loss for natives, and in some cases even may lead to reduced unemployment.
- Mass immigration is not a net drain on public resources.
- Only in the Cuban case did violent crime spike, a phenomenon Fetzer attributes to the fact that Castro purposely sent criminals to America. Burglaries did increase slightly in all cases for a short time, but in at least one case it appeared that migrants may have more often been victims than perpetrators of the crimes.
Immigration Article of the Day: Domestic Violence Asylum and the Perpetuation of the Victimization Narrative by Natalie Nanasi
Abstract: Pitiful. Helpless. Powerless. The words often used to describe survivors of domestic violence conjure a vivid and specific image of a woman lacking both strength and agency. These (mis)conceptions stem from the theories of “Battered Woman Syndrome” and “learned helplessness,” developed in 1979 by psychologist Lenore Walker, who hypothesized that intimate partner abuse ultimately causes a woman to resign herself to her fate and cease efforts to free herself from violence or dangerous situations.
Although widely criticized, learned helplessness has permeated the legal establishment, for example, serving as the foundation for mandatory arrest and “no drop” policies in the criminal sphere of domestic violence law. Legal scholars have examined the problematic impacts of both the theory of learned helplessness itself and its effect on survivors in the criminal and civil justice systems. This article adds to that important conversation by exploring the previously unexamined area of learned helplessness’ impact on immigration, specifically asylum, law.
Through a series of cases from 1996 to 2014, it is now established that a woman may receive asylum protection if she can establish that she is “unable to leave” a violent domestic relationship. This formulation fits squarely within Walker’s framework, as it requires a victim to advance a narrative of helplessness if she is to obtain refuge in the United States. Furtherance of the notion of Battered Woman Syndrome in asylum law is troubling for a number of reasons, namely, as this piece details, in the harms that can result when survivors of domestic violence are required to conform to a specific “stock story” (including injury to both those who fit the stereotype and those who do not). Additionally, continued adherence to and reliance on learned helplessness poses challenges for client-centered lawyering, perpetuates the tendency of victim-blaming, ignores the realities of the dangers of separation violence, and furthers the damaging dichotomy of “worthy” and “unworthy” immigrants.
By identifying these concerns and proposing alternative bases for protection that would encompass not just pitiable and vulnerable victims of domestic violence, but strong, empowered and capable fighters against domestic abuse, this article seeks to critique, rebut and prevent the infiltration of static and stereotypical images of battered women in the realm of immigration law.
Jack Chin on PrawfsBlag offers another look at the controversy whether Senator Ted Cruz is eligible for the Presidency. Is Cruz a "natural born citizen"? He reviews much of the commentary on the controversy and concludes that many of the theories
"might prove sufficient to make Senator Cruz eligible. But they would also require invalidation of some of his beloved legal ideas. So I hope The Donald files a lawsuit, and Senator Cruz is found eligible, but based on genuinely neutral principles of law that will be equally available to others who do not happen to be in the Senate."
Tuesday, February 16, 2016
At Yale’s Notice-and-Comment blog, immprof David Rubenstein suggests that United States v. Texas provides an opportunity to rethink immigration exceptionalism -- or, as he and co-author Deep Gulasekaram explain in their forthcoming article -- “immigration exceptionalism(s).
When petitioning for certiorari, the United States’ reply brief framed Texas as a case “that implicates fundamental questions of standing, separation of powers, federal immigration authority, and administrative law . . . .” To pile on, however, we might also ask the following: Do all of these “fundamental questions” warrant exceptional treatment? None of them? Just some of them? And if so, which ones, and why not the others?
That is to say: "how should we split the exceptionalism atom?"
Their co-authored piece doesn't seek to answer this question. Rather, it "shine[s] a spotlight on that conceptual void, and explore what it may entail for the future of immigration theory and advocacy."
Marco Rubio's latest ad starts with the line "It's morning again in America." But, as Buzzfeed points out, dawn in the video appears to be breaking over Vancouver, not the United States.
Geography aside, I think Rubio's just pleased his ad doesn't feature an adult film actress, which is more than Ted Cruz can say.
Politics is fun.
Julianne Hing writes in The Nation:
Two years after tens of thousands of children and families began fleeing rampant violence in Central America for the United States, a year and a half after the ensuing media panic over their arrival triggered a militarized response from Texas, and a month after the Department of Homeland Security began raiding homes to deport those who’d supposedly lost their asylum cases, the ongoing crisis has laid bare the deepest weaknesses of the US asylum system. Chief among them is that migrants in immigration proceedings, including children, have no guarantee of legal counsel and are often forced to make their case in front of immigration judges alone.
On Thursday, Democratic senators led by minority leader Harry Reid introduced a bill to address this key gap. The “Fair Day in Court for Kids Act” would ensure that children and other “vulnerable” migrants like victims of torture or those with disabilities have access to a government attorney and legal orientation programs. Read more...
Julianne Hing in The Nation focuses attention on the dire need for legal representation of noncitizens seeking asylum in the United States. Last week, Democratic senators led by minority leader Harry Reid introduced the “Fair Day in Court for Kids Act," which would ensure that children and victims of torture or those with disabilities have access to legal representation and legal orientation programs.