Saturday, September 30, 2017
Immigration Article of the Day: The Unconstitutionality of the Federal Ban on Noncitizen Voting and Congressionally-Imposed Voter Qualifications by Stephen E. Mortellaro
The Unconstitutionality of the Federal Ban on Noncitizen Voting and Congressionally-Imposed Voter Qualifications by Stephen E. Mortellaro, 63 Loy. L. Rev. (2017, Forthcoming)
Congress strikes at the core of state sovereignty when it disenfranchises voters. Yet demands for national disenfranchisement laws have become pervasive since the 2016 election, and Congress has a ready model: a federal statute prohibiting noncitizens from voting in federal elections. Despite upending centuries of state control over voter qualifications, this statute remains unchallenged in court and unexamined in academia; its constitutionality has been assumed. This article challenges this assumption, arguing that the federal ban on noncitizen voting—along with every other voter qualification Congress may impose—unconstitutionally infringes state sovereignty.
Most voting rights scholarship focuses on the constitutional amendments that prevent disenfranchisement based on race, sex, wealth, and age. This article demonstrates how the Constitution limits the federal government even further. By tracing the history of the Elections Clause and analyzing contemporary election law jurisprudence, this article shows how Congress’s traditional sources of authority over federal elections do not empower it to impose substantive qualifications on voters. More fundamentally, examination of the text and history of the Voter Qualifications Clauses reveals that states possess an exclusive power to determine who is ineligible to vote. This analysis makes evident that all congressionally-imposed voter qualifications—even those that do not invidiously discriminate—cannot survive the constraints of American federalism.
Friday, September 29, 2017
New data is in from TRAC. Despite a dramatic drop-off in new Immigration Court cases involving unaccompanied children (UAC) this year, the backlog of pending children's cases has continued to rise. The latest case-by-case court data show that the court backlog of these children's cases reached an all-time high of 88,069 at the end of August 2017. The current backlog of 88,069 represents four times the number of new UAC cases that reached the court during the first eleven months of FY 2017.
Litigation on some UAC cases necessitate complex applications for relief that may involve other government agencies and can stretch on for several years. There are still 16,693 cases pending that began during FY 2014. However the largest number of UAC cases still pending were initiated during the last two years.
Previous research has shown that individuals who have an attorney have much higher odds of success in Immigration Court. Despite many initiatives to increase the availability of representation in children's cases, still nearly three out of ten children whose cases began during FY 2015 were unrepresented. (A total of 61 percent of these cases have already been decided.) Although with additional time some children may be able to locate attorneys, the current figure rises to four out of every ten children who remain unrepresented for cases that began during FY 2016, and jumps to three out of four for cases that originated during FY 2017.
For the full report, click here.
From the Bookshelves: THE LEGAL PROTECTION OF REFUGEES WITH DISABILITIES: FORGOTTEN AND INVISIBLE?, by M. Crock, L. Smith-Khan, R. McCallum, B. Saul
This ground-breaking book focuses on the ‘forgotten refugees’, detailing people with disabilities who have crossed borders in search of protection from disaster or human conflict. The authors explore the intersection between one of the oldest international human rights treaties, the 1951 Convention relating to the Status of Refugees, with one of the newest: the Convention on the Rights of Persons with Disabilities (CRPD). Drawing on fieldwork in six countries hosting refugees in a variety of contexts – Malaysia, Indonesia, Pakistan, Uganda, Jordan and Turkey – the book examines how the CRPD is (or should) be changing the way that governments and aid agencies engage with and accommodate persons with disabilities in situations of displacement. The timeliness of the book is underscored by the adoption in mid-2016 of the UN Charter on Inclusion of Persons with Disabilities in Humanitarian Action adopted at the World Humanitarian Summit.
Immigration and Custom Enforcement arrests of immigrants in cities across the United States are making the news, with ICE touting its "Operation Safe City." The Trump administration reportedly has been targeting sanctuary cities for enforcement efforts.
But immigration arrests may not mean more removals. Nick Miroff for the Washington Post reports that, despite President Trump’s push for tougher immigration enforcement, U.S. agents are on pace to deport fewer people in the government’s 2017 fiscal year than during the same period last year, the latest statistics show.
