Wednesday, November 30, 2016
This CityLab article describes the efforts of universities and law schools in educating and preparing immigrant communities for the immigration enforcement changes promised by the incoming Presidential Administration. It highlights recent teach-ins organized by Immprofers Alina Das and NYU and Sarah Sherman-Stokes at Boston University, and contains helpful links to materials prepared in connection with events held at both law schools.
In this thoughtful op/ed in the Los Angeles Times, immigration expert Wayne Cornelius explains why the self-deportation strategy endorsed by President-Elect Donald Trump and Kris Kobach will not work. As he concludes,
"When my research team asked hundreds of immigrants working illegally in California how they obtained their most recent U.S. job, more than three out of five reported that their employer probably knew, or knew for sure, that they were not authorized to work in the United States. Absent a significant increase in worksite investigations and criminal prosecutions, such employers will not change their hiring practices.
Mass self-deportation is destined to remain a fantasy of immigration hawks. Turning the U.S. into a police state to get rid of a large chunk of the labor force that most citizens consider indispensable is not politically sustainable, let alone economically sensible."
Later this morning, the Supreme Court will hear oral arguments in Jennings v. Rodriguez, a class action challenge to the U.S. government's immigrant detention policies and denial of bond hearings. Here is my preview of the argument for SCOTUSBlog. As Grace Meng of Human Rights Watch explains, Jennings is an important case. The case has taken on greater significance with the election of Donald Trump. As discussed here and here, he has promised that a Trump administration will aggressively use detention as an immigration enforcement tool.
There is only one argument this morning. Ian H. Gershengorn, Acting Solicitor General, will be arguing the case for the Petitioners. Ahilan T. Arulanantham of the ACLU of Southern California, a 2016 MacArthur Fellow, will argue the case for the Respondents.
Alejandro Rodriguez/ACLU Picture
I will be posting a recap of the oral arguments in the next day or so on SCOTUSBlog and will post a link on the ImmigrationProf blog. Stay tuned!
Immigration Article of the Day: Cuban Migration to the United States in a Post-Normalized Relations World by Kevin J. Fandl
Cuban Migration to the United States in a Post-Normalized Relations World by Kevin J. Fandl, Temple University - Fox School of Business and Management October 25, 2016 Minnesota Journal of International Law, Forthcoming
Abstract: Relations between Cuba and the United States have ebbed and flowed between outright hostility and friendship. Recently, major steps have been taken by both countries to put the Cold War past behind them and work toward a sustainable relationship for the future. As economic and political relations between the two neighbors improve, it is imperative that immigration policy be part of the transitional process. Cubans have enjoyed special immigration status for half a century largely as a result of the Cold War. The process of economic normalization must include a normalization of immigration policy, phasing-out the unnecessary and unfair favoritism that is a vestige of a long-gone era of our history.
Tuesday, November 29, 2016
This surely was the tweet of the day:
Of course, our readers know that flag burning is protected speech - see Texas v. Johnson and United States v. Eichman. It certainly isn't the basis for "loss of citizenship." For any non-immprof readers out there, let me take a moment to note that the vast majority if U.S. citizens cannot "lose" their citizenship. Only naturalized citizens are at risk for denaturalization and flag burning isn't one of the very limited circumstances that might trigger such extreme consequences.
New American Undergraduates: Enrollment Trends and Age at Arrival of Immigrant and Second-Generation Students
This National Center for Educational Statistics Statistics in Brief profiles the demographic and enrollment characteristics of New Americans (undergraduates who are immigrants or children of immigrants). Based on data from the 2011–12 National Postsecondary Student Aid Study (NPSAS:12), the report examines how the proportions of immigrants (first generation) and children of immigrants (second generation) in postsecondary education have changed over time and compares the demographic characteristics, academic preparation, and postsecondary enrollment of these New Americans with other undergraduates (third generation or higher). The core analysis compares the demographic characteristics, academic preparation, and enrollment characteristics of New American students with a focus on Asian and Hispanic undergraduates. The report also examines immigrant students’ age at arrival in the United States and its association with their academic preparation and enrollment.
