Thursday, June 21, 2018
Immigrants win again in the U.S. Supreme Court, this time in Pereira v. Sessions,
The Court reversed and remanded the court of appeals by an 8-1 vote. Justice Sotomayor wrote for the Court. Justice Kennedy filed a concurring opinion. Justice Alito dissented. The opinions offer interesting perspectives on the applicability of Chevron deference, a foundation of modern administrative law. Justice Sotomayor found the statutory text at issue unambiguous and thus Chevron was inapplicable. In a concurring opinion, Justice Kennedy expressed the view that the time was right to re-examine Chevron and its application by the lower courts. In dissent, Justice Alito accused the majority of ignoring Chevron.
The Court held that a notice sent to a nonpermanent resident to appear at a removal proceeding that fails to designate a specific time or place for that proceeding does not end the continuous residence period calculation necessary for possible cancellation of the individual’s removal. Jennifer M. Chacon called it correctly.
Stay tuned for a summary of the opinion from SCOTUSBlog.
UPDATE (6/23): Here is Jennifer Chacon's analysis of the opinion from SCOTUSBlog. She notes that the Court "eschews entirely the use of the statutory term `alien' in favor of `noncitizen,' a term that the court defines in footnote 1." Footnote 1 reads as follows: "The Court uses the term `noncitizen' throughout this opinion to refer to any person who is not a citizen or national of the United States. See 8 U. S. C. §1101(a)(3). "
Yesterday, President Donald Trump responded to the furor over his administration's policy of separating immigrant families. Showing that there were alternatives to the policy all along, the President issued an executive order ending the policy and embracing a policy of family detention. Family detention has been much criticized when it was employed by the Obama administration.
Section 1 of the executive order states:
"It is the policy of this Administration to rigorously enforce our immigration laws. Under our laws, the only legal way for an alien to enter this country is at a designated port of entry at an appropriate time. When an alien enters or attempts to enter the country anywhere else, that alien has committed at least the crime of improper entry and is subject to a fine or imprisonment under section 1325(a) of title 8, United States Code. This Administration will initiate proceedings to enforce this and other criminal provisions of the INA until and unless Congress directs otherwise. It is also the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources. It is unfortunate that Congress’s failure to act and court orders have put the Administration in the position of separating alien families to effectively enforce the law."
The order seeks to keep families in detention during the pendency of legal proceedings. This will require modification of the consent decree in Flores v. Meese (1997), which limits the detention of migrant children. Section 3(e) of the executive order states that
" The Attorney General shall promptly file a request with the U.S. District Court for the Central District of California to modify the Settlement Agreement in Flores v. Sessions, CV 85-4544 (“Flores settlement”), in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings."
Here are President Trump and Vice President Pence's remarks at the announcement of the executive order.
Here is a Trump administration Fact Sheet on the executive order.
Penn State's Center for Immigrants' Rights Clinic has released a factsheet on President Trump's executive order. It provides background information, answers to many questions the public might have regarding the policy, and links to additional resources.
Although the end of the family separation policy was widely supported, the adoption of a policy of potentially indefinite detention in President Trump's executive order has sparked widespread criticism.
Wednesday, June 20, 2018
ImmigrationProf previously reported on the Trump administration's signal that it would be considering a denaturalization campaign. Masha Gessen in The New Yorker writes in depth about the possibilities:
"Last week, it emerged that the U.S. Citizenship and Immigration Service (U.S.C.I.S.) had formed a task force in order to identify people who lied on their citizenship applications and to denaturalize them. Amid the overwhelming flow of reports of families being separated at the border and children being warehoused, this bit of bureaucratic news went largely unnoticed. But it adds an important piece to our understanding of how American politics and culture are changing."
CNN reports that, with chants of "shame" and "end family separation," protesters shouted at Department of Homeland Security Secretary Kirstjen Nielsen as she dined at a Mexican restaurant in Washington, DC.
A Texas nonprofit has received nearly half a billion dollars from the U.S. government this year to operate shelters for undocumented immigrant children who have been separated from their parents.
That's nearly half the money allocated so far this year for the federal unaccompanied alien children program, which is at the center of a raging debate over the Trump administration’s zero-tolerance policy for people unlawfully crossing the border.
The Austin-based nonprofit, Southwest Key Inc., has made $1.5 billion from the federal government in the last decade, according to U.S. Health and Human Services data.
Hat tip to Professor Cappy White.
Poor medical treatment contributed to more than half the deaths reported by US Immigration and Customs Enforcement (ICE) during a 16-month period, Human Rights Watch, the American Civil Liberties Union, Detention Watch Network, and National Immigrant Justice Center said in a report released yesterday.
