ImmigrationProf Blog

Lawsuit Challenges Board of Immigration Appeals Policy Secrecy

Lawsuit Demands Government to Disclose Information About Unjust Deportations

NEW YORK, Feb. 28, 2019 – The Trump administration’s immigration enforcement policies have increased immigrants’ vulnerability to swift deportation, making the ability to access safeguard more important than ever. The Board of Immigration Appeals, the highest administrative body for interpreting and applying immigration laws, has refused to disclose critical information about how it implements life-saving mechanisms that would allow these individuals to seek reopening or reconsidering of their immigration cases, and prevent the irreparable harms that can result from deportation. 

In response, the American Immigration Council and the Kathryn O. Greenberg Immigration Justice Clinic at Benjamin N. Cardozo School of Law filed a lawsuit yesterday in federal court to compel the Executive Office for Immigration Review and the Department of Justice to release policies, practices, and data that disclose how the BIA interprets mechanisms to reopen or reconsider immigration cases, and legal actions to temporarily prevent deportation of vulnerable individuals.
 
The lawsuit, filed in the Southern District of New York, challenges the BIA’s failure to disclose information—in response to two Freedom of Information Act requests submitted in July and November 2018— about its policies and practices regarding requests to halt removal while an individual seeks review of an unlawful deportation order. The suit asks the court to produce documents that will provide the public with information on requests to prevent unlawful or unjust deportations, including statistical information on these decisions and guidance on the standards for deciding such requests.

“The BIA’s failure to properly implement these crucial mechanisms for reopening cases and protecting against harm places asylum seekers at risk of serious bodily harm and death,” said Yael Ben Tov, law student intern at the Kathryn O. Greenberg Immigration Justice Clinic at Benjamin N. Cardozo School of Law. “In order to prevent more erroneous deportations, it is critical that the BIA produce these documents so that noncitizens may access their statutory and regulatory rights.” 

“The motion to reopen and stay processes exist to protect individuals from irreparable harm as a result of erroneous deportations. Yet by operating in secrecy and opacity, the BIA undermines Congress’ intention and allows this exact population along with many others who have valid claims for relief to be deported, without so much as a glance at the merits of their case,” said Claudia Valenzuela, FOIA staff attorney at the American Immigration Council. “We cannot allow the BIA to continue to shield its practices from public scrutiny.” 

“Individuals seeking to avail themselves of their statutory rights, especially those that are pro se, need clear guidance from the BIA on how these mechanisms work,” said Geroline Castillo, law student intern at the Kathryn O. Greenberg Immigration Justice Clinic at Benjamin N. Cardozo School of Law. “Without it, they risk losing their families and communities, even if they have valid claims and can lawfully remain in the United States.” 

Since the Trump administration took office in 2017, U.S. Immigration and Customs Enforcement has stepped up arrests, detention, and quick deportation of people residing in vulnerable immigrant communities. Many targeted individuals have lived in the United States for years with the federal government’s permission. 

In many cases, these individuals are now afraid to return to their country of origin because of changed circumstances there and hope to reopen their immigration cases to seek protection from persecution. In other cases, individuals can now show that their underlying deportation order was invalid or that they merit some other form of relief. While immigration law provides mechanisms for reopening and reconsidering cases and preventing the irreparable harms that can result from deportation, current EOIR practices often render these protections ineffective and result in unjust deportation of individuals before their cases are even considered by the immigration courts. Many of these deported noncitizens are forced to live in hiding in fear of their lives and often lose touch with their friends, family, and advocates in the United States. 

bh

From the Bookshelves: Banned: Immigration Enforcement in the Time of Trump by Shoba Sivaprasad Wadhia

KJ

Global Governance of International Migration 2.0: What Lies Ahead?

Kathleen Newland for the Migration Policy Institute analyzes the new Global Compact for Safe, Orderly, and Regular Migration—the first comprehensive framework of principles and objectives to guide international cooperation on migration.  The Global Compact was adopted by a majority of states at the end of 2018.

As Newland observes, the compact emerged from a sense of crisis, with large-scale, unanticipated migration in a number of regions driving home to governments the limitations of attempting to manage such flows unilaterally. As the author of this brief notes: “States turn to international cooperation when unilateral action fails them, as it did spectacularly at the climax of 2015, and they are convinced that their goals are more likely to be reached by collaborating with others.”

