Tuesday, April 26, 2016
Guest blogger: Alexina Del Vecchio, first-year law student, University of San Francisco
American policy makers on both sides of the aisle have long supported some form of a language requirement for naturalization, noting that English is an important symbol of integration into our society, and it is beneficial to both our nation and the immigrant to be able to communicate in the dominate language. While the purported intention of the requirement is inclusive and practical, the actual result of the requirement is not to facilitate the success of naturalized immigrants, but rather to create a political, expensive, and ineffective hurdle that discourages naturalization and creates an underclass of excluded legal permanent residents. The English language requirement, or at a minimum, the literacy requirement, ought to be removed from the naturalization exam, and replaced by a comprehensive program of classes and resources to assist new Americans in learning the language and integrating into American life – an affirmative inclusive solution rather than a negative exclusive approach.
Requiring literacy in English inherently favors immigrants of privileged socio-economic backgrounds. First, it is extraordinarily difficult to become literate in English as a second language if one is not literate or has a low reading level in his or her first language. Additionally, learning English is particularly difficult for immigrants whose first language is written in a different alphabet. Furthermore, it is well documented that an individual’s ability to learn a language decreases significantly with age. Of course, it is likely that immigrants of financial means or higher levels of education will know English, and if not, will easily have access to resources to help them learn English. Moreover, immigrants of greater financial stability will have more leisure time to attend English classes and learn the language, whereas poor immigrants oftentimes simply do not have the time and luxury to spend in the classroom. Free English classes are also horribly underfunded and scarce, and most are so overburdened they have waiting lists. All of these facts point to the undebatable reality that requiring literacy in English inherently favors Anglo-Saxon, upper class, educated immigrants and discriminates against older, poorer, undereducated, non-white and non-European immigrants.
The increase in Spanish speaking immigrants to the United State in the second half of the twentieth century saw an increase in bilingual education in the United States, but simultaneously brought attempts to use English as an instrument of exclusion. Legislators increasingly feel threatened by a growing population of Spanish speakers in the United States. In 2013, Senator Marco Rubio attempted to inject a requirement into the debated bi-partisan immigration reform legislation that would bolster the English language requirement such that even applicants for legal permanent residency would have been required to demonstrate proficiency in English. The amendment was largely viewed by both parties as political posturing, and overwhelmingly rejected by Rubio’s own constituents in Florida.
Many studies have shown that the English language requirement is a major deterrent to otherwise eligible legal permanent residents. About forty percent of the population of legal permanent residents in the United States who are currently eligible for naturalization self-report that they speak no or little English. In 2013, only 8.9 percent of the eligible 8.8 million legal permanent residents began the process of applying for naturalization. These figures reveal a significant portion of residents living in the United States who are disenfranchised by the education requirement. Although individuals may be content not to naturalize, it is surely problematic for our nation as a whole that in a democratic society there is such a large population without a vote.
Of course, it is troubling that so many people living in the United States are not proficient in English. This is not, however, because American culture is somehow eroded by people speaking other languages, or because speaking, reading, and writing English is somehow a key characteristic of American identity. Rather, it is concerning for those living within our borders, because to some degree, the ability to communicate and express oneself in English is necessary to facilitate full participation in American politics and economy. Not surprisingly, a 2014 study by the Brookings Institution found that English proficiency was correlated to higher wage earnings at all education levels.
The fact is, that while not all immigrants learn English, the data clearly show that their children overwhelmingly do. Linguistic studies have shown in the United States a “rapid process of intergenerational ‘Anglicanization’ that is effectively completed by the third generation.” (Skific) Attempts to make English the national language, or to mandate the language for applicants for citizenship, do not appear to have a substantial positive effect on older immigrants learning the language. The Brookings Institute study alternatively recommended increasing funding in adult education instruction which would “enhance the human capital of immigrants that could lead to more productive work and better outcomes for their children.” Encouraging and facilitating the education of new or soon-to-be Americans would more effectively bring them into our communities and help them participate in all aspects of American life, from economics to politics.
The way to go about increasing English language competency amongst new Americans is not a mandate that simply excludes and discriminates based on education, economics, and country of origin, but rather to provide greater access to resources for those in our communities seeking to improve their own lives and also to strengthen our country and our economy with their contributions. Increasing English proficiency of naturalization applicants is certainly important for both immigrants as well as for the unity of the United States. The truth is, however, that using the requirement as a litmus test for citizenship does not create an effective incentive or reasonably attainable goal for many legal permanent residents to learn the language. Instead, it results in growing numbers of disenfranchised residents living in our midst, unable to voice their opinions and exercise the rights of citizenship, waiting to qualify for a waiver, or simply leaving citizenship to their U.S.-born children. It does not make our country stronger to maintain an underclass of disenfranchised residents who are kept from participating in our democracy and other institutions. In fact, this further segregates our society and isolates non-English speaking residents to their own communities, where they will not, and need not, learn English.
Guest blogger: Celyn Coker, first-year law student, University of San Francisco:
I am sitting in a classroom full of youth. The students are predominantly mandated to be there by their P.O.’s. For those unaware, a P.O. is a probation officer. Many of the students in the classroom are Hispanic. Many of these students are not yet eighteen years old. Many of these students are the children of undocumented immigrants. My job is to assist teachers from the Unified School District in classroom settings. It is both sad and amazing how gifted these youngsters are. Many of them have street smarts I will probably never have. Many of them can speak more than one language. Many of them understand what it is they are being taught, but putting it down on paper for someone else to understand is a tough challenge. However, the biggest problem most of these children face is gang involvement.
