Tuesday, February 21, 2017
The Supreme Court hears arguments in Hernandez v. Mesa later this morning, which involves a Border Patrol officer shooting and killing of a Mexican teen on Mexican soil. The case raises complex issues concerning the ability of the parents to sue under these circumstances. Edith Roberts has collected commentary on the case on SCOTUSBlog.
UPDATE ( Feb. 21, 11:50 PST): Amy Howe for SCOTUSblog recaps the argument. She observes the Justices "seemed frustrated by the family’s inability to identify [a bright line] rule [for liability]. In the end, though, it’s not clear that the rule will matter, if the justices don’t agree that the Border Patrol agent can be sued in federal court at all." The most interesting aspect of the morning, however, was the following:
"Before the oral argument began, Acting Solicitor General Noel Francisco presented the new U.S. attorney general, Jefferson B. Sessions, to the court. On behalf of the justices, Chief Justice John Roberts wished Sessions “well in the discharge of the duties of your new office.” Sessions acknowledged the good wishes, but did not stay for the oral argument."
Here is the transcript.
For some immigration attorneys, it was an extremely busy Presidents Day weekend. Josh Gerstein of Politico reports that the Trump administration is taking another immigration fight to the U.S. Court of Appeals for the Ninth Circuit.
The latest battle is over the rights of detained immigrant children and teenagers to immigration court hearings to determine suitability for release on bond. U.S. District Court Judge Dolly Gee ruled in Flores v. Lynch -- a case that was originally settled decades ago -- on Inauguration Day that such "unaccompanied" minors are entitled to go before an immigration judge in accordance with the terms of the 20-year-old legal settlement.On Friday night before the three day weekend, the Justice Department filed an emergency motion with the Ninth Circuit requesting a stay of Gee's order the appeal is pending.
Gee's "order unquestionably diverts the agencies’ time, resources, and personnel away from the reunification process provided in [a 2008 law] and away from the already-burdened operations of the immigration courts thus interfering with pressing immigration adjudication and enforcement priorities," Justice Department lawyers wrote in their request for an emergency stay.
Attorneys for the detained minors responded Monday with a filing calling the government's arguments "legally and factually specious."
The immigrants' lawyers say that in some instances teenagers have been held for more than a year without hearings, only to be released by an immigration judge soon after they turn 18. "It is virtually self-evident that needlessly detaining children is profoundly injurious," the minors' attorneys wrote. University of California at Davis law professor Holly Cooper is one of the lawyers for the immigrant children.
The Ninth Circuit decided an appeal in Flores v. Lynch in July 2016, largely affirming Judge Gee's central rulings in the case. The court described the case as follows:
"In 1997, the plaintiff class (“Flores”) and the government entered into a settlement agreement (the “Settlement”) which “sets out nationwide policy for the detention, release, and treatment of minors in the custody of the INS.” Settlement ¶ 9. The Settlement creates a presumption in favor of releasing minors and requires placement of those not released in licensed, non-secure facilities that meet certain standards.
In 2014, in response to a surge of Central Americans attempting to enter the United States without documentation, the government opened family detention centers in Texas and New Mexico. The detention and release policies at these centers do not comply with the Settlement. The government, however, claims that the Settlement only applies to unaccompanied minors and is not violated when minors accompanied by parents or other adult family members are placed in these centers.
In 2015, Flores moved to enforce the Settlement, arguing that it applied to all minors in the custody of immigration authorities. The district court agreed, granted the motion to enforce, and rejected the government’s alternative motion to modify the Settlement. The court ordered the government to: (1) make “prompt and continuous efforts toward family reunification,” (2) release class members without unnecessary delay, (3) detain class members in appropriate facilities, (4) release an accompanying parent when releasing a child unless the parent is subject to mandatory detention or poses a safety risk or a significant flight risk, (5) monitor compliance with detention conditions, and (6) provide class counsel with monthly statistical information. The government appealed, challenging the district court’s holding that the Settlement applied to all minors in immigration custody, its order to release parents, and its denial of the motion to modify.