As of September 9, three weeks before the end of the 2017 fiscal year, ICE had deported 211,068 immigrants, according to the most recent figures provided by the agency. ICE removed 240,255 people during the government’s 2016 fiscal year.
The additional arrests and litigation appear to be putting a new burden on the U.S. federal immigration court system, which faces a backlog of more than 600,000 cases. It may take years before immigrants arrested under Trump can be deported after exhausting their appeals.
Although ICE took into custody more immigrants with criminal records, the fastest-growing category of arrests since Trump’s inauguration is those facing no criminal charges. The agency arrested more than 28,000 “non-criminal immigration violators” between Jan. 22 and Sept. 2, according to the agency’s records, a nearly threefold increase over the same period in 2016.
In a hearing earlier this week before the Homeland Security and Governmental Affairs Committee, U.S. Senator Kamala D. Harris raised concerns over the Trump Administration’s handling of the response to the crisis in Puerto Rico, including granting a waiver for the Jones Act which restricts which ships can travel directly to the island, with Acting Department of Homeland Security Secretary Elaine Duke.
Senator Harris also pressed Duke on the arbitrary October 5 filing deadline for DACA renewals set by DHS. In order to complete the renewal application, some Dreamers currently enrolled have to provide documents and a $495 application fee – all of which will be significantly harder to collect in the wake of Hurricanes Harvey, Irma, and Maria.
Harris said, “And you have given them a month from the time that that word went out. One month only to apply to renew their status, which requires them to submit many forms and fill out the information in those forms. It requires them by October 5th to also provide a $495 application fee within one month. It requires them to supply two passport photographs, passport photographs cost between about 15-20 dollars, last time I looked federal minimum wage is about $7.25 an hour. And so my question to you is, given the responsibilities that they are required to meet to apply before October 5th, given also and we talked about it in this hearing, the impact of Harvey and Irma and Maria, will you consider extending the deadline beyond October 5th for these kids to apply?”
In response to Harris’ questioning, Duke admitted DHS failed to directly notify any of the DACA recipients eligible to renew their application, saying “we have not contacted each individual directly.”
In addition, Harris questioned Duke on the use of data collected for DACA recipients and urged that it not be used against them by ICE. “I will tell you from the perspective of California, these young people are terrified. They are terrified. They were told by your agency that if they submitted this comprehensive information about their background and their status to apply for DACA, that that information would not be shared with ICE. I have asked you, I asked the former Secretary, are you willing to keep America’s promise to these young people and not share their information with ICE? Can you answer that question finally?,” asked Harris.
Harris requested that Duke read a copy of DHS’s DACA FAQs that explicitly states “Information provided in this request is protected from disclosure to ICE and CBP.”
The questioning about DACA is captured in the video above. Secretary Duke's written testimony, which focuses on terrorism, is here.
Hat tip to Ron Glick.
Immigration Article of the Day: The Promise of a Subject-Centered Approach to Understanding Immigration Noncompliance by Emily Ryo
Journal on Migration and Human Security Vol. 5, pp. 285-296
Unauthorized immigrants and immigration enforcement are once again at the center of heated public debates and reform agendas. This paper examines the importance of applying a subject-centered approach to understanding immigration noncompliance and to developing effective, ethical, and equitable immigration policies. In general, a subject-centered approach focuses on the beliefs, values, and perceptions of individuals whose behavior the law seeks to regulate. This approach has been widely used in non-immigration law contexts to produce a richer and more nuanced understanding of legal noncompliance. By contrast, the subject-centered approach has been an overlooked and underappreciated tool in the study of immigration noncompliance. This paper argues that a subject-centered understanding of why people obey or disobey the law has the potential to generate new insights that can advance public knowledge and inform public policy on immigration in a number of important ways. Specifically, the paper considers how the use of this approach might help us: (1) recognize the basic humanity and moral agency of unauthorized immigrants, (2) appreciate not only direct and immediate costs of immigration enforcement policies, but also their indirect and long-term costs, and (3) develop new and innovative strategies for achieving desired policy goals.
Thursday, September 28, 2017
The California Reinvestment Coalition released a new report this week, focused on how anti-immigrant rhetoric and policies are jeopardizing the health, financial security, and safety of immigrant families. The report is based on a survey of community-based nonprofits throughout the state of California, and was also the topic of a webinar earlier this week where nonprofit leaders shared a number of strategies they’ve implemented to better support immigrant families they work with.