“I don't really have a home. My foster mother sometimes swings by to like, make sure I got food and stuff. But for the most part, I’m with my boyfriend at his home. Sure his gang will chill wit’ us every now and again, but I ain’t a member. I just hold onto things every now and again. It was fine till I got pulled over.” – Yasmina, 16.
It took about six weeks for the children to warm up to me. Despite the fact that I am visibly a woman of color, I still was seen as an outsider. Part of it was the fact that I attended (and still attend) a “white rich people school.” Part of it was that I “talk good.” However, a strong part of it, was that I obviously looked lost when they would regale stories to each other about how “messed up” they had gotten the night before or how some “new cannons” came in that they could not wait to try out. These students were barely eighteen-years-old and despite the fact that they were trying to turn their lives around, many of them were (and probably still are) surrounded by violence and gang related activity.
“I told that ------ that if I ever see his punk ---- again, I’d call up the boys and mess him the ------ up.” – Murphy, 17.
It was a form of boasting. Every morning before classes would begin or during the lunch hour, various students would share their stories of what they had done the night before or what they had gotten into over the weekend. Every single one of those stories shared, with the exception of female students, typically ended in the same way; I won. Bruises and wounds were seen as badges of survival. I never thought someone would sound so pleased when talking about how despite the fact that they were stabbed with a knife, they had managed to take down their oppressor. When I felt brave, I would sometimes ask the students follow up questions such as, “do you live near a hostile area?” or “why would someone attack you?” The typical (male anyway) response was either that it was where their parents could afford to live or because it was a community where others “like them” also lived. They would tell me that someone attacked you because you “stepped on their toes” or because they did not wear the same colors.
The sad part about immigrant youths and gang involvement is that the media tends to blow up immigrant involvement in gangs. Media tends to portray that only immigrants/people of color are involved in gangs, and tends to emphasize that if we deport immigrants, then the streets will be safer. Media tends to ignore the fact that not every member of a gang actually commits a gang related crime. The stories I have to share are from the mouths of adolescents who have been taken into custody by officials and then mandated by other authority figures to attend the “school.” But these youths are not the only voices out there. A lot of times youths may be involved with a “gang” which is basically comprised of a group of friends who get together and do nothing criminal. They merely call themselves a gang. Other times, these youth join gangs, but have no intention of remaining long-term. They turn to gangs for a semblance of stability in an unstable portion of their lives. The motto may be “gang life” but the chance of their staying in the gang is very low unless they are not in a position to leave the gang. (Undocumented Immigrant Youth: Guide for Advocates and Service Providers 11-13).
“Like, I dunno. I want to be like… something, but I gotta clean this up. And my boyfriend’s almost out so I guess, we’ll do something together. I don’t wanna smuggle drugs for him anymore though. I don't like peeing in a cup. And the drinks I gotta drink to make sure I’m clean, they taste like… nasty” – Akaara, 17.
At the end of the day, almost every single student I encountered in my time as a volunteer in that classroom had goals to become something not over the top, but rather shockingly normal. Many students wanted to become lawyers, dentists, and even veterinarians. But a sad theme I encountered was that as soon as a child would tell me what they wanted to do, they would then express such pessimistic viewpoints about what they would become in the future. One student in particular, Murphy, told me that he was probably going to end up in prison full time. When I asked him why he thought that, he responded: “I had a tough time growing up, you know? My dad was deported, my mom don’t speak no English. The boys I roll with like the hard ----. One day, Imma get caught and they gonna attach so much ---- to my record that I’mma go away for good. So why try?” Racial discrimination is a big factor in communities that are predominantly persons of color.
When a person lives in a community of fear and hostility, then it is likely that person will utilize aggressive techniques to survive. When media continuously portrays you and people like you as aggressors and or the problem, then it becomes even tougher to escape the labels forced upon you. When people in your life are always on the wrong end of the law, just for trying to live, then a negative attitude is developed amongst yourself, your community, and those you see at the oppressor. You turn to the only people you believe you can trust. You turn to your gang. The dialogue needs to change. The hostility needs to dissipate. It is very important to have open discussions about sensitive topics and work on prevention methods such as the Undocumented Immigrant Youth: Guide for Advocates and Service Providers suggests.
This most definitely is not the typical undocumented immigrant story. Cindy Carcamo of the Los Angeles Times reports that, six years ago Bernardino Hernandez boarded a plane to Mexico City. He had recently graduated from UC Davis, but he was undocumented and felt limited by his lack of legal immigration status in the United States. Hernandez was unsure whether he'd ever reach his potential in a country that he'd called home since he was a toddler but that wouldn't allow him to work legally.
Hernandez gave up on his American dream in the United States and is now living it in Mexico. Hernandez is at the helm of a translation company he launched last fall, leading a team of 15 linguists who offer services in nearly two dozen languages to multiple businesses, including eight transnational companies. He regularly travels to the U.S. on business. Until recently, he had been a high-level manager for a Fortune 100 company. His career in Mexico allowed him to save enough money to attend university in Canada, where he earned his master's degree. "I've traveled to more places in the U.S. while living in Mexico than while I was living in the U.S. I'm glad I did leave," he said. "I wanted to find my own way."
Hernandez is one of more than 500,000 people ages 18 to 35 who have returned to Mexico since 2005 after spending significant time in the U.S.
On SCOTUSBlog, Evan Lee previews a case that will be argued before the Supreme Court today that could have immigration consequences. The Court will hear oral argument in Mathis v. United States, which Lee says is "likely to be the Term’s most important federal sentencing case, and its second-most important immigration case after United States v. Texas."
The case involves the surprisingly complicated question of how to determine which state convictions qualify for federal mandatory minimum sentences and for removal under immigration law. Read Lee's preview for the details.
