Tuesday, June 26, 2018
The Section on Immigration Law and Section on Civil Rights of the Association of American Law Schools invites papers for presentation at their cosponsored session during the 2019 AALS Annual Meeting in New Orleans, LA, which will take place January 2-6, 2019. This session has been scheduled for Sunday, January 6, 2019, at 10:30am. Please note that individuals presenting at the program are responsible for their own Annual Meeting registration fee and travel expenses.
The session theme is “Civil Rights, Liberty, and Immigration Control.” Recent events have highlighted the frequent conflict between individual liberty interests and the government’s migration control policies. The executive order banning the entry of Muslims into the United States has impinged on religious liberty, freedom to travel and the liberty interest in family. General heightened border security has undercut citizens’ liberty interest in family—particularly when the family members of U.S. citizens have been barred on nebulous or unspecified "security" rationales. Immigration detention, now greatly expanded, curtails bodily liberty. The recent detention of and denial of abortion access to noncitizen minors in government custody implicate overlapping liberty interests.
We seek papers that explore the doctrinal, practical and theoretical issues that arise at the crossroads of liberty and migration control. Papers might, for example, explore evolving constitutional conceptions of liberty, evaluate the exercise of plenary powers as it affects individuals’ liberty interests, or otherwise critically analyze how courts are assessing and weighing individual liberty interests in cases involving migration control.
Submission Guidelines: The deadline for submissions is August 15, 2018. We welcome submissions at any stage of development, although preference may be given to more fully developed papers over abstracts and paper proposals. Priority also will be given to individuals who have not recently presented a paper at the AALS Annual Meeting. Decisions will be made by mid-September 2018.
Please email submissions in Microsoft Word format to AALS2019ImmigrationLaw@kalhan.com (Subject: AALS 2019: Civil Rights, Liberty, and Immigration Control). In your email, please indicate whether you have previously presented your work at the AALS Annual Meeting.
Inquiries: Please direct any questions or inquiries to Kristina Campbell (email@example.com) and Jennifer Chacón (firstname.lastname@example.org).
PRRI is releasing a new national survey conducted last week on President Trump’s immigration policies and views on America’s moral standing following news of refugee families being separated at the U.S. southern border. The new poll out today finds that fewer than half (40%) of the public believes that the U.S. sets a good moral example for the world. Nearly six in ten (58%) believe we do not. Two-thirds (67%) of Republicans and only 20% of Democrats believe the U.S. sets a good moral example for the rest of the world.
The survey also explores Americans’ views on proposed immigration policies and who can be trusted to manage immigration as Congress continues to debate immigration legislation this month. You can view additional findings and analysis here: https://www.prri.org/spotlight/america-as-a-moral-example-to-the-world/
The survey also found that:
Americans are divided over who they trust to handle the immigration issue:
- Thirty-eight percent of the public say they most trust the Democrats in Congress to deal with immigration while a nearly equal number say they trust the Republicans in Congress (14%) or the Trump administration (21%). Notably, more than one-quarter of the public say they do not trust anyone to handle the immigration issue (17%) or express no opinion (10%).
- Democrats overwhelmingly trust congressional Democrats on the issue of immigration (77%), but Republicans are much more likely to trust the Trump administration (47%) than the congressional GOP (30%). Fourteen percent of Republicans and 11% of Democrats say they do not trust anyone to deal with the immigration issue. Independents are closely aligned with the views of the public overall.
America as a Refuge vs. Self-Deportation:
- Americans largely agree that the U.S. should provide refuge and protection for people who come to the U.S. when they are facing serious danger in their home country. Three-quarters (75%) of the public affirm this statement while roughly one in four (23%) reject it. Views have remained relatively stable since 2014 when 71% of the public agreed that the U.S. Should offer refuge and protection to immigrants facing danger in their home countries.
- The public is generally opposed to the notion of self-deportation, and believe that the best way to solve the country’s illegal immigration problem is to make conditions so difficult that immigrants return to their home country on their own. Only 27% of Americans agree with this idea while two-thirds (67%) reject it.
Americans are also largely opposed to passing a law that would prevent refugees from coming to the U.S.
- Only about one in three (31%) Americans say they favor such a policy while roughly six in ten (59%) are opposed to it. Notably, 10% of Americans do not offer an opinion on this issue.