Although the issues underlying this appeal touch on matters of national importance, our task is straightforward— we must interpret the Settlement. Applying familiar principles of contract interpretation, we conclude that the Settlement unambiguously applies both to accompanied and unaccompanied minors, but does not create affirmative release rights for parents. We therefore affirm the district court in part, reverse in part, and remand."
It is hard to see how the U.S. government hopes to win the emergency stay motion. Is it a part of a political strategy to file and lose motions and appeals in the Ninth and then blame the "ultra-liberal" Ninth Circuit for trying to put the kibosh on the Trump's immigration plan?
The Immigration Court has steadily increased the number of cases it has completed. According to the latest court data updated through the end of January 2017 and analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, case completions during the first four months of FY 2017 are above the comparable period from last year. If this pace continues, this will mark the third year in a row that has seen an increase, and will represent a 17 percent rise since FY 2014. Removal orders after seeing little increase in their numbers since FY 2014, are up so far this year.
Unfortunately, this growth in case completions has been insufficient to stem the growing backlog of cases still waiting for resolution before the Immigration Court. At the end of January 2017, the court's backlog had increased to a record 542,411. Even if no additional cases were filed, the backlog now represents over a two and a half year workload for the court's judges, based upon its current capacity to handle the matters before it.
For more details, including the top ten states with the largest number of removal orders issued so far this FY, see this month's snapshot report here. Texas, California, Florida, Georgia, and New York at the top five states in terms of removals.
Monday, February 20, 2017
In 2011, Turkish musician Sarp Yeletaysi released "Schengen Macht Frei" under the pseudonym Sarpinto. It's an alternative rock ode to the visa hurdles facing Turkish citizens attempting European travel.
Give it a listen.
Stanford Journal of Civil Rts & Civil Liberties - Lawyer's Guide to Activism & Resistance Under Trump
A special issue of the Stanford Journal of Civil Rights & Civil Liberties, entitled "A Lawyer's Guide to Activism, Resistance and Change Under Trump," features a collection of essays written by Stanford Law School faculty and is well worth reading for inspiration, wisdom and insight. It includes pieces by Jayashri Srikantiah ("Resistance and Immigrants' Rights") and Shirin Sinnar ("Human Rights, National Security and the Role of Lawyers in the Resistance.")
The entire collection is available online here.
Stanford Law School, Immigrants’ Rights Clinic: Staff Attorney
The Mills Legal Clinic of Stanford Law School has an immediate opening for a staff
attorney in its Immigrants’ Rights Clinic (“IRC”) to focus on the urgent needs of the
immigrant community—including members of the Stanford community—for litigation
and advocacy in light of recent developments, including the executive actions undertaken
by the Trump Administration. This is a one-year, fixed term position with the option of
an additional year dependent on need and the budget.
The Staff Attorney will be invited to join the thriving clinical community at Stanford Law
School where, together with the clinical faculty and staff, she or he will help train law
students in support of the University’s policies and practices on immigrant’s rights. The
Staff Attorney will report to Professor Jayashri Srikantiah, Director of the IRC. Specific
duties will include:
Under the supervision and in partnership with Professor Srikantiah, develop
impact litigation and advocacy strategies including those that address the needs of
the Stanford University community.
Supervise Stanford Law School students participating in this work, particularly
small-group supervision and review of students’ written work, client interactions,
and oral advocacy.
Engage in substantial independent litigation and advocacy.
Participate in events, conferences, and symposia related to this work; serve as an
expert resource to the Stanford community.
Applicants for this staff attorney position must have:
At least 3 years of experience working on immigration and civil rights issues (5-7
years strongly preferred);
Significant experience with federal court litigation;
Strong academic credentials and multi-tasking abilities;
Excellent teamwork skills;
Experience working with diverse immigrant communities (Spanish language
capability preferred); and
Successful teaching and student supervision experience or the demonstrated
potential for such teaching and supervision.
