Tuesday, March 26, 2019

Immigration and the Democratic Hopefuls

In "Immigration and the Democratic Hopefuls," Andrew Moss on Counterpunch notes that the Democratic presidential candidates to this point: 

"have largely failed to lay out a comprehensive vision of what our immigration policy should be. Some of the announced presidential candidates have, over time, staked out positions on specific issues, such as the status of the Dreamers or the abolition of ICE, but they’ve largely left it to Donald Trump and his allies to set the broader terms of the debate.

If the candidates hope to offer a genuine alternative to the administration’s policies, it’s imperative that they shift the debate from sloganeering about the wall and `open borders' to a consideration of an underlying question: what priorities and values will guide our immigration policy in the coming years? Will we continue along the present path of increased militarization and incarceration, or will we forge policies guided by a vision of a more just society?"

Food for thought as the Democratic hopefuls start their campaign journeys.

KJ

March 26, 2019 in Current Affairs | Permalink | Comments (0)

Chile and Migration: The Global Compact for Safe, Orderly and Regular Migration and More

 

Last week, I got behind in my blogging while I was in Santiago, Chile recruiting international scholars and students, presenting talks on immigration, and meeting with alums and friends of UC Davis School of Law. 

During my visit, it became apparent that immigration -- as well as the United States' college admissions scandal -- was a hot topic.  As discussed in this Migration Policy Institute report, Chile has experienced a national debate on immigration. In response to public concern with Haitian, Dominican, and other immigrants, new President Sebastián Piñera has proposed greater restrictions on immigration.  The consensus appears to be that the Immigration Act of 1975 needs to be reformed; however, the Chilean Congress has been unable to act.

Pc

Pontificia Universidad Católica de Chile

During my visit, I had the privilege of meeting with the deans and faculty at two amazing law schools.  First, I visited Pontificia Universidad Católica de Chile and lectured on judicial review and the U.S. immigration laws.  In this talk, I summarized recent developments in the Supreme Court's review of the constitutionality of the immigration laws and policies.  My ultimate conclusion is that the Court consistently engages in meaningful judicial review of the immigration laws. 

Chile law

Universidad de Chile law school

The next day, I visited the Universidad de Chile law school and delivered the following lecture:

The Global Compact for Safe, Orderly and Regular Migration: The United States and Chile by Kevin R. Johnson. Remarks presented at the Universidad de Chile Law School, March 20, 2019

In December 2019, more than 150 nations approved the Global Compact for Safe, Orderly and Regular Migration  (Global Compact).  Building on the 2016 New York Declaration for Refugees and Migrants, the Compact continues the process of promoting cooperation, coordination, and dialogue on migration in the international community. It identifies a number of objectives and commitments, primarily directed at cooperation and coordination. The Compact also calls for, among other things, nondiscrimination against migrants and providing proof of identity to migrants in a state.

A number of nations, including the United States, Australia, Chile, and the Dominican Republic, declined to sign the Global Compact. As with other international arrangements, a major concern was that the Compact would result in the surrendering of national sovereignty over immigration. Immigration is a controversial -- indeed explosive -- issue in many nations and strong voices often advocate for national sovereignty and the exercise of power over immigration and immigration controls.

More generally, in the United States President Trump has expressed skepticism about international institutions, including and especially the United Nations. In responding to international trade, immigration, and foreign policy generally, the President has consistently and unequivocally emphasized “America First.”  That approach, of course, places primacy on national sovereignty and serves as a frame for all of the U.S. government’s relations with other countries.

 To calm sovereignty concerns with the Global Compact, the Compact did not impose binding obligations on nations but was a non-enforceable promise to cooperate and coordinate migration policies. In fact, the Compact expressly recognized national sovereignty over immigration and enforcement. It specifically provides that:

 "[t]he Global Compact reaffirms the sovereign right of States to determine their  national migration policy and their prerogative to govern migration within their jurisdiction, in           conformity with international law. Within their sovereign jurisdiction, States may    distinguish between regular and irregular migration status, including as they determine           their legislative and policy measures for the implementation of the Global Compact,        taking into account different national realities, policies, priorities and requirements for   entry, residence and work, in accordance with international law."