The adoption of the compact in December 2018 was the culmination of a drama that unfolded in twists and turns. Since the UN General Assembly announced in 2016 that such a compact was to be crafted, negotiators have grappled with how to reconcile the interests of origin, transit, and destination countries, and the compact has had to withstand virulent criticism that it threatens national sovereignty.

In reality, as the brief explores, the kind of collaboration outlined in the compact promises to give states tools to reinforce their sovereignty—to better control how and under what conditions migration happens, improving outcomes for both states and the migrants involved. Looking ahead, the effectiveness of the nonbinding document will depend largely on the steps governments take to implement their commitments under the compact, and to support others in doing so.

KJ

Immigration a Complex — and Divisive — Issue for Catholics

The National Catholic Register outlines the divisions among Catholics on immigration policy and reform.  Church member sare polarized racially, just as the nation is.   A January 2019 poll conducted by the Public Religion Research Institute highlighted these divisions. Overall, 58% of Americans oppose the building of the wall, and 41% support it, according to the PRRI poll, but there is a mirror-image partisan division, with Democrats opposed by an 80%-20% margin and Republicans supportive by an 80%-19% margin. Among Catholics as a whole, 53% were opposed, while 45% supported the wall. But white Catholics supported it overall, by a 56%-44% margin, whereas Hispanic Catholics were opposed by 73%-27%. Both sides debate how best to address the tangle of issues involved in immigration policy that the current policy needs to be fixed. But disagreement about how that should happen continues to stand as a barrier to progress.

KJ

Immigrant of the Day: Karl A. Racine (Haiti), District of Columbia Attorney General

Harry Jaffee on Politico profiles Karl A. Racine, the Attorney General of the District of Columbia and our Immigrant of the Day.

Racine, as co-chair of the national Democratic Attorneys General Association, has played an influential role in fighting the Trump administration. Racine has been quietly building out Democrats’ ability to check his administration at the state level. As D.C. attorney general, Racine is one of the leaders in the emoluments suit against the president over foreign governments’ allegedly corrupt patronage of the Trump International Hotel in downtown Washington. As co-chair of DAGA, he has helped coordinate the legal and political strategies behind the lawsuits suing the Trump administration over issues including the separation of children and parents at the Mexican border, upholding the Affordable Care Act and protecting DACA recipients.

Racine emigrated from Haiti at age 3 and grew up inest D.C.  He went to the University of Pennsylvania, where he captained the basketball team, led it to a pair of Ivy League championships and made the second team all-Ivy squad twice.  After college, Racine earned his law degree at the University of Virginia and returned to the District to work for a short time as a public defender before turning to private practice. He eventually landed at Venable, a top firm.  He next successfully ran for D.C. attorney general.

KJ

21 Savage: A "martyr of conscience"?

 

ImmigrationProf previously blogged about 21 Savage's immigration problems. An article by Jon Caramanica in the New York Times sheds light on the possible reason for the arrest and detention.

A week before the Grammy Awards, 21 Savage was arrested in Atlanta and placed in removal proceedings by Immigration and Customs Enforcement, which said he was an “unlawfully present United Kingdom national” and charged him with overstaying his visa. He was released a week later on $100,000 bond. 21 Savage — birth name She’yaa bin Abraham-Joseph — was born in London.

Dina LaPolt, 21 Savage's general counsel, and Charles Kuck, his immigration attorney — suggest that political motivations may have been at play:

"Three days before 21 Savage’s arrest on Feb. 3, LaPolt was already putting an action plan in motion. `We had heard that they were looking at him,' she said. 

In late January, 21 Savage performed a new version of his single `A Lot' on `The Tonight Show Starring Jimmy Fallon,' with lyrics that touched on the issue of children being separated from their parents at the United States border, a controversial Trump administration tactic to discourage illegal immigration.

`There was scuttlebutt after the Jimmy Fallon show' coming from `some very high levels in Washington,' LaPolt added. What she heard suggested that 21 Savage had ruffled feathers."