- The issue reveals stark partisan differences. A majority (52%) of Republicans favor a policy that would prevent refugees from entering the U.S. Thirty-six percent of Republicans oppose it, and another 11% offer no opinion on the matter. Roughly three-quarters (76%) of Democrats and more than six in ten (62%) independents register opposition to this policy.
- With the exception of white evangelical Protestants, most religious groups oppose laws that would prohibit refugees from coming to the U.S. A majority of white mainline Protestants (55%), Catholics (56%), non-white Protestants (63%) and religiously unaffiliated (69%) Americans oppose a law that would prevent refugees from entering the U.S. White evangelical Protestants are divided with roughly as many in support (44%) as opposition (44%).
The survey also examines views on: building a wall along the U.S. border with Mexico; requiring police to check the immigration status of a person they have stopped or detained if they suspect the person of being in the country illegally; and support for a immigration border policy that separates children from their parents and charges parents as criminals when they enter the country without permission.
In a 5-4 decision, the Supreme Court, in an opinion by Chief Justice Roberts, upheld the travel ban. The Court found that "The Proclamation is squarely within the scope of Presidential authority under the" Immigration and Nationality Act.
The Chief's opinion was joined by Justices Kennedy, Thomas, Alito, and Gorsuch. Justices Kennedy and Thomas filed concurring opinions. Justice Breyer filed a dissenting opinion, in which Justice Kagan joined. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined.
The decision no doubt will be declared a victory by the Trump administration and criticized by opponents of the travel ban. Stay tuned for analysis.
UPDATE: Here is Amy Howe's analysis on SCOTUSBlog. SCOTUSBlog is running a symposium on the decision. Here is the contribution of Shoba Wadhia. Peter Margulies on Lawfare criticizes the Court's statutory analysis. His contribution begins as follows:
Monday, June 25, 2018
The nation’s attention is currently on the southern border, where the Trump administration’s “zero tolerance” policy has caused a crisis over separated immigrant children. Forgotten in all this is that an estimated 11 million undocumented immigrants continue to live in the United States – and most of them work. In a piece on The Conversation, Mary Jo Dudley, director of the Cornell Farmworker Program, explains just how vital unauthorized workers are to key U.S. industries, particularly agriculture.
Here is one for Trekkies everywhere. On CNN, actor George Takei slammed the Trump administration's practice of separating families at the US-Mexico border, recalling his family's experience in internment camps as a Japanese-American during World War II. Takei writes about the issue in Foreign Policy magazine.
The Supreme Court always waits to the end of the Term to release opinions in the blockbuster cases that divided the Court. Today, at 10 a.m. EST, which marks the beginning of the last week of the Term, the Court will be releasing decisions. Watch SCOTUSblog for the latest.
The Court already has decided several immigration cases (Sessions v. Dimaya; Jennings v. Rodriguez; Pereira v. Sessions). But one major case remains that could affect the way that the Supreme Court reviews the constitutionality of immigration laws. The Court will decide the lawfulness of the third iteration of the "travel" or "Muslim ban" barring admission into the United States from a group predominantly of Muslim-majority nations.
Trump v. Hawaii challenged President Donald Trump’s September 2017 executive order, which barred travel to the United States by citizens of eight countries: Libya, Iran, Somalia, Syria, Yemen, North Korea, Venezuela and Chad. Like the two similar orders that preceded it, the September 2017 order drew immediate legal challenges. The state of Hawaii levels two main challenges to the travel ban: (1) Although the president has broad power over immigration, the order goes too far; and (2) the order violates the Constitution’s establishment clause, which bars the government from (among other things) favoring one religion over another. In making its arguments, the state relies on the two earlier versions of the order, which targeted only Muslim countries, as well as comments and tweets made by President Trump calling for a ban on the entry of Muslims into the United States.
The issues before the Court:
(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable;
(2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad;
(3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and
(4) whether the executive order violates the establishment clause of the Constitution.
And the beat goes on. Yesterday, President Trump tweeted a radical proposal for deporting undocumented immigrants. As CNN reports, he called for the United States to deport noncitizens without court proceedings.
