Wednesday, February 28, 2018

Why deporting the ‘Dreamers’ is immoral

Immigration Article of the Day: Limiting the National Right to Exclude by Katrina Wyman


Limiting the National Right to Exclude by Katrina Wyman, University of Miami Law Review, Forthcoming


This essay argues that the robust right to exclude that nation states currently enjoy will be harder to justify in an era of climate change. Similar to landowners, nation states have virtual monopolies over portions of the earth. However, the right of landowners to control who enters their land is considerably more constrained than the right of nation states to control who enters their territory. Climate change will alter the areas of the earth suitable for human habitation and the broad right of nation states to exclude will be more difficult to justify in this new environment.


February 28, 2018 in Current Affairs | Permalink | Comments (0)

Human Rights Watch Report on Freezing Cells for Detained Migrants

Footage of women and children in immigration holding cells in Douglas, Arizona, September 2015, made public in 2016 after a group of migrants challenged detention conditions in the cells.   US Customs and Border Protection via American Immigration Council

United States border agents routinely hold families, including infants, in freezing cells when it takes them into custody at or near the border, Human Rights Watch said in a report released today.

The 44-page report, “In the Freezer: Abusive Conditions for Women and Children in US Immigration Holding Cells,” is based on interviews with 110 women and children. Human Rights Watch found that US Customs and Border Protection (CBP) agents routinely separate adult men and teenage boys from other family members. The practice runs counter to agency policy that families should be kept together whenever possible while in holding cells. After the initial period of detention in the freezing holding cells, sometimes for days, men usually remain separated from the rest of their family upon transfer to longer-term detention facilities.

“The persistent practices in immigration holding cells are degrading and punitive,” said Michael Garcia Bochenek, senior children’s rights counsel at Human Rights Watch. “Immigration authorities should keep families together and shouldn’t detain children overnight in holding cells.”

Detention and family separation have serious adverse consequences for mental well-being, especially for those who have already suffered trauma. Most of the women and children Human Rights Watch interviewed said they had fled their home countries after they were targeted for violence or other persecution.

Time in the holding cells was “the most difficult and traumatic” period of detention for women and children apprehended by US immigration authorities, a team of psychologists found in a 2015 study.

All immigration detainees have the right to be treated with dignity and humanity, and children are entitled to specific safeguards. Human Rights Watch found that conditions in immigration holding cells are in breach of international standards and CBP policies, and likely violate the terms of federal court orders.

Women and children told Human Rights Watch they spent up to three nights in cells with uncomfortably low temperatures, sleeping on the floor or concrete benches with only a foil blanket to protect them. In many cases, border agents required them to remove and discard sweaters or other layers of clothing, purportedly for security reasons, before they entered the cells.

Holding cells often do not provide hand soap to women and children, meaning they cannot hygienically clean their hands before and after eating, feeding infants, using the toilet, or changing diapers. Most of the women and children held in these cells said they were not allowed to shower during their time in holding cells.

One woman interviewed said she and her-five-year-old son were soaked after wading across the river. “We were sitting on the cement floor, completely freezing,” she said. “In the end, I had to sleep seated upright, with my son in my lap, because I couldn’t let him lay down on the cement floor.” CBP officials have consistently denied that holding cells are cold, even as the women and children held there have regularly reported that the temperatures in these facilities are much colder than in other immigration detention centers. In October 2017, for example, the Women’s Refugee Commission reported that nearly all of about 150 women interviewed in 2016 and 2017 said they had been held “for days in freezing cold CBP facilities.”

CBP officials did not answer Human Rights Watch’s specific questions about conditions in holding cells, citing ongoing litigation. They instead pointed to agency policies and stated that CBP follows all applicable laws and policies, including court orders.

In court filings, the agency has attempted to justify its failure to provide sleeping mats to women and their children by saying that the cells are not designed for holding people overnight. Yet nearly all the women and children Human Rights Watch interviewed spent at least one night in a holding cell. Other studies, including one by the US Government Accountability Office (GAO), have consistently found that two-thirds of migrants in holding cells remain there for at least one night, and tens of thousands of migrants spend 72 hours or more in holding cells each year.

A preliminary court order, limited to holding cells in Arizona and upheld on appeal, says that all migrants held for more than 12 hours must be given sleeping mats and the opportunity to wash. In another court case that covers holding cells in Texas’ Rio Grande Valley, a federal judge ordered CBP to remedy abusive conditions for children placed in holding cells.