KJ

Immigration Article of the Day: Race, Gender, and Nation in an Age of Shifting Borders by Catherine Powell

Race, Gender, and Nation in an Age of Shifting Borders by  Catherine Powell,  UCLA Journal of International Law and Foreign Affairs Fordham Law

Abstract

The contributions that critical race theory scholars have made to the literature on nation, borders, and sovereignty have become even more salient in the Age of Trump. However, what remains undertheorized is how gender intersects with race in the legal construction of nation and borders today. In particular, this essay analyzes two common tropes in the current immigration debate – the “criminal” and the “welfare cheat” –not only to demonstrate how these narratives have been used to justify restrictive immigration law and policy, but also how they are used to reinforce and even shift legal constructions of nationhood and borders as both raced and gendered.

KJ

California's AG Releases Report on Immigration Detention

Xavier Becerra via Twitter

Yesterday, California's Attorney General, Xavier Becerra, released a report on immigration detention in California.

The report comes out of a law passed in June 2017 charging the California Department of Justice with reviewing civil immigration detention and reporting back to the Legislature, Governor, and the public about those findings.

Officials from the California DOJ visited all 10 civil immigration detention facilities in the state--public and private. They engaged in a "comprehensive review" of three of those facilities, including a center for minors.

The report found common issues among the facilities:

• Restrictions on liberty
• Language barriers
• Issues with access to medical and mental health care
• Obstacles to Contacting Family and Other Support Systems
• Barriers to Adequate Representation

I just finished covering immigration detention in my Crimmigration course. But I am flagging this report to use next year!

-KitJ

President Trump's Political Miscalculation? Missing from Trump’s wall war: What immigration hawks really want

Nancy Cook and Gabby Orr on Politico critically look at how President Trump's focus on "the wall" is not what supporters of immigration restrictions really want:

"President Donald Trump sees his border wall crusade as a base-pleasing 2020 campaign asset, proof that he is the ultimate immigration hardliner.

But his wall may not be built for years, if ever. In the meantime, Trump has yet to deliver on several other campaign promises that immigration hawks call far more important — a failure that could cost him among conservatives demanding results on border security going into Trump’s reelection bid.

Over two years in the White House, Trump has struggled to execute numerous agenda items long on immigration hardliners’ wish list — like finalizing stricter regulations, overhauling the immigration court system, adding additional surveillance technology to the border, doing away with sanctuary cities and making sure employers electronically check the immigration status of all workers.

Instead, Trump has picked high-profile battles over a southern border wall and banning travelers from certain Muslim-majority countries that generated controversy and whipped up parts of his base, but did not do much to stem the flow of illegal immigrants. In fact, the number of illegal crossings at the southern border rose this past fall to levels not seen since 2014 under President Barack Obama, although they still remain low relative to historic numbers. “

The focus on the wall is a bit myopic,” said RJ Hauman, director of government relations at [the Federation for American Immigration Reform (FAIR)], a group that seeks to reduce immigration overall. “They are right to pursue fencing in some areas, but we need to remember: It is just one little cog in a much broader approach. Sometimes the wall can suck all of the air out of the room.”

KJ

Dinghy vs. Lorry: Migrating Across the English Channel

Check out this fascinating piece from the BBC: "Crossing the Channel by boat is risky - we came by lorry." It offers the first hand account of a Iraqi family's struggles to cross the English Channel in order to seek asylum in the United Kingdom.

The family originally planned to cross by dingh,y but their friends' poor experiences with such a crossing led them to pursue lorry transport. The family made more than 20 (!) attempts to enter the U.K. They finally succeeded this month.

-KitJ

U.S. government documents show thousands of alleged incidents of sexual abuse against unaccompanied minors in custody

 

CNN reports on a deeply troubling story. 

As we know, the Trump administration has greatly ramped up the detention of Central American asylum seekers, including minors, and went so far as to separate children from their parents.  Now, we learn more about the dangers faced by migrant children in detention.

The Department of Health and Human Services received more than 4,500 complaints of sexual abuse against minors from 2014-2018, according to internal agency documents released today by Florida Democratic Rep. Ted Deutch.

The documents reveal that 1,303 complaints were reported to the Justice Department during that same time frame.

 

Deutch addressed the documents during a House hearing on the Trump administration's "zero tolerance" policy that resulted in thousands of immigrant children being separated from their parents.  He said that the documents "demonstrate over the past three years, there have been 154 staff on unaccompanied minor, let me repeat that, staff on unaccompanied minor allegations of sexual assault."  "This works out on average to one sexual assault by HHS staff on unaccompanied minor per week," he added.