Dan Piraro got some flak for this comic. People thought he was one of the people he was aiming to skewer with this post.
On his blog, Piraro wrote:
This cartoon was was my attempt to point out how incredibly dangerous sneaking into a country is and how very desperate you’d have to be to even try it. Charlatans and race-baiters like Trump like to shout that illegal immigrants are taking jobs from Americans and wreaking havoc on society, but the truth is actually the opposite.Here’s a smart person from Forbes’ website explaining that not only are they not stealing jobs from Americans, they improve local economies. Unscrupulous politicians and other people have been pointing fingers at the “others” (people of races, religions, lifestyles, ethnicities, or sexual orientations that are different from whatever mainstream they are attempting to persuade) for thousands of years and it works on a certain percentage of people every single time. Don’t buy into it. Be smarter than that.
Michael A. Olivas, Interim President, University of Houston-Downtown
It is doubtful that sanctuary proposals for immigrant students will provide actual sanctuary or create any genuine change, argues Michael A. Olivas, who calls on campuses to take much more meaningful actions.
A version of this op-ed first appeared in the Sacramento Bee.
The Los Angeles Times reports that leaders of California’s three systems of public higher education sent a joint letter to President-elect Donald Trump today urging him to allow undocumented students to continue their educations without fear of deportation.
“These sons and daughters of undocumented immigrants are as American as any other child across the nation” in all but the letter of the law, do not pose a safety threat and have contributed to their communities, wrote University of California President Janet Napolitano, Cal State Chancellor Timothy P. White and Eloy Ortiz Oakley, chancellor-designate of California Community Colleges.
The California entreaty comes after more than 300 college presidents signed an open letter to the country’s leaders pushing for DACA to be continued and expanded as a “moral imperative and a national necessity.”
Seung Min Kim on Politico lists some of the steps that Attorney General Jeff Sessions might take with respect to implementing a hard line immigration policy. She begins: "If confirmed as Trump’s attorney general, the Alabama senator would instantly become one of the most powerful people overseeing the nation’s immigration policy, with wide latitude over the kinds of immigration violations to prosecute and who would be deported." Democratic leaders in the Senate have promised a thorough confirmation process in considering Sessions' nomination.
Senator Sessions has this "immigration plan" on his Senate website. The website explains that in "Defending American workers":
"Senator Sessions is committed to immigration reform that serves the national interest – not the special interests – and that curbs the unprecedented flow of immigration that is sapping the wages and job prospects of those living and working here today.
Sessions was a leading opponent of the 2007 amnesty bill and 2013 “Gang of Eight” amnesty bill. The Gang of Eight bill eviscerated immigration enforcement, opened up welfare and citizenship to millions of illegals aliens, issued an astonishing 33 million green cards in a single decade, and doubled the annual flow of temporary workers to fill jobs at lower wages.
Sessions has also been a leading opponent of President Obama’s unconstitutional executive amnesties, which gives jobs and benefits to illegal workers at the expense of struggling families.
A former Ranking Member of the Judiciary Committee, Senator Sessions now serves as Chairman of the Subcommittee on Immigration and the National Interest, where he promotes an immigration policy that prioritizes the jobs, wages, and security of the American people."
Sessions could be an Attorney General like John Ashcroft, the Attorney General in President George W. Bush's first term. Among other things, Ashcroft oversaw the "streamlining" of the Board of Immigration Appeals (and removal of more liberal Board members along with an increase in the number of summary dispositions), announced the "special registration" program applying to certain Muslim noncitizens in the "war on terror," and has been accused of civil rights abuses in various measures taken in the name of national security. Ashcroft "is one of those people who are busy deflecting claims of racism and bigotry that have been hurled at Sessions."
NBC News reports that an Ohio State University student posted a rant shortly before he plowed a car into a campus crowd and stabbed people with a butcher knife in an ambush that ended when a police officer shot him dead.
Abdul Razak Ali Artan, 18, wrote on what appears to be his Facebook page that he had reached a "boiling point," made a reference to "lone wolf attacks" and cited a radical cleric.