Based on the analysis of independent medical experts, the 72-page report, “Code Red: The Fatal Consequences of Dangerously Substandard Medical Care in Immigration Detention,” examines the 15 “Detainee Death Reviews” ICE released from December 2015 through April 2017. ICE has yet to publish reviews for one other death in that period. Eight of the 15 public death reviews show that inadequate medical care contributed or led to the person’s death. The physicians conducting the analysis also found evidence of substandard medical practices in all but one of the remaining reviews.
“ICE has proven unable or unwilling to provide adequately for the health and safety of the people it detains,” said Clara Long, a senior US researcher at Human Rights Watch. “The Trump administration’s efforts to drastically expand the already-bloated immigration detention system will only put more people at risk.”
12 people died in immigration detention in fiscal year 2017, more than any year since 2009. Since March 2010, 74 people have died in immigration detention, but ICE has released death reviews in full or in part in only 52 of the cases.
Based on the death reviews, the groups prepared timelines of the symptoms shown by people who died in detention and the treatment they received from medical staff, along with medical experts’ commentary on the care documented by ICE and its deviations from common medical practice. The deaths detailed in the report include:
Moises Tino-Lopez, 23, had two seizures within nine days, each observed by staff and reported to the nurses on duty in the Hall County Correctional Center in Nebraska. He was not evaluated by a physician or sent to the hospital after the first seizure. During his second seizure, staff moved him to a mattress in a new cell, but he was not evaluated by a medical practitioner. About four hours after that seizure, he was found to be unresponsive, with his lips turning blue. He was sent to the hospital but never regained consciousness and died on September 19, 2016.
Rafael Barcenas-Padilla, 51, had been ill with cold symptoms for six days in the Otero County Processing Center in New Mexico when his fever reached 104, and nurses recorded dangerously low levels of oxygen saturation in his blood. A doctor, consulted by phone, prescribed a medication for upper respiratory infections. The ICE detention center didn’t have the nebulizer needed to administer one of the medicines, so he did not receive it, and he showed dangerously low oxygen readings that should have prompted his hospitalization. Three days later, he was sent to the hospital, where he died from bronchopneumonia on April 7, 2016.
Jose Azurdia, 54, became ill and started vomiting at the Adelanto Detention Facility in California. A guard told a nurse about Azurdia’s condition, but she said that “she did not want to see Azurdia because she did not want to get sick.” Within minutes, his arm was numb, he was having difficulty breathing, and he had pain in his shoulder and neck – all symptoms of a heart attack. Due to additional delays by the medical staff, two hours passed before he was sent to the hospital, with his heart by then too damaged to respond to treatment. He died in the hospital four days later, on December 23, 2015.
“Immigrant detention centers are dangerous places where lives are at risk and people are dying,” said Silky Shah, executive director of Detention Watch Network, a national coalition that exposes the injustices of the US’ immigration detention and deportation system. “The death toll amassed by ICE is unacceptable and has proven that they cannot be trusted to care for immigrants in their custody.”
In fiscal year 2017, ICE held a daily average of nearly 40,500 people, an increase of nearly 500 percent since 1994. The Trump administration has asked Congress to allocate $2.8 billion for fiscal year 2019 to lock up a daily average of 52,000 immigrants in immigration detention facilities, a record number that would represent a 30 percent expansion from fiscal year 2017.
“To the extent that Congress continues to fund this system, they are complicit in its abuses,” said Heidi Altman, policy director at the National Immigrant Justice Center, a nongovernmental group dedicated to ensuring human rights protections and access to justice for all immigrants, refugees, and asylum seekers. “Congress should immediately act to decrease rather than expand detention and demand robust health, safety, and human rights standards in immigration detention.”
The new report is an update of a 2017 Human Rights Watch report that examined deaths in detention between 2012 and 2015, as well as a 2016 report by the American Civil Liberties Union, the Detention Watch Network, and the National Immigrant Justice Center that examined deaths in detention between 2010 and 2012.
The medical experts who analyzed the death reviews for the groups include Dr. Marc Stern, the former health services director for the Washington State Department of Corrections; Dr. Robert Cohen, the former director of Montefiore Rikers Island Health Services; and Dr. Palav Babaria, the chief administrative officer of Ambulatory Services at Alameda Health System in Oakland, California, and assistant clinical professor in Internal Medicine at the University of California, San Francisco.
Six of the new deaths examined occurred at facilities operated by the following private companies under contract with ICE: CoreCivic, Emerald Correctional Management, the GEO Group, and the Management and Training Corporation (MTC).
On The Conversation, I offer thoughts on the alternatives to family separation of migrant families available to President Trump. None of them require congressional action. My concluding paragraph:
"Previous administrations have responded to similar situations at the U.S.-Mexico border, but none have resorted to the separation of families as a device to deter migration from Central America. The president has said that Congress should fix it. But the president has the power to do that himself."