Global Compact, Paragraph 15

 

Reasons Some States May Have Declined to Join the Global Compact

            Reasons beyond concerns with ceding national sovereignty also likely contributed to some nations declining to join the Global Impact. The following reasons may have contributed to the decision of the United States, to not sign the Compact:

Immigration Regulation Raises Sensitive Domestic Political Issues

Immigration touches on issues of language, culture, and the sense of national identity. Such issues are controversial in the United States. They also are generally thought of as a primarily domestic, not international, concern and the subject of intense internal debate.

The Omnipresent Concern with Mass Migration.

When it comes to immigration, nations in the developed world often worry about mass migration and see a need to exercise control over immigration, with the corollary need for limits on the number of immigrants coming into the country. Such concerns raise controversial economic, political, social, and cultural issues that affect all people of society. Concerns with mass migration in the United States have hindered efforts at domestic immigration reform. Such reform has been discussed for many years. That is true even though it is generally agreed that the current U.S. immigration regime requires reform. The United States has an antiquated immigration system created by the Immigration and Nationality Act of 1952, which was passed by Congress at a time when exclusion and deportation of communists was paramount. These are not the major immigration concerns of the 21st century. Although amended on numerous occasions, the INA remains the basic U.S. immigration law. 

Concerns with the Long Term Impacts of Previous Migration and Refugee Accords.

Some of the nations’ resistance to the Global Compact may be rooted in concerns with the impact of the implementation of previous international accords, such as the United Nations Convention on the Status of Refugees (1951) and the United Nations Protocol Relating to the Status of Refugees (1967) . Those treaties created powerful -- and binding on states -- international protections for noncitizens who flee persecution or have a well-founded fear of future persecution.

In the United States, the U.N. Protocol led Congress to pass the Refugee Act of 1980, which created the modern asylum system in the United States. Concerns with the numbers of asylum seekers in the United States have provoked concern and tough responses, including immigrant detention, family separation, and the return of Central American asylum seekers to Mexico. Such concerns may have contributed to the resistance to the Global Compact.

Inconsistency with Contemporary U.S. Immigration Enforcement Policies

Immigration policies in the United States today focus primarily on immigration enforcement. Besides not being crafted for the realities of modern migration pressures, the policies are not consistent with the humanitarian spirit of the Global Compact.

President Trump has spoken harshly of immigration and immigrants. He has bolstered immigration enforcement measures and has sought to restrict legal immigration. To that end, the Trump administration, among other things, has issued three versions of the Muslim ban, aggressively employed immigrant detention, and fervently advocated building a wall along the U.S./Mexico border. President Trump frequently declares that the nation’s southern border is in “crisis” and has talked about the “invasion” from the South. Such concerns almost certainly led to a general resistance in the United States to the call for migration cooperation in the Global Compact.       

President Trump also has specifically attacked Muslim, Mexican, Salvadoran, and Haitian noncitizens. The verbal attacks have translated into tough immigration enforcement measures directed at these groups. Although some of these measures have provoked controversy and been halted by the courts, many have gone into effect.           

The harsh tone combined with the tough enforcement measures in the United States have frightened immigrant communities, as well as people with affinities for those communities. Besides striking fear into immigrants, which have impacts on their well-being as well as their cooperation with government, the harsh rhetoric and attacks on immigrants has delayed indefinitely much needed congressional reform to the immigration laws.

  

The Need for International Cooperation

Global economic and political pressures fuel migration and affect many nations. No single nation can effectively address migration pressures and flows on its own. In the future, nations must recognize the following in addressing migration

In addition, immigration law and policy affects the rights and well-being of human beings. Harsh policies adversely impact human lives. Nations must work to create humane, as well as manageable and efficient, immigration policies.

At the same time, migration of people from other countries bring changes to the receiving nations. Efforts need to be made to focus not on simply admission and removal but also on policies that facilitate the integration of immigrants into society.          

The Global Compact was designed to facilitate much-needed coordination and cooperation on migration matters. Multilateral work is much needed as nations around the world undoubtedly will continue to experience migration flows. Although some of the migrants are refugees fleeing civil strife or fearing persecution, migration also represents a response to economic opportunity, political freedoms, and family reunification.