 

Axios first reported on the documents.

 

KJ

Full Text of Bipartisan Declaration of Former Senior U.S. Officials Refuting President’s Claim of a National Emergency at Southern Border

A few weeks ago, President Trump declared an emergency along the US/Mexico border.

Just Security has announced that

"A bipartisan group of 58 former U.S. government national security officials have signed a Joint Declaration that directly challenges President Donald Trump’s proclamation of national emergency to allow the use of billions of dollars in otherwise unavailable funds to build a wall at the southern border. The declarants notably include officials who served in the Trump administration, including the former U.S. Ambassador to Mexico, U.S. Ambassador to Panama, Director of the National Counterterrorism Center, and Assistant Secretary for International Engagement at the U.S. Department of Homeland Security. The declarants “support the President’s power to mobilize the Executive Branch to respond quickly in genuine national emergencies” but state that “under no plausible assessment of the evidence is there a national emergency today that entitles the President to tap into funds appropriated for other purposes to build a wall at the southern border.”

In eight steps, the joint declaration refutes the factual basis for the President’s emergency declaration, relying, in detail, on “evidence in the public record, including the administration’s own data and estimates,” to show that:

• Illegal border crossings are at near forty-year lows;
• There is no documented terrorist or national security emergency at the southern border;
• There is no emergency related to violent crime at the southern border;
• There is no human or drug trafficking emergency that can be addressed by a wall at the southern border;
• This proclamation will only exacerbate the humanitarian concerns that do exist at the southern border;
• Redirecting funds for the claimed “national emergency” will undermine U.S. national security and foreign policy interests;
• There is no basis for circumventing the appropriations process with a declaration of a national emergency at the southern border; and
• The situation at the border does not require the use of the armed forces, and a wall is unnecessary to support the use of the armed forces."

Click the link above for the rest of the statement.

KJ

International Organization for Migration: Migration scored with film audiences in 2018

 

 

Viewers around the world watched the Academy Awards last night.  The IOM highlights the issues of migration raised by many of the movies nominated for Oscars this year.  Migration scored with film audiences in 2018 as films like “Roma,” “Capernaum,” “Cold War,” “Lifeboat,” and “Bohemian Rhapsody” all which touched on themes of human mobility and were recognized for Oscar nominations.

Three of the five artists nominated in the category Best Director were migrants born abroad: from Greece (Yorgos Lanthimos, nominated for directing “The Favourite”), from México (Alfonso Cuarón, for “Roma”) and from Poland (Pawel Pawlikowski for “Cold War”). The Oscar went to Mr. Cuarón for his drama about the life of a Mexican migrant, a woman who journeys from rural México's capital during the 1960s.

Other reminders of migration abounded during the Oscar ceremonies. For example, an actor whose family migrated to the U.S. from Egypt (Rami Malek) won the Best Actor Award playing a rock star who emigrated from Zanzibar to the U.K. to reinvent himself as the singer known as Freddy Mercury in the biopic “Bohemian Rhapsody.”

KJ

Maryland (Republican) Governor on Immigration Reform

Maryland's Republican Governor Larry Hogan had a few things to say on the politics of immigration reform in this commentary on the CVNN website.  Although it was focused on a compromise to avert another federal government shutdown, the piece has some thoughtful ideas on how to move the discussion of immigration reform forward.  He is tough on "open borders" advocates Speaker Nancy Pelosi and Senator Charles Schumer but also observes that "Republican leaders are doing the same thing, firing up their base with inflammatory language. It's also a fair criticism to say that Republicans could have gotten this done in the past two years, when they controlled all branches of government. It's unclear precisely what they've been doing all this time. "

KJ

In Garlic Capital, Tariffs And Immigration Crackdown Have Mixed Impacts

Photo courtesy of City of Gilroy website

 

This NPR report shows the mixed results for agriculture of the Trump administration's support on tariffs on foreign products and crackdown on immigrants.  In Gilroy, California, known as "The Garlic Capital of the World," tariffs on Chinese garlic has helped local garlic growers while tough immigration enforcement has led to labor scarcity.  One garlic packager "wonders: If enough people get deported, who's going to harvest all that garlic?"

