Saturday, September 15, 2018
From the Bookshelves: Refugee Law and Policy: A Comparative and International Approach by Karen Musalo, Jennifer Moore, Richard A. Boswell, Annie Daher (fifth edition 2018)
Refugee Law and Policy: A Comparative and International Approach by Karen Musalo, Jennifer Moore, Richard A. Boswell, Annie Daher (fifth edition 2018).
The fifth edition of Refugee Law and Policy, which reviews legal developments through early 2018, provides a thoughtful scholarly analysis of refugee law and related protections such as those available under the Convention against Torture. The book is rooted in an international law perspective and enhanced by a comparative approach. Starting with ancient precursors to asylum, the casebook portrays refugee law as dynamic across time and cultural contexts.
Although Refugee Law and Policy is directed toward students of US law, it draws on the legislation, jurisprudence and guidelines of other Refugee Convention and Protocol signatories, including Canada, the United Kingdom, Germany, Australia, New Zealand, and South Africa. The casebook is up to date on developments to harmonize refugee policy within the European Union, and includes discussion of relevant EU directives. Refugee Law and Policy also compares current trends in refugee law to parallel trends in human rights and humanitarian and international criminal law. In its treatment of both US and global trends, Refugee Law and Policy examines some of the most controversial contemporary issues in refugee law. This edition incorporates discussion of reforms and developments stemming from 9/11 and the wars in Iraq and Afghanistan, the Syrian refugee crisis, and the increase or “surge” in refugees entering the US as a result of rising violence in the northern triangle countries (El Salvador, Honduras, and Guatemala) of Central America over the last decade. It expands its focus on the denial of access to the territory of the country of asylum through use of interdiction, as well as expedited removal and similar “accelerated” procedures. It also discusses punitive measures intended to deter asylum seekers, such as the increased use of detention.
Refugee Law and Policy also carefully examines developments in the substantive interpretation of asylum claims. This edition includes substantial materials on the cutting-edge area of social group claims and their relevance to claims for protection based on gender-based persecution and LGBT status, as well as in the context of claims based on fear of gangs. It includes an extensive discussion of the “social distinction” and “particularity” requirements, which have had a significant impact on the scope of protection. Since the casebook addresses both substance and procedure, with a focus on practice as well as theory, it is an excellent text not only for students, but for practitioners and those in government agencies as well.
Friday, September 14, 2018
Celebrating Constitution Day and Citizenship Day (Constitution Week) 2018 with Naturalization Ceremonies
U.S. Citizenship and Immigration Services has announced a wonderful set of celebrations for Constitution and Citizenship Day (Constitution Week):
"On Sept. 17, the nation observes Constitution Day and Citizenship Day as part of Constitution Week. The commemoration honors both the signing of the Constitution on Sept. 17, 1787, and an observance that began in 1940 as “I Am an American Day.”
USCIS celebrates Constitution Week with naturalization ceremonies across the country. This year, we will welcome approximately 45,000 new citizens at over 260 naturalization ceremonies between Sept. 14 and 23. A list of highlighted ceremonies is below.
We encourage you to share your experiences and photos from naturalization ceremonies through social media, using the hashtag #newUScitizen. You can also follow us on Twitter (@uscis), YouTube (/uscis), Facebook (/uscis), and Instagram (/uscis)."
Here is a list of ceremonies.
From the Bookshelves: Immigration and Nationality Law: Cases and Materials by Richard A. Boswell (5th edition 2018)
Teacher's Manual available
The fifth edition of Immigration and Nationality Law provides both a practical and theoretical framework for understanding the issues and procedural rules which constitute current US immigration law. The book covers all aspects of what is commonly regarded as immigration and nationality law, covering immigrant rights, citizenship, expatriation, inadmissibility, deportability, removal, waivers, relief from removal, asylum and refugees, nonimmigrant visas, and acquisition and loss of permanent residency. All of this is approached from both a substantive and procedural context, using problems and flow charts to help the student or new practitioner to more easily grasp this complicated subject matter. The fifth edition has been significantly revised and incorporates case law and developments through December 2017 including the Travel Ban, DACA, and sanctuary city litigation. Since the book addresses both substance and procedure, with a focus on practice as well as theory, it is an excellent text not only for students, but for practitioners and those in government agencies. Immigration and Nationality Law also includes a dynamic Teacher’s Manual which summarizes the cases providing additional questions and problems that can be used by the instructor. View the Table of Contents and more! Request an examination copy!