UPDATE (APRIL 27): Here is Evan Lee's recap of the argument.
A bipartisan group of candidates for the U.S. Senate seat in California debated last night. Attorney General Kamala Harris, Orange County congresswoman Loretta Sanchez, former California Republican Party chairs Duf Sundheim and Tom Del Beccaro and political activist and high-tech entrepreneur Ron Unz squared off in Stockton at a debate sponsored by the San Francisco Chronicle, KCRA-TV (Sacramento) and University of the Pacific.
Harris and Sanchez, whose parents emigrated from Mexico, support a pathway to citizenship for undocumented immigrants. Sundheim outlined a middle course, calling for a pathway to legal status but not citizenship. And instead of only building a wall at the U.S./Mexico border, he suggested tapping into Silicon Valley for more tech solutions, like drones, to curb undocumented immigration. He then criticized Sanchez for missing most of the meetings of a House Committee on Homeland Security she serves on. Sundheim said. Unz connected immigration to raising the minimum wage. He would discourage illegal immigration, as “the vast majority of illegal immigrants come here for jobs,” he said. If the wage floor is lifted, “the magnetic pull of those jobs will disappear” because citizens will compete for those positions.
Immigration Articles of the Day: Giving Credit Where Credit Is Due: What We Can Learn from the Banking and Credit Habits of Undocumented Immigrants and Survival in the Face of Scarcity: The Undocumented Immigrant Experience by Natalie Martin
Giving Credit Where Credit Is Due: What We Can Learn from the Banking and Credit Habits of Undocumented Immigrants by Nathalie Martin, University of New Mexico - School of Law, 2015 Michigan Law Review 989 UNM School of Law Research Paper 2015-08
Abstract: Undocumented immigrants currently make up more than 5% of the U.S. labor force and 7% of school-age children. Numbering over eleven million, undocumented immigrants unquestionably comprise a significant segment of the population, yet most lack financial security and stability on multiple fronts. In addition to the everyday risk of deportation, many risk being taken advantage of on the basis of their immigration status, in both employment and debtor-creditor relationships. While some of these financial conditions are well-chronicled, this Article describes the first empirical study of the debtor-credit relationships of undocumented immigrants. Through live interviews, this Article recounts the general financial impediments undocumented immigrants face in trying to work, pay taxes, raise children, participate in the U.S. economy, and simply survive.
Among other topics, this Article explores whether undocumented immigrants use traditional financial institutions or more informal ones, and whether predatory lenders such as payday and title lenders have made inroads into immigrant communities. It further explores our study participants’ perception of and attitudes toward various forms of credit, with the hope of using this sample to gain more generalized insights into the credit uses and attitudes of undocumented Americans as a whole in today’s consumer credit economy.
Through our study, we were able to uncover a few of the grim realities of living in the financial shadows, with only precarious means of financial support, distanced from social safety networks at home, at legal disadvantage, and without a place at any policy-related table. Indeed, we conclude that the financial condition of many undocumented immigrants is far more precarious than one might imagine, as shown through our data that 74% of the persons interviewed would not be able to cover a $100 emergency if it came up. We also discovered fear of and disdain for credit among many undocumented persons, demonstrating sensible ideas about credit, which many of us in the mainstream population could learn from.
Survival in the Face of Scarcity: The Undocumented Immigrant Experience by Natalie Martin, Arizona Law Review, Download 58arizlrev103
In this article, Professor Martin attempts to build an empathy bridge between readers and a group of undocumented immigrants living in the American southwest, applying original qualitative research to scarcity theory. The article describes scarcity theory and then describes the laws and policies that affect scarcity for undocumented immigrants. In some cases, as with both immigration and weak consumer protection laws, these policies exacerbate scarcity. In others, such as employment laws, these protections should keep financial scarcity at bay by preventing an employer from taking advantage of a worker’s undocumented status.
The article describes the laws in these contexts, noting how immigration laws preclude the undocumented from becoming employed in the United States, while federal and state employment laws allow the undocumented to get paid, like anyone else who works. These laws send mixed messages to the undocumented, many of whom do not seem to know that they have any rights at all.
The article then applies these laws to the comments of participants relating to workplace protections. Overall, the data show that, despite protective laws, people still feel taken advantage of due to their undocumented status, both in the context of employment and consumer credit use. The article then describes a rather obvious, but often-overlooked reason why remedies among the poor can be hollow: Undocumented people are usually unwilling to use the courts to right these wrongs, even when there are laws available to protect them.
Monday, April 25, 2016
Guest blogger: Jeanette M. Acosta, third-year law student, UC Hastings
Two voices were heard loud and clear during Monday’s United States v. Texas oral argument, and these voices spoke for and defended millions of potential DAPA beneficiaries. The two inspiring voices were those of Justice Sonia Sotomayor and Thomas Saenz. While what is asked and argued during a Supreme Court oral argument is only so indicative of how a particular Justice might come down on an issue, it is important to highlight the involvement of Justice Sotomayor and Thomas Saenz in Monday’s oral argument.