“It’s clear from our survey results that the rhetoric and policies coming out of Washington DC are already hurting immigrant families here in California,” explains Paulina Gonzalez, executive director of the California Reinvestment Coalition. “Nonprofits shared with us that the immigrants they work with every day are understandably afraid, and that’s impacting their daily decision-making around things that many of us take for granted- like whether or not to open a bank account or drive our kids to school.”
She adds: “The good news is that local nonprofit organizations are meeting these new challenges head on, by equipping people with information, connecting them with legal and financial resources, providing scholarships for DACA renewals, helping them to prepare for financial emergencies, hosting know your rights training, and serving as strong allies by standing up with, and on behalf of, immigrant families. In addition to the policy recommendations in the report, we’re also calling on foundations, banks, and other corporations who do business in California to increase their efforts to support these communities during this incredibly chaotic time.”
Top-line findings from the 40+ organizations who responded to the survey:
Nearly all (98%) of survey respondents are concerned about the separation of families, while a similar number (95%) are concerned about the deportation of immigrant neighbors and clients.
More than 2/3 of respondents expressed concerns about decreased family incomes as a result of actual deportations or fear of deportations causing people to stop working.
The majority of respondents (62%) are concerned that the current rhetoric and proposed budget policies relating to immigration will lead to less funding for critical services.
A majority of survey respondents (55%) have either seen a drop in the number of clients seeking services since the election or are concerned that this will happen.
The California Reinvestment Coalition will be releasing three new guides in the next month focused on how banks can better support and partner with immigrant families during this tumultuous time, including through offering safe bank accounts, providing loans to small business owners and to pay for naturalization costs, increased philanthropy to nonprofits servicing immigrants, and more.
Domestic service workers often are exploited in the workplace. Colorlines reports on one extreme case. With the promise of 35-hour weeks and $10 an hour plus overtime, Edith Mendoza moved to the United States to care for a German diplomat's family. Instead, she often worked 100 hours per week, had her wages stolen and became seriously ill. Now, in a rare move for a migrant domestic worker, she's suing her old boss.
Entering the Trump ICE Age: Contextualizing the New Immigration Enforcement Regime
by Bill Ong Hing
Forthcoming 5 Tex. A&M L.Rev. ___ (2017)
During the early stages of the Trump ICE age, we seem to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Didn’t we label Barack Obama the “Deporter-in-Chief?” Wasn’t it George Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries and didn’t his ICE commonly engage in armed raids a factories and other worksites? Aren’t there strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras?
What about the fear and hysteria that seems to really be happening in immigrant communities? Is the fear unparalleled? Why is there so much fear? Is the fear justified? Why do things seem different, in spite of rigorous immigration enforcement that has occurred even in recent years?
This article begins with a comparison of what the Trump administration has done in terms of immigration enforcement with the enforcement efforts of other administrations. For example, I compare (1) the attempted Muslim travel bans with post-9/11 efforts by George W. Bush and Iranian student roundups by Jimmy Carter, (2) the Border Wall proposal with the Fence Act of 2006 and Operation Gatekeeper in 1994, (3) restarting Secure Communities (fingerprint sharing program) with Obama’s enforcement program of the same name, (4) expanding INA § 287(g) agreements with Bush efforts under the same statute, (5) the threat of raids by an ICE deportation army with Bush gun-toting raids, (6) extreme vetting of immigrants and refugees with what already existed under Bush and Obama, (7) threatening to cut off federal funds to sanctuary cities with the prosecution of sanctuary workers in the 1980s, (8) prioritizing “criminal” immigrants with Obama’s similar prioritization, and (9) expedited removal in the interior with Bush and Obama expedited removals along the border. Then I turn to the fear and hysteria in immigrant communities that has spread throughout the country. I ask why that fear has occurred and whether the fear has a reasonable basis. I close with a personal reflection on the parallels I have seen and experienced since I began practicing immigration law as a legal services attorney in 1975 and contemplate why enforcement and the resulting fear are different today.
Download a draft of the article here.