KJ

 

 

Trump Administration's Plan to Reduce Immigration Court Backlog: Fast Track Deportations

The American Immigration Council's "Immigration Impact" carefully analyzes the Trump administration's plans to reduce the immigration court backlog, which has increased dramatically in recent years.

Pursuant to a Freedom of Information Act, the Executive Office for Immigration Review (EOIR) has produced a partially redacted plan for reducing the immigration court backlog. The aim of the October 2017 “Strategic Caseload Reduction Plan” is clear—to fundamentally alter the immigration court system under the guise of creating efficiencies.

As noted by the American Immigration Lawyers Association, the effect of a new quota system on immigration judges for completing immigration cases is already widely felt.  In addition, decisions from the Attorney General and EOIR policies have limited immigration judges’ independence and ability to effectively to control their own dockets and address the backlog. These changes include limiting a judges’ ability to continue cases and use of administrative closure—an important tool that allows a judge to temporarily take a case off the court docket.

The conclusion:  The changes outlined in the case management plan appear to reflect a desire to fast track deportation, not a desire to improve efficiencies in the courtroom.

KJ

Venezuela: a humanitarian and security crisis on the border with Colombia

 

Venezuela has been in the news.  The Department of State has advised "do not travel" there given rampant crime, violence, and political instability.  In the news for weeks, borders have been closed, humanitarian aid has been blocked, and the current government is on the brink.  Tens of thousands of migrants are fleeing the violence. 

Annette Idler for The Conversation analyzes the current situation in Venezuela.  As the crisis in Venezuela continues, aid trucks are being blocked at the border with Colombia. Two men claim to be the country’s rightful president.

The Colombia-Venezuela border is home to some of the worst violence and organized crime in the region. Aid blockages can be seen as yet another manifestation of these problems, with armed groups playing power games at the expense of vulnerable local people.

Concerns that Venezuela’s instability could extend beyond its borders have already materialized – 3 million citizens have left the country. Most of them are “absorbed” by borderland communities, pressurizing already strained governance systems.

Research shows that pressure on basic services in these communities that have been deficient anyway – health, access to food and jobs – fuels crime, prostitution, and begging, and deepens social tensions. Together with the xenophobic discourse of right-wing politicians, this becomes an explosive mix.

Venezuela’s crisis is also fueling the expansion of criminal networks that have ruled the region for decades, as they take advantage of the economic crisis along the border.

KJ

Family files lawsuit against Trump administration seeking to return "ISIS bride" to US

The Arizona Republic reports that the father of an American woman who traveled from her home in Alabama to marry an Islamic State fighter filed a lawsuit against the Trump administration in an effort to get her and his 18-month-old grandson returned to the United States. Lawyers acting for Ahmed Ali Muthana, a former diplomat at the United Nations for Yemen who is a naturalized U.S. citizen and lives in Alabama, claim that remarks by President Trump and senior White House officials claiming that Hoda Muthana is no longer a U.S. citizen – thus barring her and her son from re-entering the USA – are unconstitutional.  Earlier this week, the President said that he had instructed the Secretary of State Mike Pompeo to deny Muthana re-entry. Pompeo said she was not a U.S. citizen and has no "legal basis" to be brought back to U.S. from the refugee camp in Syria where she is being held with her young son.

Here is the complaint.

KJ

Lawsuit Claims that Immigration Agents used "excessive force" during Tennessee raid

Aljazeera reports on a lawsuit filed yesterday accusing U.S. immigration agencies of using excessive force, violence and racially profiling workers during a raid at a meatpacking plant last year. The National Immigration Law Center, Southern Poverty Law Center (SPLC), and the law firm of Sherrard Roe Voigt & Harbison filed the lawsuit on behalf of seven named workers who were arrested with about 100 others at a meatpacking plant in Eastern Tennessee on April 5, 2018 by Immigration & Customs Enforcement and Homeland Security Investigations (HSI) agents.

The complaint alleges that, heavily armed, the officers formed a perimeter around the Bean Station plant and blocked every exit, the lawsuit said. During the raid, one of the largest in the United States in the last decade, federal agents flooded the building and shouted at workers to freeze, according to the filings.   Helicopters could be heard hovering above the plant while more agents waited outside with "large machine guns pointed at exits."