Ali was a student at the Ohio State University and was a legal resident of the United States, reports NBC News. The network adds that Artan was a refugee from Somalia. According to NBC, Artan was admitted to the United States in 2014 having previously lived in Pakistan since 2007. Artan had been a logistics student at the OSU business school.
In May 2016, Artan was listed as a graduate of the Columbus State Community College. During his Humans of Ohio State piece, Artan complimented the prayer facilities at Columbus State Community College. The school said, in a statement to ABC News:
Abdul Razak Ali Artan was enrolled at Columbus State Community College from autumn semester 2014 through summer semester 2016. He graduated with an associate of arts degree in spring of 2016 and then continued taking additional noncredit classes through summer semester 2016.
Speaking to NBC News, the president of the Somali Community Association of Ohio said:
Every Somali person has been calling me, and everybody is crying. This is a shock. As a Somali community here, we are in a state of shock. In Columbus, we live in a very peaceful community. This is gonna affect the life of everybody. We are American and we don’t want somebody to create this problem.
OVER 120 ORGANIZATIONS URGE ALL CALIFORNIA K-12 SCHOOLS AND COLLEGES TO BE DESIGNATED AS SANCTUARY SCHOOLS AND CAMPUSES: College for All Coalition Calls for Safe, Inclusive, and Equitable Learning Environments for All Students In Response to Fears of Dep
Asian Americans Advancing Justice-Los Angeles (Advancing Justice-LA), together with more than 120 community, education, health, faith, labor, student, and parent organizations in California, has released an open letter calling on California’s educational leaders to address the growing fear around deportation and the troubling spike in hate crimes, incidents, and bullying in K-12 schools and on college campuses since the election of Donald Trump. Coordinated by the College for All Coalition, the open letter calls for safe, inclusive, and equitable learning environments for California students, especially those who are most vulnerable.
While some K-12 districts and higher education institutions have already indicated they plan to take steps to protect undocumented immigrant students, the open letter offers specific recommendations for sanctuary schools and campuses, including prohibiting access to federal immigration officials unless there is a judicial warrant and guaranteeing privacy and refusing to release information regarding the immigration status of students, staff, and community members.
Pema Levy of Mother Jones reveals a sobering possibility of an appointment as Department of Homeland Security Secretary:
"Donald Trump was scheduled to meet Monday with Milwaukee County Sheriff David Clarke Jr., a Trump supporter and surrogate during the campaign who is now reportedly being considered to head the Department of Homeland Security. Clarke is known for his extreme views on policing—including his conviction that there is a war on cops but no police brutality—and for his attacks on Black Lives Matter. One of his most out-there positions: suspend the constitutional rights of up to a million people, and hold them indefinitely at the US prison in Guantanamo Bay, Cuba.
Clarke's extremist approach to homeland security is no secret. In his upcoming memoir, Cop Under Fire: Moving Beyond Hashtags of Race, Crime and Politics for a Better America, he advocates treating American citizens suspected of terrorism as "enemy combatants," questioning them without an attorney, and holding them indefinitely, the Milwaukee Journal Sentinel reported. Their cases would be handled by a military tribunal rather than a traditional court."
Donald Trump did meet with Clarke yesterday.
Immigration Article of the Day: Framing for a New Transnational Legal Order: The Case of Human Trafficking by Paulette Lloyd and Beth A. Simmons
Framing for a New Transnational Legal Order: The Case of Human Trafficking by Paulette Lloyd (Government of the United States of America - Department of State) and Beth A. Simmons University of Pennsylvania Law School 2015 In TRANSNATIONAL LEGAL ORDERS, ed. Terence C. Halliday and Gregory Shaffer, Cambridge 2015
Abstract: How does transnational legal order emerge, develop and solidify? This chapter focuses on how and why actors come to define an issue as one requiring transnational legal intervention of a specific kind. Specifically, we focus on how and why states have increasingly constructed and acceded to international legal norms relating to human trafficking. Empirically, human trafficking has been on the international and transnational agenda for nearly a century. However, relatively recently – and fairly swiftly in the 2000s – governments have committed themselves to criminalize human trafficking in international as well as regional and domestic law. Our paper tries to explain this process of norm convergence. We hypothesize that swift convergence on norms against human trafficking and on a particular legal solution – criminalization – is the result of a specific set of conditions related to globalization and the collapse of the former Soviet Union in the 1990s. We argue that a broad coalition of states had much to gain by choosing a prosecutorial model over one that makes human rights or victim protection its top priority. We explore the framing of human trafficking through computerized textual analysis of United Nations resolutions – the central forum for debates over the nature of human trafficking and what to do about it. We look for evidence of how the framing of human trafficking has shifted over time, and how the normative pressure as reflected in these documents has waxed and waned. We will argue that a binding legal instrument became possible because of the normative convergence solidified by linking human trafficking to transnational crime more generally.