On behalf of NYU Law School’s Latinx Rights Scholars Program, please join us for our annual Latinxs in the Law Lecture, “Community Resistance and Immigrant Rights in the Age of Trump,” featuring Luis Angel Reyes Savalza '15, immigration attorney and Director of Community Empowerment at Pangea Legal Services in San Francisco, California.
A recipient of Deferred Action for Childhood Arrivals (“DACA”) and a longtime activist for immigrant rights, Luis Angel has committed his life to empowering immigrant communities in their struggle for human rights and dignity. His innovative work at Pangea on behalf of immigrants has been recently profiled in the New York Times, and he regularly works with his clients and community organizations to champion the rights of all immigrants. He was recently awarded a Soros Justice Fellowship to support his work developing a community-lead deportation defense model for undocumented immigrants. Prior to working at Pangea, Luis Angel was a Latinx Rights Scholar at NYU School of Law (J.D. ’15). As a law student in NYU’s Immigrant Rights Clinic, Luis Angel co-represented and co-argued the case of Lora v. Shanahan in the U.S. Court of Appeals for Second Circuit, securing a right to a bond hearing for immigrants within six months of mandatory detention. Prior to law school, Luis Angel was active in the immigrant rights movement, where he helped organize various protests against the deportations taking place in the Bay Area and across the country. His undergraduate studies focused on the U.S. displacement of campesinos from the countryside of Mexico, and he graduated from the University of California, Berkeley (B.A. ’10) with a degree in Political Economy and Political Science.
Join us as Luis Angel talks about the role of community-led mobilization in the fight for immigrant rights. Refreshments and light fare will be served following the lecture.
President Trump, during his campaign, promised a “deportation task force” to swiftly deport the eleven million undocumented noncitizens in the United States. Within his first week in office, he issued two Executive Orders calling for stricter immigration enforcement and a stronger border. The Department of Homeland Security (“DHS”) Memos implementing his interior and border enforcement executive orders indicate that DHS will use every tool to enforce the immigration laws, expanding the use of procedural tools that bypass immigration courts and ensuring that noncitizens remain detained during these “shadow” deportations. Two of these procedural tools, administrative removal and expedited removal, allow an Immigration and Customs Enforcement (“ICE”) officer or Customs and Border Protection (“CBP”) officer – the immigration police – to sign off on arrest and detention with no involvement of an immigration judge. Such a seizure without a probable cause finding by a neutral, detached magistrate, if occurring within the criminal justice system, would clearly violate the Fourth Amendment.
In this article, I build off of prior scholarship and litigation examining Fourth Amendment violations in immigration law to argue that the arrest and detention pursuant to administrative and expedited removal is an unreasonable seizure. I propose a framework for thinking about the Fourth Amendment violations at issue in these shadow deportation procedures. This framework focuses on the reasonableness of the seizure, not the status of the person harmed by the seizure, and not whether the proceedings that follow are punishment. In doing so, this article examines how the Fourth Amendment’s core concerns are present in the immigration law enforcement context notwithstanding immigration law’s plenary power. As such, the article contributes to the scholarship that has both challenged immigration law’s historical exceptionalism and mapped where the plenary power has not trumped.
Wednesday, September 27, 2017
Brandon Stanton's most recent posts record interviews with DREAMers, like this one:
I was on a leadership team in 5th grade. At the end of the year we were supposed to take a trip to Washington DC. We held fundraisers and everything. But when it was time to go, I didn’t have the identification papers to buy a plane ticket. So our teacher Ms. Rivera decided that we’d take a bus. Just so I could go too. That trip changed my life. It made me want to be a lawyer. And Ms. Rivera became one of the closest people in my life. She always kept in touch. She basically watched me grow up...
From Human Rights Watch:
The White House today reported to Congress that it will lower the US refugee admissions program annual ceiling for fiscal year 2018 to 45,000. It is the lowest annual ceiling since the program was established in 1980 and comes as the world sees the highest ever number of refugees. President Barack Obama pledged that the US would resettle 110,000 refugees in 2018 when he addressed a refugee summit at the United Nations last year.