Applicants should submit resumes through http://stanfordcareers.stanford.edu/,
referencing job number 73938. Applications will be considered on a rolling basis until
the position is filled. Direct link to apply: https://stanfordcareers.stanford.edu/jobsearch?
In addition, applicants should send the following materials to the addresses below:
a statement no longer than two pages describing: (i) prior experience in
immigration litigation and advocacy; (ii) other relevant experience; and (iii)
information relevant to the applicant's interest and potential for clinical
supervision and teaching;
a list of at least three references;
a complete law school transcript; and
a sample brief that the applicant authored (without substantial editing by others)
that was filed in immigration court or the federal courts.
Applicants may send the materials electronically to Judy Gielniak, Associate Director of
the Mills Legal Clinic, at firstname.lastname@example.org. Hard copies may be sent to:
Professor of Law
Director, Immigrants’ Rights Clinic
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305-8610
Countries affected by Trump travel suspension accounted for more than 900,000 U.S. entries since 2006
A Pew Research Center study shows that the seven nations affected by the January 27, 2017 executive order that prevents many of their citizens from entering the United States for 90 days accounted for 904,415 legal U.S. entries between fiscal years 2006 and 2015. This group includes visitors, students and diplomats as well as refugees and new lawful permanent residents.
Entries from the affected countries made up 0.2% of the more than 517 million total entries to the U.S. over the same period. (Entries include individuals visiting the U.S. as well as new lawful immigrants and refugees. They do not include unauthorized entries or asylum seekers. One person may account for multiple entries.)
The order, signed by President Donald Trump on Jan. 27, specified that most citizens from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen could not enter the U.S. until security procedures used to evaluate visa applications have been reviewed. (Diplomats and those traveling with visas for government officials are exempt from the ban.) The president’s new order also temporarily halted the U.S. refugee resettlement program for 120 days and indefinitely banned most Syrian refugees.
Prior to the executive order, citizens of the seven restricted countries were able to legally enter the U.S. in several ways. Official data are available on three categories of legal entrants: temporary immigrants, refugees and new lawful permanent residents.
In response to a court injunction barring the implementation of the executive order, President Trump reportedly will issue a new one, with more narrow travel restrictions on noncitizens from the same seven nations.
The number of international migrants worldwide has continued to grow rapidly in recent years. The migration pressures of this century can only be dealt with through comprehensive policies that give consideration to issues such as migration and development, forced migration and the challenges to migration. Successful international migration management also requires a highly cooperative approach across countries.
The International Centre for Parliamentary Studies is offering its professionally accredited specialist five-day training programme on how to best manage migration flows, the Professional Certificate in Strategic Migration Management which will take place in London from 15th - 19th May 2017 in London, UK.
Please do not hesitate to contact us directly for enquiries or registrations on either of these programmes on +44 20 3137 8648, or at email@example.com.
Two documentaries on the plight of refugees off the Italian coast and the Greek coast, respectively, have received Oscar nominations this year.
In Fire at Sea, the Italian Coast Guard is constantly searching the open sea for makeshift boats overflowing with hundreds of souls, most of them women and children.
Rossi's documentary captures the drama. In one instance, one member of the Coast Guard receives a desperate call from a woman who is pleading for help. Time is of the essence; if the Coast Guard does not get to them immediately, they will drown.
Rossi's documentary shows the migrant drama unfolding next to the quiet lives of unassuming islanders.
The refugee crisis is also at the center of Matziaraki's 4.1 Miles. The film chronicles around-the-clock rescue missions off the Greek island of Lesbos. Kyriakos, a member of the Greek Coast Guard and the main character in the story, says that he and his team are called to rescue 200 people per hour.