First, Justice Sotomayor commanded the hour and a half oral argument, speaking a total of 50 times and eclipsing the engagement level of her colleagues, such as Justice Kennedy who only spoke 9 times and remained silent during the argument of his former clerk, Texas Solicitor General Scott Keller. Interestingly, Justice Sotomayor, the first and only Latina (and Newyorkican) to serve on the U.S. Supreme Court,[i] previously shared with Linda Greenhouse that “[t here is a great deal of my jurisprudence that talks about or is involved in how to engage people fairly in being part of the community . . . It’s a message about inclusion rather than exclusion.”[ii] This message of “inclusion” was clear in many of her questions on Monday, particularly toward Texas’ Solicitor General. Justice Sotomayor was the first Justice to swiftly interrupt and question the Texas Solicitor General and remind him that there are nearly 11 million undocumented immigrants living in the shadows whether we like it or not and previously in 1990 deferred action and work authorization was granted to 40% of the immigrant population at the time – signaling her disagreement with Texas’ bold claim that DAPA “would be one of the largest changes in immigration policy in our nation’s history.”[iii]
Second, Thomas Saenz, president and general counsel of MALDEF, added “the perspective of the only non-institutional, human participants in the case as parties.” In this case, MALDEF represented three “Jane Doe” mothers who reside in south Texas and who plan to apply for DAPA. On November 9, 2015, the U.S. Court of Appeals for the Fifth Circuit granted these three MALDEF clients the right to intervene in Texas v. United States after an initial denial in District Court. In answering whether the interveners possess a sufficient personal stake in their own right to have standing, the Fifth Circuit determined that the mothers’ “interest in avoiding deportation is a concrete, personalized interest that is legally protected [by the Constitution].” In the case before the Supreme Court, with ten minutes of the Obama Administration’s time, Saenz emphasized that Texas’ only articulated injury is providing driver’s licenses to DAPA beneficiaries is a costly endeavor, and Saenz clarified to the Court that work authorization “has absolutely no relationship to the alleged injury of driver’s licenses” and is a “separate determination from deferred action itself.” Saenz further clarified to Chief Justice Roberts that losing money is the classic case for standing for a private individual, but not for a State. While it is unclear whether the Court will end up being split 4-4, it is clear that Justice Sotomayor and Saenz played meaningful roles during Monday’s oral argument that might lead to a tip in the scales toward providing relief to the three Jane Does and millions of others seeking to remain in the United States and continue making a contribution to our nation.
[i] Sonia Sotomayor, My Beloved World, 255 (2013); see also María Pabón López, Self Portrait of the Puerto Rican Jurist: A Life of Hard Work / Autorretrato de la Jurista Puertoriqueña: Una Vida de Trabajo Arduo, 47 Rev. Juridica U. Inter. P.R. 5 (2012); see also Kevin R. Johnson, An Essay on the Nomination and Confirmation of the First Latina Justice on the U.S. Supreme Court: The Assimilation Demand At Work, 30 Chicana/o-Latina/o L. Rev. 97, 135 (2011).
[ii] Linda Greenhouse, A Conversation with Justice Sotomayor, The Early Jurisprudence of Justice Sotomayor, 123 Yale L.J. Forum 375, 384, 390 (March 24, 2014).
[iii] Oral Argument Transcript, United States v. Texas (15-674), April 18, 2016, http://www.supremecourt.gov/oral_arguments/argument_transcripts/15-674_b97d.pdf; see also Reagan-Bush Family Fairness: A Chronological History, American Immigration Council, December 9, 2014, http://www.immigrationpolicy.org/just-facts/reagan-bush-family-fairness-chronological-history (“Publicly available estimates at the time were that “Family Fairness” could cover as many as 1.5 million family members, which was approximately 40 percent of the then-unauthorized population.”).
Guest blogger: Frank Gould, first-year law student, University of San Francisco
From the Clinton administration forward, there has been a militarization of the United States/Mexico border. This was exacerbated after 9/11, after which cries for securing the border are an easy way to pander to one’s constituency or are seen as desirable policies, or an easy way to scare voters. From 1993 to 1997 the INS budget for enforcement along the southwest border increase from $400 million to $800 million. The total increase from 1990 to 2011 is staggering-- INS enforcement was increased from $262 million to $3.5 billion. As a result, more immigrants were detained and the human cost has been steep. A large part of the militarization was due to Operation Gatekeeper, which cut off the easier routes to the United States, forcing non-citizens to cross rugged and dangerous terrain.
The logic of Operation Gatekeeper was that if the path into the United States was dangerous enough those seeking entry illegally would not want to take the risk of passing. This logic was shown to be flawed as migrants still tried to cross; the only thing that changed was the number of deaths. In 1994, 23 migrants died due to hypothermia, heatstroke and drowning, this number increased to 499 by 2000, with more than 10,000 dead between 1998 and today. However, despite the fact that the path is dangerous and that many are caught and deported, migrants are not deterred. Much of this is because the reasons for fleeing their home country is worse than the risk of what is faced upon crossing. One way to alleviate the number of crossings is to address the issues in the country being fled. This is an important factor and will take a long time.
Another way to alleviate this problem is to address the bottleneck between enforcement at the border and the immigration courts. Billions of dollars are being spent on the enforcement and detainment side of immigration, which leads to a large number of apprehensions and detentions. As a result, the dockets of immigration courts are flooded. There are roughly 215 immigration judges in the country, each having an average of 1,600 cases per year; contrast that with 350 cases for a full-time federal judge. The current backlog is over 450,000 cases, and the focus of the courts is to clear the backlog. An immigration judge can hear dozens upon dozens of cases in a single day. In many cases, the consequences are severe for the applicant if they are deported. The immigration judges are aware of the stakes, however, they also are pressured to clear the docket; while a case may require more attention, there simply isn’t enough time. The stress of being forced to make harsh rulings with short time and being handcuffed administratively takes a toll on an immigration judge. This may be a reason for some of the harsher or ostensibly unexplainable decisions.