Hurricane Florence is in the news and on our minds. As often occurs in weather emergency situations, some of the most vulnerable may be reluctant to seek assistance. Tina Vasquez of Rewire News reports that, because of their immigration status, many undocumented residents have been afraid to approach officials with Florence evacuation questions and concerns, fearing immigrant detention or worse.
Remove references to John Boalt -- Advocate of Chinese Exclusion -- from UC Berkeley Law, school committee says
Stephanie Francis Ward in the ABA Journal reports on a fascinating story about one of the nation's leading law schools and its efforts to address the racially discriminatory views of one of its early benefactors.
For generations, UC Berkeley School of Law has been known as "Boalt Hall," named after John Henry Boalt. The School explains the basic genesis of the school name here. In an Immigration Article of the Day on this blog, Charles Reichmann offered "[a] close look at John Boalt’s legacy . . . calls out for a reexamination of the law school’s continued association with Boalt, given the contrast between UC Berkeley’s stated values and Boalt’s influential views that the Chinese were an unassimilable race that ought to be excluded from the United States."
"Elizabeth Boalt did make contributions in John Boalt’s memory that assisted the law school as well as the entire University of California to move forward in its early years. There is, however, no evidence that John Boalt himself, either as lawyer or as a California opinion-maker of his time, would remotely have supported the inclusive law school and the UC Berkeley campus that we are so proud of today. His principle public legacy is, rather, one of racism and bigotry. We are now aware of this history and we acknowledge this history. It is for this simple reason that we cannot endorse having University of California’s flagship law school tagged so unthinkingly, as it has been for more than a century, with John Boalt’s name."
Thursday, September 13, 2018
Two episodes of Alex Aleinikoff's podcast series Tempest Tossed are worth listening to.
Colorlines reports on a story that has been in the news this week. According to documents released earlier this week, the Trump administration diverted nearly $10 million from the Federal Emergency Management Agency ( ) to Immigration and Customs Enforcement ( ) just before the start of hurricane season. In an appearance on “The Rachel Maddow Show” as Hurricane Florence zeroed in on the mid-Atlantic coast, Senator Jeff Merkley (D-Ore.) released a 39-page document from the Department of Homeland Security. The document showa that the administration took the money from to reinforce ’s Enforcement and Removal Operations unit, which is responsible for detaining and deporting immigrants of undocumented status.
This podcast on The Appeal offers a basic summary of the evolution of crimmigration law. Here is the lead in to the podcast:
"Historically, immigration law and criminal law have functioned separately. But over the past few decades, we’ve seen them slowly merge, as the criminalization of immigrants increased. Now, under Trump, the result has been policies like family separation. On this episode, we talk to Alida Garcia, an attorney and Vice President of Advocacy at FWD.us, about America’s shameful trend of criminalizing immigrants."
Wednesday, September 12, 2018
This Article provides the first comprehensive study of blame in the U.S. immigration system. Beyond blaming migrants, we blame politicians, bureaucrats, and judges. Meanwhile, these players routinely blame each other, all while trying to avoid being blamed. As modeled here, these dynamics of “immigration blame” have catalyzing effects on the politics, policies, and structures of immigration law. Yoking key insights from a range of social sciences, this Article offers unique perspectives on the operation and design choices of the immigration system. Moreover, through a blame lens, the terms of debate over amnesty, immigration enforcement, the travel ban, sanctuary cities, and the Supreme Court’s plenary power doctrine come into sharper focus.
In turn, this Article’s descriptive portrayal of immigration blame prompts some vexing normative questions: Is immigration blame desirable? Can its inputs and outputs be controlled? If so, how and toward what ends? In immigration, as elsewhere, blame is a paradox: both functional and dysfunctional, socially cohering and corrosive. That being so, we should not aim for a blame-free immigration system. Rather, we should seek ways to promote the values of immigration blame, while minimizing its more unsavory manifestations. Toward those ends, this Article prescribes an “ethics of immigration blame” and suggests ways that law might be harnessed to mediate some of blame’s pathologies. Today’s sociopolitical conditions crystallize the need for this work.