"The bosom of America is open to receive not only the Opulent and respected Stranger, but the oppressed and persecuted of all Nations and Religions; whom we shall welcome to a participation of all our rights and privileges . . . . "
Sunday, February 19, 2017
This article is a satire in the form of a legal memo written for President-Elect Donald Trump circa November 2016. It counsels Mr. Trump to obtain Mexican funding for a U.S.-Mexico “Wall” via United Nations Security Council sanctions. These sanctions would freeze remittances (that is, “hold them hostage”) until Enrique Peña Nieto wired the U.S. sufficient monies for construction. The memo, which is entirely the product of my imagination and legal study, contemplates one of the many possible worst case scenarios threatened by the Trump presidency. Through the arts of law and literature, I aim to show how the rule of law may so easily buckle and splinter beneath the increasing tide of U.S. as well as global nationalism and racism. I take inspiration, of course, from Jonathan Swift’s A Modest Proposal (1729), as well as the legal-literary experiments found in Derrick Bell’s Faces at the Bottom of the Well: The Permanence of Racism (1993) and Richard Delgado’s Storytelling for Oppositionists and Others: A Plea for Narrative, 87 Michigan Law Review 2411 (1989).
Sweet 16 and Never Been Detained -- What It’s Like to Be a Teen Living in an Immigration Detention Center: The New Normal?
What does it say about American society when a popular teen magazine is running an article on teens in immigrant detention? Teen Vogue begins the story as follows: "Adriana had long looked forward to her 16th birthday — but when the date finally arrived, she celebrated not at home with her family and friends, but in a Texas center for immigrants that felt more like a prison." The gist of story centers around immigrant detention:
"Adriana, Allison, and their mother were picked up by border patrol after entering Texas in August 2015. Shortly thereafter, they were sent to the South Texas Family Residential Center, a 2,400-bed center in the city of Dilley, a community that’s become an immigrant detention capital. The girls expected to be released after a short stay to join their father, who had left El Salvador several years prior and was living and working in Dallas. But while . . . the average detainee [allegedly] is held for only 20 days, their family is one of a number whose stays have stretched past the one-year mark."
Ariana and Allison in happier times. The family was released from detention but the future is very uncertain.
The Department of Homeland Security is attempting to implement the two January 25, 2017 Executive Orders that seek to tighten immigration enforcement. CNN and other new outlets report that DHS Secretary John F. Kelly plans to issue guidances (here and here are drafts) on the implementation of the orders in ways that will ramp up immigration enforcement. Greg Siskind has summarized the provisions of the border enforcement memo.
I have always been of the view that these two Executive Orders. which are focused on immigration fro Mexico and Central America, will have impacts on much greater numbers of noncitizens than the January 27 Executive Orderss visa and refugee admissions suspension (which has gotten much more publicity and been the subject of a flurry of high profile lawsuits). Namely, the heightened focus on crime-based removals will likely ensure for the indefinite future that 95% or so of the noncitizens removed from the country are from Latin America. just as was the case during the Obama years.
President's Day is tomorrow. On that occasion, Cyrus Mehta and Sophia Genovese-Halvorson blog about the limits on presidential power in light of recent presidential immigration initiatives:
"President Trump derives his authority to assert maximum power through the plenary power doctrine, wlich arose from a Supreme Court case in the late 1800s, Ping v. United States, 130 U.S. 581, that upheld the racist Chinese Exclusion Act. In the 21st century, after the United States has made such strides in civil rights, women’s rights, and marriage equality, there is no longer place for plenary power as a justification to violate the Constitution. Allowing President Trump to assert such maximum power, based on the plenary power doctrine, only takes America back more than a hundred years after all the progress that has been achieved. The plenary power, as asserted in the travel ban EO, also sends a wrong message to the world that America is no longer a welcoming place for people to travel, do business, temporarily work, or to make a permanent home. Being unwelcoming, arbitrary and intolerant is inconsistent with the notion of America as a great nation. On this President’s Day, it is important to reflect whether now is the opportune moment to reassess the plenary power doctrine that was grounded in a racist law whose purpose was to exclude Chinese nationals just as the current or future EO is aimed against banning Muslims. It is high time for the courts to once and for all recognize the supremacy of the Constitution over the president’s absolute power."