Tuesday, June 19, 2018
Statement from University of California President (and former Secretary of the U.S. Department of Homeland Security) Janet Napolitano
University of California President (and former Secretary of the U.S. Department of Homeland Security) Janet Napolitano issued the following statement today:
The proposals under consideration in Congress fall far short of a comprehensive solution to our broken immigration system and most important, are contrary to our nation’s values. The growing humanitarian crisis on our southern border, where children are forcibly separated from their parents, and the hundreds of thousands of DACA recipients who are being used as pawns in a political debate to build a border wall, are further indication of the urgent need for a real conversation around immigration reform. Our nation of immigrants is made stronger by its diversity. Congress and the administration must come together to pass legislation that reflects the values of our country, ensures the safety of our borders and provides a resolution for those brought to the United States as children and only know this country as home. It is imperative that Congress pass, and the president sign into law, legislation that protects our nation’s DACA recipients and provides them a path to citizenship.
President Napolitano was Secretary of the Department of Homeland Security in 2012 when the Deferred Action for Childhood Arrivals (DACA) policy was announced. The University of California has challenged the Trump administration's attempt to rescind DACA.
The controversy over the Trump administration's family separation policy. And there is no end in sight.
Video released by U.S. Customs and Border Protection shows the inside of a detention facility where children, reportedly separated from their parents, are being held. The video was shot by the government agency during a media tour of the facility last weekend.
Department of Homeland Security Secretary Kirstjen Nielsen vigorously defended the policy.
President Trump also aggressively defended the policy and blamed the Democrats for requiring the separation of families.
From the Bookshelves: Unequal Protection of the Law: The Rights of Citizens and Non-Citizens in Comparative Perspective by Richard T. Middleton, IV
Unequal Protection of the Law: The Rights of Citizens and Non-Citizens in Comparative Perspective by Richard T. Middleton, IV (West, 2018)
Unequal Protection of the Law: the Rights of Citizens and Non-Citizens in Comparative Perspective, explores the disparate allocation of legal rights of persons from a comparative, global perspective. In particular, the chapters herein canvass some of the timely, hot-topic issues relative to the legal rights of persons vis-à-vis the rights of citizens, migrants, refugees, and immigrants. In conducting a comparative analysis, the chapters elucidate how various migrant, refugee, and immigrant populations are disproportionately disadvantaged under national laws as compared to citizens within the same jurisdictions. The chapters also explicate how the disparate allocation of rights under national laws raises a number of human rights law violations. Towards this endeavor, the chapters discuss which particular international laws, treaties, declarations, and/or conventions are implicated as a result of the disparate and unequal treatment of migrants, refugees, and immigrants under law.
This book seeks to contribute important analyses and discussions on the current state of affairs relative to the rights of persons within the context of the rights of citizens vis-à-vis non-citizens (migrants, refugees and immigrants). In shedding light on how various migrant, immigrant and refugee populations are disproportionately disadvantaged under national laws as compared to citizens within the same jurisdictions, the chapters will raise general awareness of the differences in legal standing of people before the law. Students and scholars alike will gain exposure to timely international issues of civil rights and human rights – which can inform and guide the creation of norms relative to the rights all persons should enjoy as well as foment a greater awareness of the issue of legal rights within civil society. This book seeks to contribute scholarly discourse to the extant literature on citizenship and migration – and particularly – the interface of these two concepts. Lastly, this books aims to serve as a resource for students, scholars, practitioners, and even those with a casual interest, who seek a deeper understanding of some of the prevailing issues relative to the (dis)equal protection of laws throughout the globe.
Collectively, the chapters in this book weave together a mosaic of case-studies and narratives that poignantly illustrate the disparate allocation of legal rights of persons from a comparative, global perspective. The chapters also make a strong case for why we should care about the rights of persons; about why we should care about human rights.
Richard T. Middleton, IV, editor and contributor, is an Associate Professor of Political Science at the University of Missouri-St. Louis. Middleton is also an adjunct professor of law at St. Louis University School of Law where he teaches courses on immigration law and citizenship, social justice and human rights. He is also a licensed attorney who has practiced immigration law for many years.
Statement of Hilarie Bass, ABA president Re: Separating immigrant children from parents at the border
"The American Bar Association strongly opposes the government’s policy of forcibly separating minor children from their parents when families cross the southern border into the United States. This unnecessarily cruel action violates basic standards of human decency." (emphasis added).
Courtroom News Service reports on the latest judicial setback for Kansas Secretary of State and gubernatorial candidate, and immigration activist, Kris Kobach. A federal judge found a Kansas voter ID law unconstitutional yesterday and sanctioned, ordering him to take additional legal education classes.