We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order. Most children come without parents...— Donald J. Trump (@realDonaldTrump) June 24, 2018
Sunday, June 24, 2018
Immigration Article of the Day: Detaining Families: A Study of Asylum Adjudication in Family Detention by Ingrid Eagly, Steven Shafer & Jana Whalley
Detaining Families: A Study of Asylum Adjudication in Family Detention by Ingrid Eagly, Steven Shafer & Jana Whalley
The United States currently detains more families seeking asylum than any nation in the world, but little is known about how these families fare in the immigration court process. In this Article, we analyze government data from all immigration court cases initiated between 2001 and 2016 to provide the first empirical analysis of asylum adjudication in family detention. We find that families have been detained in remote locations, have faced language barriers in accessing the courts, and, despite valiant pro bono efforts to assist them, have routinely gone to court without legal representation. Only half of the family members who remained detained found counsel, fewer than 2% spoke English, and 93% had their hearings in detention adjudicated remotely over video conference, rather than in a traditional face-to-face courtroom setting.
In addition, the evidence we uncover documents the important, and underappreciated, role that immigration courts have played in limiting the over detention of migrant families by immigration authorities at the border. During the period studied, immigration judges reversed half of the negative credible fear decisions of asylum officers and systematically lowered the bond amount set by detention officers. We also find high compliance rates among family members who were released from detention: family members seeking asylum attended their immigration court hearings in 96% of cases since 2001. Finally, we document significant regional variation in case outcomes among family members who were released from detention, including whether family members obtained attorneys and won their asylum cases. These and other findings are meaningful to current policy debates regarding the role of immigration courts in maintaining due process in asylum proceedings and the appropriate use of detention to manage the migration of families fleeing violence in their home countries.
Saturday, June 23, 2018
Readers of the blog may find these words from William Faulkner and Gabriel García Marquez relevant to the current times. (Thanks to Michael Olivas and Ruben Rumbaut for the excerpts).
“I believe that man will not merely endure: he will prevail. He is immortal, not because he alone among creatures has an inexhaustible voice, but because he has a soul, a spirit capable of compassion and sacrifice and endurance. The poet's, the writer's, duty is to write about these things. It is his privilege to help a man endure by lifting his heart, by reminding him of the courage and honor and hope and pride and compassion and pity and sacrifice which have been the glory of his past. The poet's voice need not merely be the record of man, it can be one of the props, the pillars to help him endure and prevail.”
- William Faulkner, speech accepting 1950 Nobel Prize for Literature
“Antonio Pigafetta, a Florentine navigator who went with Magellan on the first voyage around the world, wrote, upon his passage through our southern lands of America, a strictly accurate account that nonetheless resembles a venture into fantasy. In it he recorded that he had seen hogs with navels on their haunches, clawless birds whose hens laid eggs on the backs of their mates, and others still, resembling tongueless pelicans, with beaks like spoons. He wrote of having seen a misbegotten creature with the head and ears of a mule, a camel's body, the legs of a deer and the whinny of a horse. He described how the first native encountered in Patagonia was confronted with a mirror, whereupon that impassioned giant lost his senses to the terror of his own image. This short and fascinating book, which even then contained the seeds of our present-day novels, is by no means the most staggering account of our reality in that age. The Chronicles of the Indies left us countless others…
“Our independence from Spanish domination did not put us beyond the reach of madness. General Antonio López de Santa Anna, three times dictator of Mexico, held a magnificent funeral for the right leg he had lost in the so-called Pastry War. General Gabriel García Moreno ruled Ecuador for sixteen years as an absolute monarch; at his wake, the corpse was seated on the presidential chair, decked out in full-dress uniform and a protective layer of medals. General Maximiliano Hernández Martínez, the theosophical despot of El Salvador who had thirty thousand peasants slaughtered in a savage massacre, invented a pendulum to detect poison in his food, and had streetlamps draped in red paper to defeat an epidemic of scarlet fever. The statue to General Francisco Morazán erected in the main square of Tegucigalpa is actually one of Marshal Ney, purchased at a Paris warehouse of second-hand sculptures.