The questionable decisions that are generated from this environment do not engender confidence in the immigration system for those seeking to enter the country. If a potential applicant sees that they will not get a fair hearing and that their case will not be resolved for a long time, then the potential applicant may opt to enter without inspection. Because of the bottleneck caused by our zeal for performance, we have rendered the judicial arm ineffective and untrustworthy. If we cannot fairly deal with those who we detain, then we cannot say that there is a viable legal path to citizenship. By transferring some funding from enforcement to the immigration courts there will be less of a backlog; better decisions would engender more confidence in the system. If there is more confidence in the system, then some will be less compelled to risk the dangerous journey to the United States, because they will get a fair shot upon inspection. It isn’t a silver bullet to the problem, but what is?
US: 20 Years of Immigrant Abuses Under 1996 Laws, Arbitrary Detention, Fast-Track Deportation, Family Separation
Human Rights Watch issued this press release today on immigrant detention.
The United States Congress should repeal provisions in two 1996 immigration laws that have subjected hundreds of thousands of people to arbitrary detention, fast-track deportations, and family separation, Human Rights Watch said today.
A proposed resolution to be introduced on April 26, 2016, by the Congressional Progressive Caucus, symbolically recognizes some of the harm caused by these laws and proposes limited reform.
“The US appears to be coming to grips with the harm caused by its 90s-era crime laws,” said Alison Parker, co-director of the US program at Human Rights Watch. “These 90s-era immigration laws also deserve serious scrutiny and reconsideration.”
President Bill Clinton signed the Antiterrorism and Effective Death Penalty Act of 1996, known as AEDPA, on April 24, 1996. The legislation, passed in the aftermath of the 1995 Oklahoma City bombing, greatly expanded the grounds for detaining and deporting immigrants, including long-term legal residents. It was the first US law to authorize certain now-widely-used fast-track deportation procedures.
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), signed in September 1996, made further sweeping changes to immigration laws. It eliminated key defenses against deportation and subjected many more immigrants, including legal permanent residents, to detention and deportation. IIRIRA defined a greatly expanded range of criminal convictions – including relatively minor, nonviolent ones – for which legal permanent residents could be automatically deported. IIRIRA also made it much more difficult for people fleeing persecution to apply for asylum.
Over the last two decades, Human Rights Watch has documented how these laws rip apart the families of even long-term legal residents via the broad swath of criminal convictions considered triggers for automatic deportation or detention.
Antonio C. (pseudonym), a legal permanent resident from Ecuador, is just one current example. US authorities are detaining him for deportation on the basis of a 2005 drug conviction. He was brought to the US when he was a year old and has seven US citizen children, including a 3-year-old son with autism.
“I grew up in a neighborhood in Queens that was basically drugs and fighting,” he told Human Rights Watch. “And I messed up. But I paid for what I did and I learned my lesson. Now they are trying to take me away from my kids.”
The laws have also helped perpetuate a system of unnecessarily widespread immigration detention. They include provisions authorizing mandatory, sometimes prolonged detention during deportation proceedings for thousands of immigrants who have already served their criminal sentences for drugs or other crimes. The mandatory detention provisions also require detention of non-citizens in expedited deportation procedures while they apply for asylum or humanitarian protection.
Oscar M. (pseudonym) was “mandatorily” detained for 11 months in 2014, after entering the US to seek protection from his family and the Honduran police, who had threatened his life because he is gay.
“Being detained was unbearable for me,” he said. “I didn’t feel safe. I felt harassed and I wanted to give up, which would have been suicide.” In December 2014, he was granted the right to remain in the US and protection from deportation certifying that he met and exceeded the standards for refugee protection under US law.
Human Rights Watch has also found that the fast-track border deportations authorized by these laws deny many asylum seekers a meaningful opportunity to make their claims, as required by US and international law. There are also persistent allegations that US Border Patrol agents administering these fast-track deportations sometimes ignore the attempts of asylum seekers to secure protection.
Kelin R. (pseudonym) fled El Salvador in September 2015, with her 3-year-old daughter. At the US border, both were placed in expedited removal, a fast-track deportation procedure authorized by the 1996 laws. Like dozens of other people in fast-track procedures Human Rights Watch has interviewed, she disputes the contents of a statement produced by a US Border Patrol agent which says she came to the US to work and had no fear of returning to El Salvador.
“They were going to kill me and my family,” she said, referring to local police she said were in league with a street gang. “I didn’t [tell the Border Patrol] I came to work. I said I fled for my life.”
A full list of Human Rights Watch reports documenting the harm to immigrants and their families caused by the 1996 laws appears below.
The harm of AEDPA also goes beyond immigration policy, Human Rights Watch said. Notably, the law substantially limited the power of federal courts to consider petitions filed by prisoners alleging that they were wrongly convicted – including people on death row.
“Twenty years of unjust detention, deportation, and family separation is 20 years too much,” Parker said. “Let this be the last anniversary for these terrible laws.”
For more Human Rights Watch reporting on United States immigration issues, please visit here.
For more Human Rights Watch reporting on the United States, please visit here.
The following Human Rights Watch reports document harm caused by the Antiterrorism and Effective Death Penalty Act of 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act.
Locked Away: Immigration Detainees in Jails in the United States, September 1, 1998. Found that the then-new mandatory detention obligations of the 1996 laws drastically increased the use of immigration detention and that the US Immigration and Naturalization Service (INS) was holding more than half of its detainees in jails, where they are subjected to punitive treatment.
Family, Unvalued: Discrimination, Denial, and the Fate of Binational Same-Sex Couples under U.S. Law, May 1, 2006. Documented how AEDPA’s bar on asylum applications filed more than one year after an asylum seeker’s arrival harms people making claims based on their sexual orientation or gender identity.