CBP should ensure that all immigration holding cells provide hygienic conditions, including access to soap, showers, toothbrushes, and toothpaste, for all detained migrants, Human Rights Watch said. The agency should set temperatures in cells that are comfortable for detained people.

Holding cells should be used only for very short periods. People should not be held there overnight unless it is unavoidable, and children should never be held there overnight. People held overnight should be provided with sleeping mats and blankets.

US immigration authorities should also avoid splitting up families when they are apprehended. Instead, the US Department of Homeland Security (DHS) should identify and provide alternatives that keep families together.

“Conditions in immigration holding cells are not only needlessly cruel but also demonstrably harmful, particularly for people who have suffered persecution,” Bochenek said. “The United States should not persist in practices that traumatize children and their families.”



February 28, 2018 in Current Affairs | Permalink | Comments (0)

Key facts about U.S. immigration policies and proposed changes

Jennings v. Rodriguez Opinion analysis: Court tees up issue of the constitutionality of indefinite immigration detention for the 9th Circuit

Here is my summary analysis of the Supreme Court's long-awaited decision in Jennings v. Rodriguez on SCOTUSBlog.  Justice Alito's opinion for the majority is unlikely to mark the end of the litigation:

"In some respects, the court’s decision in Jennings v. Rodriguez takes us back to the drawing board. After sparring among themselves over two terms, the justices remanded the case to the 9th Circuit to decide a meaty constitutional question — whether indefinite detention of noncitizens without a bond hearing as authorized by the immigration statute is constitutional."


February 28, 2018 in Current Affairs | Permalink | Comments (0)

Tuesday, February 27, 2018

Jennings v. Rodriguez Twitter Threads to Read

As readers digest the implications of the Supreme Court's decision in Jennings v. Rodriguez, here are some insightful Twitter threads on the subject:

Anil Kalhan (@kalhan):

Adam Cox (@adambcox):

Cecillia Wang (@wangcecillia) :

Also, here is some early NPR coverage on the case.



February 27, 2018 | Permalink | Comments (1)

Supreme Court Reverses Ninth Circuit in Immigrant Detention Case


In a 5-3 decision by Justice Alito, the Supreme Court reversed and remanded the decision of the Ninth Circuit in Jennings v. Rodriguez. It ruled that detained aliens do not have a right to periodic bond hearings during the course of their detention. Justice Breyer, joined by Justices Ginsburg and Sotomayor, wrote a lengthy dissent.  Justice Kagan recused herself from the case.


February 27, 2018 in Current Affairs | Permalink | Comments (0)

Italian election dominated by immigration debate


The BBC reports on immigration in the Italian elections.  Standing opposite an arch commemorating Italy's liberation from fascism at the end of the World War Two, a group of men dressed in black are huddled beneath a gazebo. They're supporters of Casa Pound - a fringe political party that claims to be inspired by the poet Ezra Pound.


Massimo Trefiletti proudly proclaims himself and his party as fascists. The irony of standing opposite a monument to their defeat doesn't escape him. Mr Trefiletti says 25 April 1945 isn't a day of national pride but of loss. As for the future, he wants Italy to turn its back on the EU, close its borders and deport all the immigrants.

Casa Pound is supported by a tiny minority of Italians but its nationalist, anti-immigrant rhetoric is being echoed by other parties in the run-up to the country's general election on 4 March.

About 600,000 people have made the perilous journey across the Mediterranean and landed on Italian shores in the past four years. Now, Italian politicians of all stripes are competing to show they will be tough on these new and increasingly unwelcome arrivals.


February 27, 2018 in Current Affairs | Permalink | Comments (0)

Monday, February 26, 2018

Immprof 2018: Call for Papers & Commentators

Drexel University's Thomas R. Kline School of Law is located in Philadelphia, PA

2018 Immigration Law Scholars and Teachers Workshop at Drexel Law School, May 24-26, 2018

A major focus of the biennial Immigration Law Scholars and Teachers Workshop is the opportunity for immigration scholars to share scholarship in progress.  Opportunities will be available to receive feedback from colleagues on draft papers and on ideas in the formative stage during incubator sessions.

If you are interested in presenting a work-in-progress (WIP) or an incubator idea, or in serving as a commentator, please fill out this google form by Friday, March 23. 

(If you have trouble clicking on the link, you can also find the form here:

Your draft paper for a WIP session (50 pages maximum) or a brief description of your incubator idea (3 pages maximum) will be due by Friday, April 27.  You will receive further instructions about how to upload your paper to the password-protected conference website closer to the date.