Tuesday, September 11, 2018
As I've mentioned before, I like using the documentary Well Founded Fear when teaching asylum. I give my students clips from the film and ask them to gauge the veracity of the applicants.
One of the clips that I use involves an asylum officer describing an individual coming to him with a "textbook Falun Gong" case who turns out to be a Catholic priest (with a genuine as opposed to fraudulent asylum claim). Given the emphasis in the movie about the falsity of Falun Gong cases, I've often wondered about legitimate cases.
Imagine, therefore, my surprise to see this interview by HONY:
“My grandmother was the first in our family to discover it. One day she joined a meditation in the park. She was taking so many medications at the time, but she threw them all away and never took another trip to the hospital. That was before the crackdown. At one time were one hundred million followers of Falun Gong in China. It’s a peaceful religion. But the following grew too big. Our teacher seemed like a threat to the government. They said crazy things on state media. They called it a cult. They said we’re terrorists and that we kill our parents. They began to arrest us. They even harvested our organs. I know it sounds crazy, but you can Google it. We tried to resist. We practiced inside our home. We secretly handed out fliers to push back against the propaganda. But they caught me on camera. Everywhere there are cameras. They followed me to my home. They shoved me in their car. For eight months I was in detention. The first thing they did was take a sample of my blood. For hours every day they put us in a room and forced us to watch television about how to be a good citizen. If anyone looked away, the whole group was punished. Eventually my family bribed the court with huge money and they let me go. But for three years I had to write a letter every month saying that I am a guilty person. When my probation ended, I left the country.”
This could be an excellent addition to your discussion of Well Founded Fear or be used as an asylum real-o-thetical on its own.
Today is September 11. On this day in 2001, tragedy hit the United States. A few years back, Deepa Iyer and Jayesh M. Rathod published "9/11 and the Transformation of U.S. Immigration Law and Policy." Here is another look at the impacts of September 11 on immigration law.
The Federal Reserve Bank of St. Louis released at report on the Hispanic work force. The "key takeaways":
- Hispanics are a growing share of the U.S. workforce. Yet they are more likely to work in lower-skill occupations than non-Hispanics.
- Data show that the education level of Hispanic workers lags behind that of non-Hispanic workers. This may explain the disparity in occupations.
- The country’s aggregate productivity would improve if Hispanics could develop their talent and skills
Rural Migration News summarizes the report as follows:
The share of Hispanics in the US labor force increased eight-fold between 1970 and 2016, from less than two percent to over 13 percent. Growth was fastest for farmers and farm laborers: the Hispanic share of workers in this occupation rose almost 14 times, from less than two percent to 25 percent.
The share of Hispanics in low-skill occupations rose fastest, which helps to explain why the earnings of Hispanics relative to non-Hispanics fell from 85 percent to 70 percent between 1950 and 2016.
One reason for the widening wage gap between Hispanic and non-Hispanic workers is the gap in education levels. Many Hispanics do not complete high school, almost 40 percent in 2016, compared with 15 percent of non-Hispanics. A quarter of non-Hispanics completed college, compared with less than 10 percent of Hispanics. Among Hispanics who completed college, a higher share are women than men.
- The share of Hispanics in the US labor force increased 8-fold between 1950 and 2016
- The share of Hispanics in low-skill occupations rose fastest
- The relative earnings of Hispanics fell as their share of the labor force increased
- Some 40 percent of Hispanics in 2016 did not complete high school
Immigration Article of the Day: Judicial Review of Disproportionate (or Retaliatory) Deportation by Jason A. Cade
Judicial Review of Disproportionate (or Retaliatory) Deportation by Jason A. Cade, Washington and Lee Law Review, Vol. 75, Forthcoming
This Article focuses attention on two recent and notable federal court opinions considering challenges to Trump administration deportation decisions. While finding no statutory bar to the noncitizens’ detention and deportation in these cases, the court in each instance paused to highlight the injustice of the removal decisions. This Article places the opinions in the context of emerging immigration enforcement trends, which reflect a growing indifference to disproportionate treatment as well as enforcement actions founded on retaliation for the exercise of constitutional rights. Judicial decisions like the ones considered here serve vital functions in the cause of immigration law reform even as they uphold government enforcement decisions. They help motivate advocates, promote inter-branch dialogue, and provide progress toward judicial innovation. This Article focuses particular attention on this steps-on-the-way function, suggesting how the concerns these courts have expressed may one day soon produce a greater measure of judicial scrutiny of removal decisions on proportionality grounds.