Monday, November 28, 2016
TRAC reports that immigration remains the major focus of all federal criminal enforcement efforts. The latest available data show that criminal prosecutions for illegal entry, illegal re-entry, and similar immigration violations made up 52 percent of all federal prosecutions in FY 2016. During the 12 months ending September 30, immigration prosecutions totaled 69,636.
This number compares with just 63,405 prosecutions for all other federal crimes -- including drugs, weapons, fraud, and violations of the thousands of other criminal provisions that the federal government is responsible for enforcing.
The Southern District of Texas was the most active during FY 2016 with 24,549 immigration prosecutions, followed by the Western District of Texas with 18,989. The Western District of Texas showed the greatest growth in numbers as compared with FY 2015, while Arizona recorded the largest drop in immigration prosecutions.
Reverse Migration is a NYT video about migration between Cajolá, a Mayan town in the western highlands of Guatemala, and the United States. The story follows one man - Eduardo Jimenez - who came to the US from Cajolá, lived here for 10 years, got shot, and returned to Guatemala. He is now trying to develop the Cajolá economy in order to halt or reduce emigration. He's doing this by focusing on creating a female workforce, with projects like Mayamam Weavers.
The video addresses some of the push and pull factors of immigration, the importance of remittances, and even medical repatriation. There's a lot packed into 16 minutes of film. Consider flagging it for your next semester.
This Wednesday, the Supreme Court will hear a case, Jennings v Rodriguez, challenging the lawfulness of immigrant detention. Here is a preview of the case. President-Elect Donald Trump has promised to "End catch-and-release. Under a Trump administration, anyone who illegally crosses the border will be detained until they are removed out of our country." Detention thus is likely to be on the rise in a Trump administration.
Thanks to a case Alex Lora and his legal team at Brooklyn Defender Services (BDS) and New York University School of Law (NYU) brought to challenge his immigration detention, since 2015, all immigrants detained for six months in the Second Circuit now have the right to a day in court where a judge can determine if their continued detention is justified.
Next Wednesday, on November 30, 2016 the Supreme Court will hear Jennings v. Rodriguez, a case brought by the American Civil Liberties Union (ACLU) that could provide nationwide access to bond hearings to immigrants like Mr. Lora who are held in long-term detention.
Across the country, thousands of people languish in immigration jails as they await their court hearings. For Mr. Lora, mandatory detention cost him his job, his ability to provide for his family, and his two-year-old son, who was placed in foster care after Mr. Lora was taken from his home. Since his release, he has been able to rebuild his life and regain custody of his son. For Mr. Lora and others in the Second Circuit, bond hearings have provided a critical procedural protection to prevent harmful and needless long-term detention.
In the video above, hear from Mr. Lora himself about his life and his experience in detention, which illustrates what is at stake in Jennings.
Abstract: Migration emergencies are a commonplace feature in contemporary headlines. Pundits offer a variety of causes provoking these emergencies. Some highlight the deadly risks of these journeys for the migrants. Many more express alarm at the potential threats these mass influxes pose to their destination countries. But few question whether these migrant flows are, as commonly portrayed, unexpected and unpredictable. This paper asks whether these migration emergencies are surprising events or the logical and foreseeable outcomes of the structural failures of the global migration system. In particular, it interrogates the architecture of international migration law, arguing that the current framework is unsustainable in today’s globalized world.