Put simply, to effectively manage migration, the international community must work together. Building border walls between nations will not end immigration or the pressures for migration. Instead, international arrangements like the Global Compact offer the hope of the future – to effectively, efficiently, and humanely manage migration in the 21st century.

KJ

March 26, 2019 in Current Affairs | Permalink | Comments (0)

Monday, March 25, 2019

More on Nielsen v. Preap: Supreme Court's Immigrant Detention Ruling May Have Small Impact

This commentary was posted today on Law360:

Law360 (March 25, 2019, 1:54 PM EDT) --
Kevin Johnson %>
Kevin Johnson
In ramping up immigration enforcement, the Trump administration has expanded the use of detention. As with many of his policy initiatives, President Donald Trump has added his own rhetorical and policy flourish to aggressive enforcement efforts.

Through an executive order issued within days of his inauguration, he declared the end of “catch and release” of noncitizens (i.e., allowing them a possibility of bonding out of custody pending their removal hearings) and later instituted a policy of separating Central American parents and children in immigration detention. This latter policy provoked a national — and bipartisan —furor that led to its speedy abandonment.

Nonetheless, immigrant detention continues to be central to the Trump administration’s response to Central American asylum seekers. At a critical juncture in contemporary immigration enforcement, the U.S. Supreme Court’s 5-4 decision last week in Nielsen v. Preap[1] expanded executive power to detain immigrants.

Along with noncitizens associated with terrorism, “criminal aliens” are often targeted for harsh treatment under the U.S. immigration laws. A large portion of the removals from the United States of lawful permanent residents each year are of immigrants convicted of crimes. The executive branch, including when Barack Obama was president, lost in the Supreme Court several removal cases based on relatively minor criminal convictions.[2]

Congressional amendments in 1996 toughened the immigration statute to require mandatory detention of certain categories of “criminal aliens." In Demore v. Kim (2003),[3] the Supreme Court upheld the lawfulness of detention of immigrants convicted of certain crimes pending their removal from the United States under 8 U.S.C. § 1226(c).

Less than two years ago, the court grappled with the right to a bond hearing for immigrants convicted of crimes placed in detention in Jennings v. Rodriguez (2018);[4] after holding re-argument in the case, the court, in an opinion by Justice Samuel Alito, held that the statute did not require a bond hearing and remanded the case to the court of appeals to address the constitutionality of mandatory detention.

The contemporary use of detention by the Trump administration heightened the attention paid to the Supreme Court’s review of the complicated statutory question of immigrant detention in Nielsen v. Preap. Entering the United States as a refugee from Cambodia in 1981, Mony Preap had several convictions, mostly small-time drug convictions.

Released from criminal custody in 2006, he was not arrested by the U.S. immigration authorities until 2013. The U.S. government placed two other plaintiffs, Juan Lozano Magdaleno (who entered the United States from Mexico in 1974) and Eduardo Vega Padilla (a Mexican citizen who entered the country in 1966), into immigrant detention five and 11 years, respectively, after their release from state custody.

Two class actions and a group of habeas corpus cases challenged the lawfulness under the immigration statute of U.S. government arrests of lawful permanent residents long after release from state custody. Importantly, the lawsuits did not challenge the statute on constitutional grounds but only claimed that the detention was not authorized by the statute.

8 U.S.C. § 1226(c) provides that the U.S. government “shall take into custody any alien [described in subsequent sub-sections as being convicted of certain crimes and being related to persons engaged in `terrorist activities’] ... when the alien is released, without regard to whether the alien is released on parole, supervised release or probation ....” (emphasis added). The U.S. Court of Appeals for the Ninth Circuit had held that the statute only authorized detention immediately upon the release of the immigrant from state custody.

In immigration cases that come before the Supreme Court, the issues raised generally boil down to the interpretation of the immigration statute, which is famous for its complexity, and, when appropriate, the deference properly afforded the agency’s interpretation. In the end, the proper textual interpretation of Section 1226(c) was at the center of the disagreement among the justices in the case of Nielsen v. Preap. The court found that the statutory language was clear and that resort to deference doctrines was unnecessary.