“[Today, we are] struck, with ever greater force, by the unearthly tidings of Latin America, that boundless realm of haunted men and historic women, whose unending obstinacy blurs into legend. We have not had a moment's rest… There have been five wars and seventeen military coups… twenty million Latin American children died before the age of one—more than have been born in Europe since 1970… Because they tried to change this state of things, nearly two hundred thousand men and women have died throughout the continent… One million people have fled Chile, a country with a tradition of hospitality—that is, ten per cent of its population. Uruguay, a tiny nation of two and a half million inhabitants which considered itself the continent's most civilized country, has lost to exile one out of every five citizens. Since 1979, the civil war in El Salvador has produced almost one refugee every twenty minutes. The country that could be formed of all the exiles and forced emigrants of Latin America would have a population larger than that of Norway…
“Poets and beggars, musicians and prophets, warriors and scoundrels, all creatures of that unbridled reality, we have had to ask but little of imagination, for our crucial problem has been a lack of conventional means to render our lives believable. This, my friends, is the crux of our solitude…[T]he immeasurable violence and pain of our history are the result of age-old inequities and untold bitterness… [But] to oppression, plundering and abandonment, we respond with life…
"The end of man"…is now, for the first time since the beginning of humanity…a simple scientific possibility. Faced with this awesome reality that must have seemed a mere utopia through all of human time, we, the inventors of tales, who will believe anything, feel entitled to believe that it is not yet too late to engage in the creation of the opposite utopia. A new and sweeping utopia of life, where no one will be able to decide for others how they die, where love will prove true and happiness be possible, and where the races condemned to one hundred years of solitude will have, at last and forever, a second opportunity on earth.”
—Gabriel García Márquez (1982 Nobel Lecture, “The Solitude of Latin America”)
[El original en español:] http://nobelprize.org/nobel_prizes/literature/laureates/1982/marquez-lecture-sp.html
Immigration law professors have written a number of outstanding op-eds and blog posts in the past week related to family separation, immigration detention and the treatment of domestic violence and other asylum claims involving non-state actors. In case you missed them, and in no particular order:
- Kristin Collins, Serena Mayeri and Hiroshi Motomura, Los Angeles Times, “Family Relationships Have Long Been Part of the Bedrock of the U.S. Immigration Policy. Then Came Trump,” (“It has taken the Trump administration only 18 months to sabotage our immigration policy’s foundation of equal treatment and family integrity. It may well take years to undo the havoc. And the damage done to families at the border will take far, far longer to repair.”)
- Susan Martin, Fortune Magazine, “Trump’s Asylum Policy is Eerily Similar to America’s During the Holocaust.”
- Adam Cox and Ryan Goodman, Just Security Blog, “Detention of Migrant Families and ‘Deterrance’: Ethical Flaws and Empirical Doubts” (“…if the Trump policy actually worked to deter migration, the policy would end up punishing the most legitimate asylum seekers, the people fleeing the most horror.”)
- Jonathan Weinberg, Detroit News, “The Family Separation Bait-and-Switch.”
- Nickole Miller, Baltimore Sun, “Detaining Families Indefinitely is Unacceptable.”
- Shoba Sivaprasad Wadhia, American Constitution Society (ACS) Blog, “Unpacking President Trump’s Latest Executive Order,” (referencing Trump’s June 20, 2018 EO, Affording Congress the Opportunity Address Family Separation).
- César Cuauhtémoc García Hernández, The Guardian, “Cruel and Immoral: America Must Close the Doors of its Immigrant Prisons.”
- Dina Haynes, Gender Policy Report Blog, “Misogyny and Racism in Sessions’ Unraveling of Asylum Law.”
- Sabi Ardalan, The Conversation, “Why Domestic Violence and Anti-Gay Violence Qualify as Persecution in Asylum Law.”
- Natalie Nanasi, Dallas Morning News, “Attorney General’s Asylum Ruling Misunderstands Domestic Violence and Miscarries Justice.”
- Rachel Rosenbloom, London School of Economics US Centre Blog, “Separating Families at the Border Takes Harsh Immigration Enforcement Practices to a New Extreme.”
- Kari Hong:
- Take Care Blog, “That Bible Parable about the Plague of Tort Attorneys who Sued the Border Patrol,” (encouraging private attorneys to file private tort and federal actions claims in federal court against all government officials involved in separation of families at the border);
- On WBUR (Boston’s NPR), “Why America Needs More, Not Fewer, Asylum Seekers.”
Finally, check out Anil Kalhan’s viral Twitter thread on the June 20, 2018 family separation executive order.
After Abandoning Family Separation Policy, President Trump Seeks to Change Narrative -- Blame Immigrants for Crime
"After days of damaging news stories about an administration policy that separated immigrant families at the Southern border, President Trump tried to change the narrative Friday. He spoke up for grieving family members who have lost loved ones at the hands of people in the country illegally. Trump has frequently pointed to sympathetic crime victims to justify his get-tough policies at the Southern border. But experts say the president's rhetoric overstates the threat posed by immigrants, who tend to commit crime at lower rates than people who are born in the United States." (emphasis added).