The first paragraph of the complaint paints a frightening picture:

"In April 2018, officers from U.S. Immigration and Customs Enforcement (“ICE”), Homeland Security Operations (“HSI”), Enforcement and Removal Operations (“ERO”), and the Tennessee Highway Patrol (“THP”) descended on the Southeastern Provision meatpacking plant (“Plant”) in Bean Station, Tennessee, a small town in the far eastern corner of the state. Heavily armed, the officers formed a perimeter around the plant and blocked every exit. They used official vehicles to seal off the one public road to the Plant. Law enforcement helicopters flew above the Plant, securing and surveilling the premises. In the Plant’s parking lot, several vans and large bags of plastic “zip tie” handcuffs waited to be used. Moments later, dozens of armed officers in bullet-proof vests rushed into the Plant. They quickly fanned out, many with their firearms drawn, and screamed at the workers inside to stop moving. The workers, terrified and confused, feared the commotion was a terrorist attack, a mass shooting, or a fire." (footnotes omitted). 

The complaint alleges violations of the Fourth and Fifth Amendments and the civil rights laws.

KJ

 

 

 

 

Immigration Article of the Day: Resistance Strategies in the Immigrant Justice Movement by Mariela Olivares

Resistance Strategies in the Immigrant Justice Movement by Mariela Olivares, North Illinois University Law Review, Vol. 39, 2018

Abstract

Topics of immigration reform have created deep polarization. To some degree, these political and societal divisions regarding immigrants’ place and ability to remain in the United States drove the Republican successes in the 2016 elections and carried Donald Trump to the White House. When political conservatives called for decreased migration and increased deportations of immigrants already in the United States, progressive politicians and advocates for immigrants did not present a unified and thoughtful response. I discuss this failed narrative strategy in an earlier publication, in which I decry this historic and contemporary lack of cohesive strategy. I end Narrative Reform Dilemmas by observing that the process of creating a cohesive strategy must include an understanding of what fuels contrasting viewpoints and a recognition that reform will only occur when it benefits the most politically powerful majority. Hearkening to the pioneering work of Derrick A. Bell and the phenomenon of interest convergence, I discuss how immigrant advocates must consider how to create and effectuate a strategy that furthers humanitarian immigration reform while also incorporating the divergent views of other political and societal actors.

In this Article, I continue this discussion about crafting a strategic narrative. Part I begins by defining a goal for immigrant advocates. Setting a goal or purpose is a crucial first step for any group engaged in a strategic plan. Without delving deeply into the historic difficulties that constrain the struggle for equality for immigrants, which ultimately must question broad concepts of citizenship and borders (and is best left to another scholarly project), I discuss a framework for preliminary steps. At its foundation, success must embody justice for immigrants, which entails a legislative and political system that embraces fairness through membership identity. Membership would include affiliative and contractual aspects, as Hiroshi Motomura details in his writings, while also ascribing to humanitarian ideals of fairness and justice, as Joseph Carens and Martha Nusbaum espouse. But creating membership identity must not continue the ostracizing effects of past narrative tactics that only pay heed to seemingly positive attributes, as in some of the “Dreamer” and DACA strategies, which Elizabeth Keyes describes.

Part II then explores past efforts to craft immigration narratives for pro-immigrant reform and the ways in which these strategies consistently fell short. Despite well-intentioned efforts, each strategy failed in part by not confronting the deep history of racism and discrimination against immigrants that essentially makes comprehensive change only possible when the change mechanisms also benefit the political and societal majority. With this recognition, Part III emphasizes that immigrant advocates need to shift the strategy away from a passive normative framing and capitalize on the robust resistance movement currently moving reform conversations between new collaborators. This era of political resistance and awakening has led to new and vibrant connections between constituencies. By focusing on commonality of membership and the power of collaborative action, the road to reform will be smoothed. Part III provides case studies of organizations and movements that have successfully created connectivity between non-traditional partners and exhorts immigrant advocates to consider similar processes. Finally, Part IV provides a roadmap on what the new immigrant rights narrative strategy may contain. The narrative can be crafted through different means, but to be politically successful, it must acknowledge the past incomplete efforts and realize the fervor for change that is now gripping the nation. Moreover, we must critically examine the effects of crafting a narrative, including the common consequence that oppresses a sector of the community through efforts to uplift another sector. As this Article concludes, through this process, we will create a message that unifies diverse communities, actors and groups fighting for fair and just immigration reform.

KJ