Forced Apart: Families Separated and Immigrants Harmed by United States Deportation Policy, July 16, 2007. Documented how the substantial expansion of the criminal grounds for deportation in 1996 devastates communities across the nation, targeting not only undocumented immigrants but also long-term lawful permanent residents – green card holders – as well.
Forced Apart (By the Numbers): Non-Citizens Deported Mostly for Nonviolent Offenses, April 15, 2009. Found that three quarters of non-citizens deported, mostly due to the 1996 laws, after serving criminal sentences were convicted of nonviolent offenses, and that one in five had been in the country legally, some for decades.
Locked Up Far Away: The Transfer of Immigrants to Remote Detention Centers in the United States, December 2, 2009. Found that the 1996 laws made many more non-citizens subject to deportation and made it much more difficult for them to defend themselves.
Deportation by Default: Mental Disability, Unfair Hearings, and Indefinite Detention in the US Immigration System, July 25, 2010. Documented how the mandatory detention provisions of the 1996 laws cause unnecessary detention of people with mental disabilities, leading to abuses.
Tough, Fair, and Practical: A Human Rights Framework for Immigration Reform in the United States, July 8, 2010. Called for immigration reform that repeals the 1996 provisions authorizing fast-track deportations, limitations on the use of reasonable discretion for immigration judges, and arbitrary detention.
Costly and Unfair: Flaws in US Immigration Detention Policy, May 6, 2010. Described the “relatively unchecked” powers given to immigration enforcement authorities under the 1996 laws to detain many immigrants for prolonged periods.
Within Reach: A Roadmap for US Immigration Reform, May 1, 2013. Called for a US immigration system that respects and protects families and ensures due process.
At Least Let Them Work: The Denial of Work Authorization and Assistance for Asylum Seekers in the United States, November 12, 2013. Showed how IIRIRA prevents asylum seekers from working for at least six months, and often for years, while their claims are pending.
Torn Apart: Families and US Immigration Reform, July 24, 2014. Highlighted dramatic photographs of some of the millions of families affected by the 1996 laws.
You Don’t Have Rights Here: US Border Screenings and Returns of Central Americans to Risk of Serious Harm, October 16, 2014. Documented how fast-track border deportation procedures authorized by the 1996 laws deny migrants a genuine opportunity to claim asylum and place them at serious risk of harm.
A Price Too High: US Families Torn Apart by Deportations for Drug Offense, June 16, 2015. Documented how the 1996 laws prompt the US to routinely open deportation proceedings against legal residents and other immigrants with strong ties to US families.
Do You See How Much I’m Suffering Here?: Abuse against Transgender Women in US Immigration Detention, March 23, 2016. Documented how the 1996 provisions on mandatory detention and fast-track deportations contribute to unnecessary detention and harm to transgender women.
Former U.S. Marine Daniel Torres leaves a naturalization ceremony in downtown San Diego on Thursday. The Mexican-born veteran was sworn in as a U.S. resident. (Eduardo Contreras / San Diego Union-Tribune)
Tatiana Sanchez of the Los Angeles Times reports on an immigrant "Feel good" story. Daniel Torres, who was undocumented when he enlisted in the Marine Corps by using a false birth certificate, became a U.S. citizen this week. Torres, who joined the Marines in 2007 and served in the Iraq War, was eligible for citizenship under special provisions of the Immigration and Nationality Act that allow for people who serve in the military during a period of hostility. It waives other usual requirements for citizenship, such as lawful permanent residence and physical presence in the United States. Torres has been living in Tijuana for the past five years. He was sworn in as a citizen during a 10-minute ceremony in downtown San Diego on Thursday.
SCOTUSBlog's Petition of the Day was filed in the case of Estrada-Martinez v. Lynch, a Seventh Circuit case raising the issue whether the Attorney General’s decision that an alien’s crime is “particularly serious,” thus barring the alien from receiving withholding of removal, is a decision “specified” by Congress “to be in the discretion of the Attorney General,” and therefore not reviewable by federal courts. Anne LoFaso and the West Virginia Immigration Law Clinic, along with Jones Day, are on the Petition.
Get your questions about immigration and citizenship ready! Phone lines will be open Monday morning starting at 10 a.m. for the 14th CUNY/Daily News Citizenship NOW! immigration hotline. A long list of local and national dignitaries — including Sens. Kirsten Gillibrand and Chuck Schumer, New York Gov. Andrew Cuomo, NYC Mayor Bill de Blasio and Timothy Cardinal Dolan — are set to visit the hotline headquarters at Guttman Community College in Manhattan this week. Organizers of the yearly call-in are preparing to help thousands during the campaign, which runs from Monday through Friday.More than 400 volunteers — supervised by experienced attorneys — will be answering calls and giving free and confidential citizenship and immigration information between 10 a.m. and 8 p.m. They will refer callers to organizations in their area that can help them in person with their applications for free or at a low cost.
The hotline — which fields calls in scores of languages, from English and Spanish to Mandarin, Bengali and Arabic — has helped more than 143,000 callers since it was launched in 2004.
Call the immigration hotline now:
English: (212) 278-2390
Spanish: (212) 278-2380
Deaf/Hard of hearing: 711
Abstract: This essay reviews two books, Robert Wald Sussman, The Myth of Race: The Troubling Persistence of an Unscientific Idea (Harvard University Press 2014) and Osagie K. Obasogie, Blinded by Sight: Seeing Race Through the Eyes of the Blind (Stanford University Press 2014). Sussman is an anthropologist who brings his expertise to bear in tracing scientific racism through history. Obasogie is a legal scholar and sociologist who uses both qualitative data gathered through interviews with blind and sighted people and Critical Race Theory to explore racialization’s dependence on the idea that race is visually obvious. Each book examines an idea that has sustained racism despite social, political and geographic change. The essay assesses each account and links the authors’ analyses to judicial and legislative framings of reproductive rights and to postmodernist scholarship on race, gender and the human body.