Here are President Trump's comments at the event for the families of crime victims.
The Washington Post elaborates on the Trump strategy:
"Days after yielding to pressure to reverse his policy of separating migrant families at the southern border, President Trump returned Friday to the nativist rhetoric that animated his outsider presidential campaign, casting immigrants as threats to “our citizens.”
Seeking to counter the intense criticism of his border policies, Trump invited families of Americans killed by undocumented immigrants to tell their stories of being “permanently separated” from loved ones."
“These are the stories that Democrats and people that are weak on immigration, they don’t want to discuss, they don’t want to hear, they don’t want to see, they don’t want to talk about,” Trump said at the White House."
Cedella Roman, photo via heavy
Running. It can kill you.
As one French teenager recently learned, it can also land you in immigration detention.
Cedella Roman, 19, went for a beach-side jog in Canada - just south of White Rock, British Columbia. Somewhere along the way, she crossed into Blaine, Washington. A mistake apparently fairly easy to make since there are reportedly no posted signs warning of the international border.
Border Patrol spotted her unlawful entry and arrested Roman, who didn't have any documentation on her. (Who doesn't run with their passport in their sports bra? Isn't that standard practice?)
Roman ended up in detention for two weeks until finally being released back into Canada.
The Full Court Press: Far from a Retreat, the Trump Administration’s Border Policies Advance its Enforcement Aims
Photo courtesy of U.S. Customs and Border Protection
Sarah Pierce for the Migration Policy Institute reports that President Trump’s executive order temporarily ending the separation of families at the U.S.-Mexico border and indications that the administration may, for now, be shelving its plan to prosecute all adult illegal crossers have been welcomed by many anguished over the much-contested policies. Yet lost in the din is the deeper reality: The administration’s plan to detain all asylum seekers, including families, is now on its way to completion. The “catch-and-release” that Donald Trump has long railed against is, at least in part, effectively over for now, though the price tag in human and financial costs is a long way from being tallied in full.
Friday, June 22, 2018
Immigration Article of the Day: White Deaths Exceed Births in a Majority of U.S. States -- A Census data brief by the Applied Population Lab written by Rogelio Sáenz and Kenneth M. Johnson
In 2016, more non-Hispanic whites died than were born in twenty-six states; more than at any time in U.S. history. Some 179 million residents or roughly 56 percent of the U.S. population, lived in these 26 states In contrast, non-Hispanic white (hereafter referred to as white) deaths exceeded births in just four states in 2004 and seventeen as recently as 2014. White deaths also exceeded white births in the nation as a whole for the first time in U.S. history in 2016, according to data from the National Center for Health Statistics. When births fail to keep pace with deaths, a region is said to have a "natural decrease" in population, which can only be offset by migration gains. In seventeen of the twenty-six states with white natural decreases, the white population diminished overall between 2015 and 2016. Our analysis of the demographic factors that cause white natural decrease suggests that more states are likely to experience it in the future.
The growing incidence of this white natural decrease has important implications for the nation's demographic future. America is becoming more racially and ethnically diverse. Most scholarly research on diversity has focused on the influence that growing minority populations have played in fostering such diversity. For example, the substantial surplus of Latino births over deaths together with past immigration have contributed enormously to the growing diversity of the United States. But other demographic processes are also at work. These include the rising incidence of white natural decrease due to aging and below-replacement fertility among the 61 percent of the population who are white. As we shall see, the accelerating diversity of the U.S. population is a function of this white natural decrease as well as the growth of minority populations.
Thanks to Professor Michael Olivas for bringing this piece to my attention.
Here are some of my thoughts on NBC News online commentary on the Trump administration's move from family separation to family detention. The bottom line is that asylum seeks have due process and other legal rights, including the right to apply for asylum. Expect the administration's new policies to be challenged in the courts.
Thursday, June 21, 2018
The #OccupyICE movement is growing in cities across the country, prompted in large part by the family separation crisis. The Guardian has described how ICE's Portland Office was shut down on Wednesday. Check out #OccupyICEPdx, #OccupyICEChi, #OccupyICELA and #OccupyICENYC for more.