After the committee receives submissions in response to this call for papers, the committee will assign commentator(s) for each work in progress based on shared scholarship interests.  The date and time for each work in progress session will be posted on the conference website in early May.

We hope to have room for all who express interest in presenting a work in progress.  If we face any constraints, we will give priority to junior scholars.

The members of the Works in Progress committee for the Workshop are:  Amanda Frost (American); Denise Gilman (Texas); and Jaya Ramji-Nogales (Temple).  If you have any questions, feel free to contact Amanda at

-KitJ on behalf of Amanda Frost

February 26, 2018 in Law Review Articles & Essays | Permalink | Comments (0)

Supreme Court Declines to Review DACA Injunction —For Now

The Supreme Court today declined to review the district court injunction of the rescission of the Deferred Action for Childhood Arrivals program by the Trump administration.  The order read as follows:

"DEPT. OF HOMELAND SEC., ET AL. V. REGENTS OF UNIV. OF CA, ET AL.   The petition for a writ of certiorari before judgment is denied without prejudice. It is assumed that the Court of Appeals will proceed expeditiously to decide this case."

Stay tuned for developments in the DACA saga. 

Amy Howe on SCOTUSBlog explains:

"the Justice Department appealed that decision to the 9th Circuit, but it also opted to take the dispute straight to the Supreme Court, without waiting for the 9th Circuit to rule — a procedure known as “cert before judgment.” The justices have rarely granted review in this scenario, and they opted not to do so today. In a brief two-sentence order, the court indicated that it was denying the government’s petition “without prejudice” – which means that the government would still have the option to file another petition later on, after the 9th Circuit rules on its appeal. The justices added a caution that may help to explain their decision to stay out of the case at this point, particularly when the federal government had not asked them to put the lower court’s ruling on hold while its appeals wind their way through the system: “It is assumed that the Court of Appeals will proceed expeditiously to decide this case.”"  (emphasis added).


February 26, 2018 in Current Affairs | Permalink | Comments (0)

A View from the Ground: Stories of Families Separated by the Presidential Proclamation


Penn State Law's Center for Immigrants’ Rights Clinic, along with a number of other organizations, released this list of stories of families separated by President Trump's travel ban:  

"Since the Proclamation went into full effect in December 2017, we have documented reports from individuals who have been denied a visa under the Presidential Proclamation but without consideration under the waiver scheme; denied a visa and a waiver without explanation; and/or denied a visa with instructions that a waiver will be considered. In many cases, denials were made without consideration for the individual’s family ties or medical needs in the United States. The human impact is significant, keeping families separated and individuals stranded despite established and compelling circumstances. Below are several stories to highlight the impact."


February 26, 2018 in Current Affairs | Permalink | Comments (0)

Sunday, February 25, 2018

Mayor Warns of Upcoming ICE Raids


Oakland (California) Mayor Libby Schaaf warned of possible ICE raids in the Bay Area City  Emphasizing her obligation of ensuring the safety of all residents, the Mayor attempted to ensure that all city residents knew their rights in the event that ICE engage in enforcement operations  Click here for details. 

UPDATE (2/27):  Mayor Schaaf's statement provoked controversy, with some saying that it heightened fears of raids in immigrant communities. 



February 25, 2018 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Immigration Enforcement Under Trump: A Loose Cannon by Shoba Sivaprasad Wadhia

Harvard-hlr-logo Shoba_wadhia_faculty2

Immigration Enforcement Under Trump: A Loose Cannon by Shoba Sivaprasad Wadhia

The Trump administration’s immigration enforcement policy is a loose cannon, targeting noncitizens who have long been protected under prosecutorial discretion. The President has unleashed a policy that routinely targets anyone who is undocumented, not just “bad hombres.” This post examines the discretion used after a person has received a deportation (“removal”) order and how the landscape has changed under the Trump administration.


February 25, 2018 in Current Affairs | Permalink | Comments (0)

US Deportations Targeting More People With No Crime Records

Elliot Spagat for the Associated Press (as well as other news outlets) report that people arrested by immigration officers increasingly have no criminal backgrounds, according to figures released last week by the Trump administration, reflecting the President's commitment to immigration enforcement.  I have not seen the statistics and am trying to track them down.

U.S. Immigration and Customs Enforcement said 65 percent of arrests from October to December were criminals, compared to 82 percent during the final full three months of the Obama administration.

Looked at another way, arrests of criminals jumped 14 percent to 25,626 from 22,484, but arrests of non-criminals nearly tripled to 13,548 from 4,918.