Sunday, April 24, 2016
The immigration law concept of unlawful presence has played a prominent role in the Supreme Court’s evaluation of Deferred Action for Parental Accountability (DAPA) in United States v. Texas. During Solicitor General Donald Verrilli’s oral argument, Chief Justice Roberts asked for confirmation – twice – that “lawfully present does not mean you're legally present.” Justice Alito followed soon after, with his own comment that, in reference to the ability to lawfully work without lawfully being in the US: “I’m just talking about the English language. I just don’t understand it.”
Others such as Anil Kalhan have already provided excellent analyses of how the lawful presence issue figures in the DAPA litigation, and why the State of Texas has misconstrued the nature of lawful presence.
Reflecting on the role of lawful presence in United States v. Texas has prompted me to share how I teach unlawful presence, from a practical perspective, in my survey Immigration Law course at Western State College of Law. I offer it as a teaching tool, a subject of discussion (on which feedback is most welcome!), and also as a point of relevance to the Court’s forthcoming analysis.
The Cup of Unlawful Presence. To teach unlawful presence, I refer to The Cup of Unlawful Presence. My lessons on unlawful presence arise when we cover the grounds of inadmissibility at 8 U.S.C. § 1182, and assume that students have become sufficiently comfortable with the concepts of admission (as distinct from physical entry) and inadmissibility. They can see from the statute that the concept of unlawful presence and related bars to re-entry appear in their own section of the statute setting forth the grounds of inadmissibility (at 8 U.S.C. §1182(a)(9)(B)), and thus operate separate and apart from the inadmissibility ground of being present without having been previously admitted or paroled into the U.S. (at 8 U.S.C. § 1182(a)(6)(A)(i)).
Filling the Cup of Unlawful Presence. I ask students to imagine (and I draw on the board) a cup, also known as The Cup of Unlawful Presence. I first have the students focusing on what kinds of action can and cannot lead the Cup of Unlawful Presence to be filled, and I tell them to envision that one day of unlawful presence equals one unit of measurement (e.g., a marble, bean, grain of rice, etc.) filling the Cup. Days spent in the US without status as a minor? The Cup is not filled. Days spent after the minor turns 18, assuming no change in status? The Cup gets filled, one marble for each day. Time spent in the US after filing a bona fide asylum application? The Cup is not filled. And so on. The point is that being present in the U.S. without federal authorization is not necessarily the same thing as acquiring unlawful presence. If they want more guidance beyond the statutory exceptions to unlawful presence described at 8 U.S.C. § 1182(a)(9)(B)(iii), I mention the 51-page unlawful presence memo issued in May 2009.
Measuring the Cup of Unlawful Presence. Why does it matter how many marbles/beans/rice grains of unlawful presence are in the Cup? Like a Pyrex cup, the Cup of Unlawful Presence is marked with lines that say “180,” and “365.” This leads to our review of the 3- and 10-year bars. Acquiring less than 180 units in the Cup does not trigger either bar. But once the Cup measures between 180 and 364 units, the individual might (emphasis on the word “might”) have an unlawful presence problem. And after reaching over 365 units of unlawful presence, the 10-year bar might come into play. But, to what extent does the fullness of the Cup matter?
Spilling the Cup of Unlawful Presence. Here’s the next point: the Cup of Unlawful Presence really becomes a problem only when spilled. How does one spill their Cup of Unlawful Presence? By departing from the US. (Or more specifically in the case of the 3-year bar, by “voluntarily departing the [US]…prior to commencement of proceedings”). If a noncitizen remains in the US, and never departs, then they won’t actually spill the Cup of Unlawful Presence. If spilled, it is a bitter Cup, as the 3- or 10-year bars to re-entry take full effect.
Moving on from the Cup of Unlawful Presence. We do eventually move on from the Cup of Unlawful Presence (after all, one can only squeeze so much from the analogy). We then discuss the inevitable triggering of the bars to re-entry when individuals are eligible to seek lawful residence but must depart the US in order to consular process, and the role of stateside provisional waivers created by the Obama Administration.
It’s a little cheesy, but seems to be pretty memorable for students otherwise confused by the Immigration and Nationality Act provisions. It can also give one an excuse to engage in melodramatic, Socrates-inspired gestures in class. (On a related note, a longer piece on how I’ve taught Immigration law is available here).
The bottom line, for students? The penalties associated with “unlawful presence,” and the operation and acquisition of unlawful presence, are entirely different from the comparatively straightforward problem of being present in the US without having previously being admitted (or of overstaying one’s visa). The bottom line, for the Supreme Court? Possibly something similar.
"Although some have called United States v. Texas the immigration case of the century, the case heard last week by the U.S. Supreme Court is simply the latest skirmish in the long debate over immigration reform."
Saturday, April 23, 2016
Guest blogger: Katie Hall, second-year law student, University of San Francisco
In the tech bubble of Silicon Valley, there is a presumption by many outside of the industry that tech giants are relying too heavily on foreign employees and not hiring enough U.S. labor. Stemmed from concerns over the lack of U.S. wage growth over the past several years, there is a fear that the tech giants are firing U.S. employees, and replacing them with lower paid foreign labor. While there are some situations where that most definitely is true, on the whole tech companies are using temporary foreign labor as our visa system intends, to cover gaps while looking for U.S. employees. There are two main companies, however, that are abusing the temporary foreign labor visa system, and amendments to the H-1B visa system are imperative to stem further manipulation by future companies.