In Fish v. Kobach, a group of voters, represented by the American Civil Liberties Union, sued Kobach for enforcing a state law that required Kansans to provide proof-of-citizenship documents in order to register to vote. Kobach, who is running for governor, served on President Donald Trump’s national voter fraud panel that dissolved earlier this year after states refused to hand over personal voter information.
In an 118-page ruling, U.S. District Court Judge Julie Robinson said the law was unconstitutional as it created an unnecessary burden on voters. During the March trial, Kobach had the burden to show that voting by noncitizens was widespread enough to justify the law. In a ruling made by the 10th U.S. Circuit Court of Appeals, Kobach was also required to show that the voter ID law did not violate the National Voting Rights Act.
Robinson also sanctioned Kobach for what she called a “well-documented history of avoiding this Court’s orders.” The federal judge condemned Kobach for failing to disclose documents and attempting to introduce evidence that she had already excluded. She ordered him to take six hours of legal education beyond what is required by his law license on trial procedure.
Russell Wheeler on the Brookings blog offers a big picture look at how the Trump administration family separation policy is part of a bigger immigration enforcement picture. "The Trump administration’s policy of separating children from parents who cross the southern border seeking asylum—and Attorney General Sessions’ limiting the grounds on which to grant asylum—draw attention again to the nation’s immigration courts, where many asylum claims get adjudicated. At the same time, the administration is making it more difficult for them to deal with non-citizens who claim that our complicated immigration laws allow them to remain here by imposing uniform case-completion quotas and deadlines on all immigration judges." For further analysis, click the link above.
Pro Publica has published this audio recording of children separated from their parents at the border. It's a hard listen. I can only just imagine playing the entire 7:47 in class and just having students absorb it.
As Pro Publica explains, the recording was made last week. It's of kids estimated to be between 4 and 10 who had been detained less than 24 hours, "so their distress at having been separated from their parents was still raw. Consulate officials tried to comfort them with snacks and toys. But the children were inconsolable."
The provenance of the recording is secret. An unidentified individual "devastated" by the scene recorded the sounds, gave the audio to civil rights attorney Jennifer Harbury, who in turn provided it to ProPublica.
This one was penned by Rob Rogers, formerly of The Pittsburgh Post Gazette.
Unlike some of the gotcha headlines floating around on twitter, Rogers wasn't fired because of this particular editorial cartoon. But, as the NYT reports, many of Rogers' cartoons had been rejected in the months before he was ultimately fired by the paper and seemingly because they were too left-wing for the paper.
Like this cartoon? Follow Rob Rogers on twitter.
Monday, June 18, 2018
The Trump administration has used workplace raids as a tool in immigration enforcement. Elizabeth Oglesby on The Conversation looks at the long term impacts of raids on local communities. "While the immediate shock and trauma of these raids is visible, there are also longer-term impacts on communities. Research I conducted in Massachusetts, Iowa and South Carolina from 2007 to 2013 shows that large-scale raids are experienced locally as disasters, even by those not directly affected. The raids can also be galvanizing, as when humanitarian responses turn into new political alliances that reshape the meaning of community and create ways to stand up for immigrant rights."
On Father's Day, First Lady Melania Trump weighed in on the controversy over the Trump administration's policy of separating families in detention. As ABC News reports, a statement was released that “Mrs. Trump hates to see children separated from their families and hopes both sides of the aisle can finally come together to achieve successful immigration reform.” “She believes we need to be a country that follows all laws, but also a country that governs with heart.”
In an op/ed in the Washington Post, former First Lady Laura Bush states that separating children from their parents at the border is cruel and immoral. First Lady Bush draws parallels between the detention policy and the Japanese internment during World War II.
UPDATE (June 19): Former First Ladies Rosalynn Carter and Michelle Obama later joined the chorus of criticism of the Trump administration's family separation policy.
Sunday, June 17, 2018
U.S. Commission on Civil Rights Issues Letter to Departments of Justice and Homeland Security Denouncing Separation of Immigrant Families
The Trump administration's family separation policy along the border was subject of a U.S. Commission on Civil Rights Issues Letter to Departments of Justice and Homeland Security Denouncing Separation of Immigrant Families.
A lengthy article in The Guardian reviews claims that Attorney General Jeff Sessions engaged in political bias in hiring immigration judges. As found by the Department of Justice Inspector General, the Bush administration engaged in similar political vetting.
This Scholar's Circle podcast, with Maria Amoudian, considers the question whether America is facing a human rights crisis with its immigration policy? With reports of indefinite detentions and separating children from their families, the show explores how we got here, what the political and legal ramifications are, and what happens next for America. [ dur: 35 mins. ] Sociologist David Kyle joins me in discussing the issues.