Overall, there were 39,174 deportation arrests from October to December, up from 27,402 during the final full three months of the Obama administration. The 43 percent surge is consistent with trends since Trump took office and dramatically increased enforcement.

February 25, 2018 in Current Affairs | Permalink | Comments (0)

After Talking with President Trump, Mexican President Cancels Planned Visit to White House -- Border Wall the Issue

Philip Rucker, Joshua Partlow and Nick Miroff in the Washington Post report that tentative plans for Mexican President Enrique Peña Nieto to make his first visit to the White House to meet with President Trump were scuttled this week after a testy call between the two leaders ended in an impasse over Trump’s promised border wall.

Peña Nieto was eyeing an official trip to Washington this month or in March, but both countries agreed to call off the plan after Trump would not agree to publicly affirm Mexico’s position that it would not fund construction of a border wall that the Mexican people widely consider offensive.

Speaking by phone on Tuesday, Peña Nieto and Trump devoted a considerable portion of their roughly 50 minute conversation to the wall, and neither man would compromise his position. One Mexican official said Trump “lost his temper.” But U.S. officials described him instead as being frustrated and exasperated, saying Trump believed it was unreasonable for Peña Nieto to expect him to back off his crowd-pleasing campaign promise of forcing Mexico to pay for the wall.


February 25, 2018 in Current Affairs | Permalink | Comments (2)

Saturday, February 24, 2018

Lewis and Clark Law School Symposium: The Immigration Nexus: Law, Politics, and Constitutional Identity


Lewis and Clark Law School Symposium: The Immigration Nexus: Law, Politics, and Constitutional Identity, March 9, 2018

Here is the program.   The symposium will feature cutting-edge scholarship on contemporary immigration issues, particularly in the wake of President Trump’s attempts to implement various immigration policies.

1:00 p.m. PANEL ONE (Moderator: Associate Dean John Parry)


Kit Johnson


Earl Maltz


Howard Wasserman


Amanda Frost

3:15 p.m. PANEL TWO (Moderator: Professor Juliet Stumpf)


Susan Dussault


Andrew Hammond


Kari Hong


February 24, 2018 in Current Affairs | Permalink | Comments (0)

President Trump reads 'The Snake,' repurposed as anti-immigrant poem


CNN reports that President Donald Trump yesterday at the 2018 Conservative Political Action conference read the lyrics of an anti-immigrant song titled "The Snake," reverting to a campaign staple that he has used to criticize U.S. immigration policy. The song, written by the late singer-songwriter Oscar Brown Jr., tells the story of a woman who takes in a frozen snake she finds on her way to work. After the snake is nursed back to health, it bites the women and kills her. Trump uses the song as an allegory, suggesting that immigrants who come to the United States in search of a better life and help may end up hurting the country in the end.

The story was regularly read at events in the 2016 campaign to raucous applause as Trump ran on a hardline immigration platform. Use of the song by Trump has morphed over time. Initially, Trump read the story as an attack against accepting Syrian refugees, who he claimed included terrorists. Trump later began using the story to attack all immigrants.


February 24, 2018 in Current Affairs | Permalink | Comments (0)

Friday, February 23, 2018

The March 5 DACA Deadline, Explained

Dara Lind at Vox has a helpful, layperson's explanation on the meaning of the March 5, 2018 "deadline" associated with DACA, including how the unwinding of DACA really began on September 5, 2017 (the date the Trump Administration announced its plans to end DACA), and the implications of recent federal court decisions allowing DACA renewals to continue for the time being.


February 23, 2018 | Permalink | Comments (0)

From the Bookshelves: Illegally Staying in the EU An Analysis of Illegality in EU Migration Law by Benedita Menezes Queiroz


Illegally Staying in the EU An Analysis of Illegality in EU Migration Law by Benedita Menezes Queiroz

Principally, this book comprises a conceptual analysis of the illegality of a third-country national's stay by examining the boundaries of the overarching concept of illegality at the EU level. Having found that the holistic conceptualisation of illegality, constructed through a combination of sources (both EU and national law) falls short of adequacy, the book moves on to consider situations that fall outside the traditional binary of legal and illegal under EU law. The cases of unlawfully staying EU citizens and of non-removable illegally staying third-country nationals are examples of groups of migrants who are categorised as atypical. By looking at these two examples the book reveals not only the fragmentation of legal statuses in EU migration law but also the more general ill-fitting and unsatisfactory categorisation of migrants.