Saturday, February 18, 2017
Yesterday, I took a group of students from my Immigration Law course to the Canadian border for a tour of the Pembina port of entry, the busiest POE on a stretch including all of Minnesota, North Dakota, Montana, and Idaho. On a particularly busy day, the port screens between 2,500 and 3,000 passenger vehicles and 800-1,000 commercial trucks.
An SCBPO (Senior CBP Officer) began the tour with a presentation about the Office of Field Operations. We saw two brief videos about the CBP and learned about the CBP training academy as well as the agency's pay scale.
We also learned about how the Northern border differs from the Southern border. For example, while admissibility is a significant focus here, expedited removal is a relatively infrequent occurrence. The POE might see one every few months. The issuance of NTAs (notices to appear) in order to start full removal proceedings are even less common. That's because the Pembina POE largely sees crossings by Canadian citizens as opposed to lawful permanent residents who would be exempt from expedited removal. Withdrawals, on the other hand, are a more daily occurrence.
Our tour of the port facility took us to the on-site firing range, a commercial-side booth (where officers screen truck drivers), the truck inspection garage (with its cage for locking up confiscated goods), the truck x-ray facility, the passenger vehicle inspection garage, the holding cells, and a passenger-side booth. At each point, our three CBP guides answered questions that gave us genuine insight into the breadth of "professional judgment" required to do their jobs.
Our guides also set up a truly unique and fun hands-on activity for our group. They took us to a car in the inspection garage, handed us tools, and instructed us to look for contraband. Our group discovered (with some guidance), two guns, a large block of drugs, money, and drug paraphernalia.
It was a wonderful learning experience.
For years, Cuban migrants who made it to American soil were not returned to Fidel Castro's Cuba. President Obama's move to normalize relations with Cuba has led to immigration policy changes. Last week, the U.S. government returned some Cubans deemed to be "inadmissible" under the U.S. immigration laws to Cuba. The removals are reportedly the first deported by the United States since the end of the "wet foot, dry foot" policy toward Cubans.
Immigration Article of the Day: Improvised Transnationalism: Clandestine Migration at the Border of Anthropology and International Relations by Noelle K. Brigden
Friday, February 17, 2017
The Associated Press is reporting that
"The Trump administration is considering a proposal to mobilize as many as 100,000 National Guard troops to round up unauthorized immigrants, including millions living nowhere near the Mexico border, according to a draft memo obtained by The Associated Press.
The 11-page document calls for the unprecedented militarization of immigration enforcement as far north as Portland, Oregon, and as far east as New Orleans, Louisiana.
Four states that border on Mexico are included in the proposal — California, Arizona, New Mexico and Texas — but it also encompasses seven states contiguous to those four — Oregon, Nevada, Utah, Colorado, Oklahoma, Arkansas and Louisiana.
Governors in the 11 states would have a choice whether to have their guard troops participate, according to the memo, written by U.S. Homeland Security Secretary John Kelly . . . ."
Hans Meyer, the lawyer for Jeanette Vizguerra, addresses supporters and the news media as Vizguerra seeks sanctuary at First Unitarian Society in Denver on Feb. 15. (Marc Piscotty / Getty Images). Photo courtesy of the Los Angeles Times
The world is watching Jeanette Vizguerra, who is now living a life of sanctuary in a church basement in Denver to avoid deportation. Seeking sanctuary in a church, a tradition dating to the middle ages, has been accepted in America for generations, with government officials, in most instances, honoring the practice. President Donald Trump’s immigration enforcement promises and recent raids and roundups around the country have immigrants frightened and concerned
"We really have no idea what to expect from ICE this time around,” said the Rev. Mike Moran of the First Unitarian Society of Denver. Moran’s church is Vizguerra’s sanctuary. The same church also gave sanctuary to Arturo Hernandez Garcia in 2014.