Monday, September 10, 2018
A Chinese man working as a motorcycle trader in Kenya, Liu Jiaqi, was caught on camera saying the African country "smells bad" and its people are "poor, foolish and black". He went on to say that "all the Kenyans" are "like a monkey," including the nation's president. Unfortunately for him, this racist rant went viral.
As the BBC reports, Kenyan authorities announced on Twitter that Liu Jiaqi had been "arrested due to his RACISM remarks" and "has been DEPORTED."
I think it's nice to include some comparative law when talking about deportability grounds. It's an opportunity to say "we've talked about what behavior in the United States may trigger deportation; other countries around the world may have different ideas regarding deportability." This Kenyan example is a good one.
My all time favorite comparative example, and one I end on every year, is the removal of Omar Borkan Al Gala from Saudi Arabia. The man was just too hot!
"And, as the statute states, Immigration Judges conduct designated proceedings `subject to such supervision and shall perform such duties as the Attorney General shall prescribe.'
This last provision gives me responsibility to ensure that our immigration system operates in an effective and efficient manner consistent with law enacted by Congress. Many in this country take a different view. They object to any enforcement that works. They evidence an open borders philosophy.
Let me say this clearly: it is perfectly legitimate, moral, and decent for a nation to have a legal system of immigration and to enforce the system it adopts. No great and prosperous nation can have both a generous welfare system and open borders. Such a policy is both radical and dangerous. It must be rejected out of hand. Open borders is directly contrary to the INA, which governs our work. The INA is not perfect, but it plainly lays out a rational scheme for immigration that tells our officers and judges who is to be admitted, how many and under what circumstances."
"The asylum system has been abused for years to the detriment of the rule of law, sound public policy, and public safety—and to the detriment of people with just claims. Saying a few simple words—claiming a fear of return—has transformed a straightforward arrest for illegal entry and immediate return to too often into a prolonged legal process, where an alien may be released from custody into the United States and possibly never show up for an immigration hearing.
This is a large part of what has been accurately called “catch and release.” Our system was not designed to handle thousands of new asylum claims every month from individuals who illegally flood across the border. But that is what has been happening, and it has overwhelmed the system."
And the conclusion:
"As we work to restore rule of law in our immigration system, we will send a clear message to the world that the lawless practices of the past are over. The world will know what our rules are, and great numbers will no longer undertake this dangerous journey.
The number of illegal aliens and the number of baseless claims will fall. A virtuous cycle will be created, rather than a vicious cycle of expanding illegality.
The American people have spoken. They have spoken in our laws and they have spoken in our elections. They want a safe, secure border and a lawful system of immigration that actually works. Let’s deliver it for them."
Not surprisingly, Sessions' comments generated critical comments.
Last week, the nation watched as the Senate Judiciary Committee held hearings on the nomination of Judge Brett Kavanaugh to the Supreme Court. Aaron Reichlin-Melnick on Immigration Impact evaluates Brett Kavanaugh’s record on immigration, which is limited (three dissents), in the D.C. Circuit.
Immigration Article of the Day: Equity in Contemporary Immigration Enforcement: Defining Contributions and Countering Criminalization by Alia Al-Khatib and Jayesh Rathod
Equity in Contemporary Immigration Enforcement: Defining Contributions and Countering Criminalization by Alia Al-Khatib and Jayesh Rathod, Kansas Law Review, Vol. 66, 2018
Since the 2016 Presidential election, discussions of immigration policy and enforcement have taken center stage in the public debate. In contrast to the Obama administration, which had articulated specific priorities for removal, the Trump administration has significantly expanded its enforcement targets. Indeed, high-level officials have confirmed that virtually anyone who is in the country without authorization is susceptible to removal. To make its case for enhanced immigration enforcement, the current administration has deployed familiar tropes regarding immigrant criminality and dangerousness. This rhetoric, operationalized through varied structures of criminalization, has shrunk the pool of individuals who can argue against removal, notwithstanding contributions or connections to the United States.