This is a story about the legal construction of crisis. Several literatures offer compelling insights into the construction of migration crises, but fail to explore the crucial role of international migration law. Scholars of forced migration view the legal framework as an inadequate response to crises but not as a root cause. Others have highlighted the role that crises play in the development of international law, demonstrating how crises impact law, but failing to examine how law helps to construct those crises.
This article begins to unpack the role of international migration law in constructing migration “crises”. International migration law, because it is codified in written instruments and nearly impossible to alter, entrenches sociocultural frames that might otherwise be substantially more flexible. International law has constructed a deeply path-dependent approach to international migration that not only obscures systemic inequality but also consumes alternate conceptions of morality. In response to this critique, the article suggests a new approach to global migration law that aims to govern migrant flows more effectively. In short, it aims to establish international migration law as a separate subfield of international law rather than the afterthought that it currently represents.
Sunday, November 27, 2016
President-elect Donald Trump made immigration a centerpiece of his presidential campaign, often offending immigrants and others with his promise to build a wall along the U.S.-Mexico border. Trump also pledged to remove the approximately 11 million undocumented immigrants in the United States, a proposal that frightens immigrant communities.
There are a number of ways that a Trump administration might seek to accomplish mass removals, but they are fraught with legal obstacles and potential public backlash.
Removal of immigrants with criminal problems
In the beginning of his campaign, Trump targeted immigrants from Mexico as “criminals.” In so doing, he tapped into popular fears that persist even though social science research has demonstrated that immigrants are more, not less, law-abiding than native-born Americans.
In a recent interview on “60 Minutes,” Trump promised to immediately deport 2 million to 3 million undocumented immigrants, with the initial plan to focus on criminals. His administration may broaden the net to include those merely arrested for minor crimes.
In addition, Trump may seek to encourage state and local law enforcement cooperation with federal immigration enforcement authorities. Such efforts may include seeking noncitizens arrested of all crimes to be detained and turned over to federal authorities. Allowing state and local law enforcement to participate in the federal enforcement is not risk free. In Arizona, Maricopa County Sheriff Joe Arpaio once supervised a sheriff’s office deputized to enforce immigration laws but was later found guilty of racial profiling.
Along these lines, there have been threats of federal defunding of “sanctuary cities” by a Trump administration. Such action would require an authorization by Congress and still might be subject to legal challenges.
Trump promised to create a “deportation force” to remove all undocumented immigrants from the country. He suggested something akin to President Dwight Eisenhower’s “Operation Wetback” in 1954, a military-style operation that resulted in the deportation of hundreds of thousands of persons of Mexican ancestry, including many U.S. citizens.
One possibility short of a mass deportation campaign is to increase the use of workplace raids. In 2008 during President George W. Bush’s administration, immigration authorities conducted the largest single raid of a workplace in U.S. history at the Agriprocessors Inc. plant in Postville, Iowa, resulting in the arrest of nearly 400 immigrant workers. Immigrant rights advocates claimed that the raids violated the civil rights of the workers.
A national controversy followed and likely convinced the Obama administration not to vigorously pursue workplace raids.
Along these lines, the Trump administration may seek to require the use by employers of a federal computer database known as E-Verify, which currently allows employers voluntarily to verify their workers. The Trump transition team reportedly is drafting legislation to make use of the system mandatory by all employers. One major problem is that the computer database is prone to errors. Some errors result in employers discharging workers who are legally entitled to work.
The Trump administration’s transition website has promised to “end catch-and-release,” which could increase the use of detention and presumably will resist allowing immigrants to “bond out” of custody while their proceedings are pending. Removal proceedings can take years, with the immigration courts buried in a massive backlog.
The Obama administration used detention aggressively in 2014, when the nation experienced the migration of thousands of women and children fleeing violence in Central America. That detention has resulted in litigation. In addition, the Supreme Court will soon hear a constitutional challenge to detention without possibility for release and any review by a court.
In short, increased use of detention by a Trump administration is likely to result in many lawsuits. Expect those lawsuits to last for years.
Time will tell on how effective any of these steps will be in reducing America’s undocumented population.