The following comment can be attributed to Bill Frelick, refugee rights director at Human Rights Watch:
“President Trump’s decision to lower the US refugee ceiling is an abdication of US leadership at a time of greatest need for the world’s refugees. This action not only cuts a lifeline for thousands of refugees, but sends a message to countries on the front line of the crisis, from Bangladesh to Lebanon to Kenya, that US pledges of support can no longer be trusted.”
On a recent, perfect morning at Johnson Farms in northern Michigan, workers climb wooden ladders high up into the trees, picking bags strapped across their bodies. The branches are heavy with fruit that glows in the morning sun. Their fingers are a blur, nimbly plucking fruit and filling bushel bags: about 50 pounds per load. It's hard, sweaty work.
Apple season was just getting underway on Old Mission Peninsula, a finger of land poking into Lake Michigan, dotted with lush farms.
The pickers range in age from 21 to 65, and all of them are Mexican. As in the rest of the U.S., growers in heavily agricultural northern Michigan rely overwhelmingly on migrant laborers to work the fields and orchards.
According to the farm owners, the workers either came from Mexico on temporary H2A visas or they have paperwork showing they are in the U.S. legally.
Farmers from Georgia to California say they have a problem: not enough workers to harvest their crops.
It's estimated anywhere from half to three-quarters of farmworkers are in this country illegally, and some growers say that President Trump's anti-immigrant rhetoric has made a chronic worker shortage even worse. Read more...
The reggae band Talawa was formed in 2006, and it released 3 records in ten years. The documentary follows the band and their sound engineer during a journey in Central America and the United States motivated by the false expectations of a tour contract. The video is by the International Organization for Migration.
BuzzFeed News first reported the new rule on Monday. It is set to go into effect on Oct. 18 after a public comment period.
Undocumented workers face a new harsh reality under the Trump administration. Federal law’s prohibition of undocumented work has facilitated exploitation because workers fear being brought to the attention of immigration authorities. The current administration’s aggressive stance towards worksite enforcement will only exacerbate abuses against undocumented workers, such as wage theft, dangerous working conditions, or human trafficking.
Given the current climate, this article explores how states and localities can resist the federal prohibition by legalizing undocumented work. We live in times of resistance, with “sanctuary cities” that refuse to cooperate with federal immigration enforcement. Seizing on this moment, state and local resistance can offer more immediate accountability for addressing the plight of undocumented workers while disrupting the ways in which the federal immigration framework defines the illegality of undocumented work. To start, this article reviews how the incongruence between the lived experiences of undocumented workers and the federal immigration framework creates an underclass of workers. Next, it develops a typology of state and local resistance measures that recognize, protect, or promote undocumented work and considers whether these measures can succeed given concerns about federalism and governmental retaliation.
This article concludes by discussing why state and local resistance is worthwhile. Beyond the palpable benefits of addressing exploitation, state and local resistance can help undocumented workers overcome exclusion by increasing their sense of belonging. Community members too benefit from the strengthening of workers’ rights and the contributions to the local economy. At the same time, such resistance changes social norms and provides a powerful critique of the federal prohibition on undocumented work. Ultimately, this article is the first to examine how state and local resistance focused on undocumented work can lend itself to building social movements that promote immigrant inclusion by redefining the legality of undocumented work.
Tuesday, September 26, 2017
Have you heard of "H4 Dreamers" ? The concept was new to me, but interest groups like Skilled Immigrants in America have been tweeting about #H4Dreamers (and creating memes like the one above) for the past few weeks.
Laura D. Francis over at Bloomberg BNA has the details.
The issue is children of H1B workers, particularly workers from India. These children came to the U.S. "accompanying" their parents on an H4 status. But when they turn 21, they are no longer eligible to retain their H4 visas. They need their own status. And right now, that pretty much means seeking an F student visa and hoping to secure their own H1B upon graduation.
Of course, this wasn't what their H1B parents had hoped for. They'd hoped to secure green cards before their children were longer considered, for purposes of immigration law, children.
But green cards for Indian citizens are backlogged. And many H4 children will age out before their parents can obtain LPR status.
Like DREAMers, children of H1B workers grew up in the United States and never envisioned returning to their countries of origin. Their parents argue that H4 Dreamers should perhaps be viewed with even more sympathy than traditional DREAMers since they are lawful immigrants. There is, however, no currently proposed legislation to help this population.