The current political moment invites deeper reflection about the equities that should insulate undocumented noncitizens from removal, and how those equities should be assessed vis-à-vis allegations of criminality. Over the years, scholars have articulated a range of factors that justify protection from removal or even regularization of status. This article builds upon that literature, and presents a more nuanced typology of the societal contributions that should weigh against removal, along with the theories that undergird noncitizens’ claims in this context. A second purpose of this article is to expose how the powerful trend of criminalization has begun to infect even the limited space where discretion can be exercised, and has converted seemingly favorable conduct into undesirable criminal activity. This development, which is examined through the lens of several case studies, enables exclusion and expulsion, and disrupts the incentives that noncitizens have to contribute to and support the state.
Sunday, September 9, 2018
Last week, I told you the horrifying news that children in refugee camps in Greece and Nauru are exhibiting suicidal behavior. This week, Pro Publica reports that children held at a Chicago shelter also exhibit suicidal behavior and "hurt themselves in despair."
The article notes that kids are being held for longer periods in detention, and the longer the kids are held, the more they suffer. That latter bit - about suffering - comes as no surprise to me. When I first graduated from law school I volunteered at a shelter for abused children. Kids who stayed there for extended periods of time really changed. Initially sweet and cheerful kids became surly and uncooperative. Staff knew this and did their best to find homes for the kids as soon as possible in order to combat this tendency.
But for these immigrant kids, getting out of the shelter is nigh impossible. Nearly thirty children in Chicago have been in detention more than 200 days. One child has been detained almost 600 days.
The reasons for extended detention of minors are myriad. Some cases have been de-prioritized as officials struggle to comply with court orders regarding the reunification of other chidlren. And hurdles for sponsors abound - fingerprinting at police stations, sharing data about sponsors with ICE, the financial obligation to pay for plane tickets for the detained child and an escort to reach the sponsor.
And what about kids who become legal adults while in detention? "A child’s 18th birthday is a dreaded milestone marked by the arrival of federal immigration agents at shelter doors, sometimes just after midnight."
Sanctuary denotes the insulation of spaces and places and persons, designating refuge or immunity from some force or authority. In this respect, we can think of sanctuary not as challenging state power frontally but as shielding against incursions of power. It is protective and defensive; it embodies a politics of boundary maintenance.
Precisely because sanctuary is a politics of boundary maintenance, it is in some respects quintessentially liberal in nature and impulse. Liberalism stands for a politics of jurisdictional boundary maintenance; it demands the separation of spheres and powers. (In political theorist Michael Walzer’s terms, liberalism is “the art of separation.”) In (heretofore) liberal democratic states like the United States, jurisdictional sphere separation has been enormously protective for noncitizen immigrants. Liberal legalism has imposed crucial constraints on the jurisdiction of interior border enforcement. That this is so becomes particularly clear in moments like the present one, in which the authoritarianizing national state is smashing through prior jurisdictional boundary settlements and extending the interior border to reach an ever wider set of spaces and moments and subjects. Which is to say: the aggressive processes of border pervasion unleashed by the Trump administration represent a systematic attack upon, and partial dismantling of, certain sanctuarist elements endemic to liberal legalism.
Saturday, September 8, 2018
Liz Robbins writes in the New York Times about the Department of Justice's new case completion quotas for immigration judges to complete 700 cases each year, which are scheduled to go into effect October 1. The article also discusses the high level of retirements amongst IJs in recent months, as well as the selection of a new chief judge for the New York immigration court (a Las Vegas immigration judge with "an 86.5 percent denial rate of asylum claims, which made him the most lenient of the four judges in Las Vegas.") Professors David Martin and Michael Kagan are quoted in the piece as well.