The definition of an H-1B qualified worker is an alien having “residence in a foreign country … who is coming temporarily to the United States to perform other temporary service or labor if unemployed persons capable of performing such service or labor cannot be found in this country.” Introduced in 1990, H-1B visas are currently capped at 65,000 per fiscal year, plus an additional 20,000 for people with master’s degrees. The cap has ranged to as high as 195,000 in the past, and there is a concerted push today to increase the current allotment back to that 195,000 cap. Various tech industries, President Obama, and even some members of Congress support an increase, mainly Senator Orrin Hatch (R-Utah) who proposed a bill that would overhaul the system. In 2015, U.S. Citizenship and Immigration Services received 233,000 petitions during the filing period, demonstrating a much higher demand from employers than the current government cap of 85,000 total H-1B allows.
As the vast number of visa requests demonstrates, there is a legitimate need for specialized labor in some fields that cannot be found in the U.S. labor market. While many companies use these visas to augment their domestic work force for legitimate reasons, there are grave abusers. For 2013, when information has been made available under a Freedom of Information Act request by the Economic Policy Institute, two companies received far more visas than any other. Both India-based IT firms specializing in outsourcing and offshoring, Infosys received 6,269 H-1B petitions and Tata Consultancy Services received 6,193, totaling 12,462 H-1B visas.
Both companies pay workers much cheaper wages than locally recruited U.S. workers. Infosys averages $70,882 and Tata $65,565, while the U.S. Department of Labor statistics for a Computer Systems Analyst in Rosemead, CA average $91,990 (the location of SCE detailed below). This means that by using these companies to augment staff, they not only get trained employees, but the workers are $20,000 a year cheaper.
A very well publicized example of this happened at Southern California Edison (SCE) in early 2015. SCE laid off 400 IT employees, and another 100 left voluntarily. To replace these positions, SCE used Infosys and Tata to bring in H-1B visa employees to be trained temporarily in the U.S., and then they returned to India to run their IT department oversees. While technically a legal use of the visa program, this greatly goes against the spirit of the program. There are numerous other examples peppered through out the last few years demonstrating U.S. employees being replaced by lower paid H-1B visas recipients, including layoffs at Disney, Molina Healthcare (who’s ex-employees even filed a SLAPP action), and Pfizer Connecticut R&D.
Proponents of the current H-1B system say that it is a great stepping-stone for permanent immigration to the U.S. However, this is based on information from Infosys and Tata that is not true. In 2013, Infosys sponsored seven H-1B workers for permanent residence, and Tata sponsored none. Considering they petition for tens of thousands of visa each year, and only sponsored seven for permanent residence, these companies are only bringing in temporary, cheaper, disposable labor, and are not permanently introducing talent and innovation to the American labor market as many assume.
In spite of these abuses, many argue the system is overall still benefiting U.S. corporations. With a stagnation in U.S. wages, a top concern for the American populace and our perceived slowing economic growth, issues like outsourcing of our labor are coming under closer and closer scrutiny. To try and stem the abuse of the system, there have been proposals to cap the total number of visas that any one company could request, but due to gridlock in Washington no reforms have been passed. While a system capping the number of H-1Bs any one company can hold is still subject to abuse, it is perhaps a step in at least breaking up the companies that seem to hold a large monopoly on the market.
There are also calls for USCIS to more closely review each petition to ensure that the wage requirement is more comparable to the Department of Labor average, proving that companies are not simply hiring cheaper labor. However, this suggestion receives push back from those in the industry claiming that the costs in longer processing time for the hundreds of thousands of requests would not be worth the benefit.
Another proposed way to sidestep the H-1B visa process all together is to amend our student visa system. This would allow immigrants who graduate from U.S. universities to stay and work for a number of years on student visas after gradating from U.S. universities so that they have a longer opportunity to find employment, retaining their talent in the country. This way we keep resources in the U.S. that can benefit our labor market. This would provide another avenue for employers to find qualified workers, namely, U.S. trained students that otherwise would have to return to their home countries.
The H-1B system could benefit from an overhaul to make sure that immigrants are given an opportunity to work temporarily in the U.S. The overhaul should provide a way of becoming lawful permanent residents, instead of being exploited as cheap, temporary, labor designed to displace a U.S. citizen worker and save the company a few thousand dollars a year.
 8. U.S.C.A §1101(H)(i)(b)
David Lozano and Lee Trull are co-authors of the new play Deferred Action. Their play follows the story of "fictional Dallas Dreamer Javier Mejía, who must decide whether to take risky action or wait for the system to help him."
When they wrote the play, Lozano and Trull thought it would be a historical piece. As the Dallas News reports:
We assumed that immigration reform would be passed... This was supposed to be a past-tense play, and yet here we are with politicians saying terrible things about immigrants and surging in popularity....
You can see Deferred Action live at the Wyly Theater April 20-May 14. It is the second play in a planned trilogy by the Cara Mía Theatre Company about the Latino immigrant experience.
Immigrant House, now known as the Baltimore Immigration Museum, located in Locust Point. (Barbara Haddock Taylor / Baltimore Sun)
The Baltimore Sun reports on a new museum that celebrates the city of Baltimore's immigrant history. "Baltimore's newest museum, poised to open to the public next month, honors the 1.2 million European immigrants who crossed the Atlantic and disembarked at a pier near Fort McHenry. More precisely, the new arrivals landed at a Baltimore and Ohio Railroad terminal near today's Silo Point, the glassy apartment building at 1200 Steuart Street in Locust Point."
The Baltimore Immigration Museum, 1308 Beason Street, opens to the public beginning Sunday, May 8, from 1 p.m. to 4 p.m. It will remain open on Saturday and Sundays.