The potential conflation of illegality with criminality as a result of the way EU databases regulate the legal regime of illegality of a migrant's stay is the first trend identified by the book. Subsequently, the book considers the functions of accessing legality (both instrumental and corrective). In doing so it draws out another trend evident in the EU illegality regime: a two-tier regime which discriminates on the basis of wealth and the instrumentalisation of access to legality by Member States for mostly their own purposes.

Finally, the book proposes a corrective rationale for the regulation of illegality through access to legality and provides a number of normative suggestions as a way of remedying current deficiencies that arise out of the present supranational framing of illegality.

Table Of Contents

  1. 'What Part of Illegality Don't You Understand?': Illegality in EU Migration Law
    I. Introduction
    II. Conceptual Analysis
    III. Legal Sources
    IV. EU Institutional Framework
    V. Conclusion
    2. The Case of Unlawfully-staying EU Citizens
    I. Introduction
    II. Illegally-staying Third-country Nationals and Unlawfully-staying EU Citizens
    III. Conclusion
    3. Non-removable Migrants in the EU
    I. Introduction
    II. The Definition and the Causes of the Non-removability of Irregular Migrants in EU Law
    III. The Atypical Status of Non-removable Irregular Migrants
    IV. The Remedies for Non-removability: National and European Perspectives
    V. Conclusion
    4. The Potential Effects of Information Technology Vis-à-Vis Illegality
    I. Introduction
    II. EU Immigration Databases Under Construction
    III. The Erosion of the Purpose Limitation Principle
    IV. Enhanced Accessibility versus Proportionality and Necessity Concerns
    V. From Immigration to General Intelligence Databases?
    VI. What's Next for Immigration Information Systems? A Brand New World of Transnational Surveillance of Illegality or the Same Old Story?
    VII. The Era of Potential Digital Criminalisation of Illegally-staying Third-country Nationals
    VIII. Conclusion
    5. Access to Legality in the EU: An Instrumental or Corrective Mechanism?
    I. Introduction
    II. Access to Legality in EU Migration Law: The Definition, Instrumental Use and Corrective Potential
    III. Part I: The Instrumentalisation of the Access to Legality
    IV. Part II: The Potential Corrective Role of Access to Legality at the Supranational Level
    V. The Corrective Function of Regulating Legality from an EU Law Perspective
    VI. Conclusion


February 23, 2018 in Books, Current Affairs | Permalink | Comments (0)

The US Undocumented Population Fell Sharply During the Obama Era: Estimates for 2016

The Center for Migration Studies (CMS) released estimates of the US undocumented population for 2016 by country of origin and state of residence. Previous CMS reports have documented the long-term change in the US undocumented population from rapid growth in the 1990s, to single-digit rates of growth in 2000 to 2010, to declines in the population from most countries and in most US states since 2010.   Major findings include:

  • The undocumented population fell below 10.8 million in 2016, the lowest level since 2003.
  • The number of US undocumented residents from Mexico fell by almost one million between 2010 and 2016.
  • Average annual undocumented population growth dropped from 15 percent in the 1990s to about 4 percent in 2000 to 2010. Since 2010, the undocumented population from most countries has declined.
  • In the 2010 to 2016 period, five major sending countries had large population declines: Poland (-47 percent); Peru (-40 percent); Ecuador (-31 percent); Colombia (-29 percent); and South Korea (-27 percent).   
  • From 2010 to 2016, six of the 10 states with the largest undocumented populations had declines of more than 10 percent: Illinois (-20 percent); North Carolina (-16 percent); California (-13 percent); New York (-13 percent); Arizona (-12 percent); and Georgia (-11 percent). The only large state to gain was Texas (+2 percent).

This shift occurred over a multi-year period that included Congress’ repeated consideration of the DREAM Act and reform bills that included legalization programs. It also occurred during the establishment and implementation of the Deferred Action for Childhood Arrivals (DACA) program. 

“CMS’s findings provide further evidence of the historic shift in the undocumented population in the United States,” said Donald Kerwin, CMS’s Executive Director. “This shift undercuts the claimed need for massive expenditures on a border-wide wall. It shows that the undocumented population has been decreasing for some time, and that the administration’s narrative of an out-of-control border is exaggerated, if not simply wrong.”    The report, titled “The US Undocumented Population Fell Sharply During the Obama Era: Estimates for 2016,” is authored by CMS's Senior Fellow Robert Warren. It can be found here.  For more information, please contact Rachel Reyes, CMS’s Director of Communications, at or (212) 337-3080 x 7012.


February 23, 2018 in Current Affairs | Permalink | Comments (1)