Justice Alito, joined in full by Chief Justice John Roberts and Justice Brett Kavanaugh, and in large part by Justices Clarence Thomas and Neil Gorsuch, held that the Ninth Circuit’s interpretation of Section 1226(c) was contrary to the plain text and structure of the statute. The court instead found that the statute allowed detention even if the U.S. government did not assume custody until after — indeed long after — release from state custody.

Telegraphing the final outcome, Justice Alito’s opinion began as follows:

Aliens who are arrested because they are believed to be deportable may generally apply for release on bond or parole while the question of their removal is being decided ... Congress has decided, however, that this procedure is too risky in some instances. Congress therefore adopted a special rule for aliens who have committed certain dangerous crimes and those who have connections to terrorism. (emphasis added).

Thus, in interpreting the statutory language, the court emphasizes at the outset the importance of the fact that the detention at issue involves immigrants who “committed certain dangerous crimes” and those with “connections to terrorism,” two particularly disfavored groups of noncitizens under the immigration laws.

In concluding that the plain language of Section 1226(c) allowed immigrant detention long after release from state custody, the majority engaged in a textual analysis that only a grammarian could love. The majority painstakingly reviewed the language of the statutory provision in question and emphasized that it applies to noncitizens convicted of crimes as well as relatives of terrorists.

Relying on, among other things, definitions from a couple of dictionaries, and a book on interpretation co-authored by the late Justice Antonin Scalia (A. Scalia & B. Garner, "Reading Law: The Interpretation of Legal Texts" (2012)), the majority found that the immigrants were subject to mandatory detention “even if (as with respondents) the Secretary did not arrest them immediately `when’ they were `released.’” Justice Alito justified that conclusion by noting that “respondents’ unsparing deadline will often be missed for reasons beyond the Federal Government’s control,” (citation omitted), such the refusal of state and local government to cooperate with federal immigration officials.

Among the cases that the majority relied on in support of its interpretation of 8 U.S.C. § 1225(c) was its decision in United States v. Montalvo-Murillo (1990).[5] In that case, the court held that “a provision that a detention hearing ‘shall be held immediately upon the [detainee’s] first appearance before the judicial officer’ did not ban detention after a tardy hearing.” (citation omitted).

The majority concluded that, because the statute was not ambiguous, the canon of construction calling for the interpretation of the statute to avoid constitutional questions did not apply. In reaching that conclusion, the court relied on Jennings v. Rodriguez, in which the court reached a similar conclusion in finding that the statutory provision in question did not provide for a periodic bond hearing for immigrants held in detention.

Going out of its way to emphasize that no constitutional questions were before the court, the majority concluded its analysis of the statute as follows: “While respondents might have raised a head-on constitutional challenge to § 1226(c), they did not. Our decision today on the meaning of that statutory provision does not foreclose as-applied challenges — that is, constitutional challenges to applications of the statute as we have now read it.” Based on that invitation, expect future as-applied constitutional challenges.

For a plurality of the court, Justice Alito, joined by the chief justice and Justice Kavanaugh, relied on Jennings v. Rodriguez to conclude that the immigration statute allowed for judicial review. As in that case, the immigration statute’s framework could be challenged even though the statute bars review of discretionary judgments by immigration officials in individual removal cases. In addition, Justice Alito reasoned that, because there was at least one named plaintiff with a live case when the class was certified, the case was not moot.

Although agreeing with the majority’s analysis of Section 1226(c), Justices Thomas and Gorsuch disagreed on the issue of judicial review. Justice Thomas reiterated what he said in his concurrence in Jennings v. Rodriguez — that the court lacked jurisdiction of class actions under 8 U.S.C. § 1252(f)(l), which he reads as barring such review.

Justice Kavanaugh “wrote separately to emphasize the narrowness of the case before us ...” He emphasized that the sole question before the court was the interpretation of the statute to determine whether the executive branch had “to immediately detain the noncitizen when the noncitizen is released from custody ..” (emphasis in original).

Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, dissented. As highlighted in news reports on the decision, Justice Breyer firmly rebutted Justice Kavanaugh’s claim that the issue decided by the court was “narrow”:

Under the Government’s view, the aliens subject to detention without a bail hearing may have been released from criminal custody years earlier, and may have established families and put down roots in a community. These aliens may then be detained for months, sometimes years, without possibility for release; they may have been convicted of only minor crimes ... Moreover, for a high percentage of them, it will turn out after months of custody that they will not be removed from the country because they are eligible to receive a form of relief from removal ... Thus, in terms of potential consequences and basic American legal traditions, ... the question before us is not a “narrow” one ...

Justice Breyer’s dissent emphasizes that the language and structure of the statute, as well as the canon of constitutional avoidance, all undercut the majority’s interpretation of the statute. He emphasized the importance of the question because, under the majority’s interpretation, the immigrant would be detained without the opportunity to bond out of custody — and thus would be detained even if not determined to be a flight risk or a danger to the community.

Like the majority, Justice Breyer closely parsed the language of the statute. He, however, did not find the interpretation “plain” and reached a contrary conclusion. His interpretation was that “[t]he words `when the alien is released’ require the Secretary to detain aliens under subsection (c) within a reasonable time after their release from criminal custody — presumptively no longer than six months.”

Offering an interesting insight into the former law professor’s mind, Justice Breyer employed an analogy of a recipe for cooking an Angus steak to illustrate his point of statutory construction. Justice Breyer also would invoke the canon of constitutional avoidance to interpret the statute to avoid constitutional questions that might be raised in the event of an arrest years after release from state custody and the denial of a bond hearing.

Justice Breyer concluded that “[i]n my view, the Court should interpret the words of the statute to reflect Congress’ likely intent, an intent that is consistent with our basic values ... I fear that the Court’s contrary interpretation will work serious harm to the principles for which American law has long stood.”

Nielsen v. Preap is but another step in the expansion of executive power over immigrant detention. The court so held in a time when the U.S. government is aggressively detaining immigrants and promises to do more. Although continuing that trend, the holding will not likely have a huge impact on immigration law and immigration detention.

As Justice Kavanaugh made clear, the court did not address the constitutionality of detention without the possibility of bond, an issue that it remanded to the lower court in Jennings v. Rodriguez. The constitutional question thus remains alive and likely will be before the court again.

More generally, all of the justices carefully parsed the text of the statute and considered the statutory structure. They took the task of judicial review seriously. In that way, the court’s approach continues the court’s move toward the “normalization” of immigration law, applying ordinary methods to interpreting the immigration statute.



Kevin R. Johnson is the dean of the University of California, Davis School of Law.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.


[1] https://casetext.com/case/nielsen-v-preap-2

[2] See, for example, Moncrieffe v. Holder, 569 U.S. 184 (2013)

(vacating removal order based on conviction for possession of small amount of marijuana) https://www.law.cornell.edu/supct/cert/11-702.

[3] 503 U.S. 510 (2003)  https://www.law.cornell.edu/supct/html/01-1491.ZS.html.

[4] 138 S. Ct. 830 (2017) https://www.supremecourt.gov/opinions/17pdf/15-1204_f29g.pdf.

[5] 495 U.S. 711 (1990) https://caselaw.findlaw.com/us-supreme-court/495/711.html.
 
KJ

March 25, 2019 in Current Affairs | Permalink | Comments (0)

The promise and peril of the Dominican baseball pipeline

Raceball
It is almost time for the opening of the Major League Baseball season.   As has been noted, the MLB has become increasingly Latinx, in no small part due to the pipeline of players from the Dominican Republic.

Rob Ruck on The Conversation looks at the pipeline of baseball players from the Dominican Republic. He notes that "Latinos will comprise about 30 percent of Major League Baseball rosters on Opening Day, in large part because MLB has systematized its recruiting and developmental programs in the Caribbean over the last 25 years." In his book Raceball, Ruck analyzed how this system operates: 

"[P]rospectors scour the Dominican Republic for the next nuggets of talent, the way players are selected and groomed at a young age, and the way a signing bonus in the thousands of dollars can transform an impoverished family’s life. Few Dominican ballplayers, however, actually make it to the big leagues. Enmeshed in a system that encourages them to specialize in baseball at an early age, they’re left with little to fall back on when baseball doesn’t pan out."

 The first generations of Dominican major league stars were players like Felipe Alou, Juan Marichal, and Manny Mota.  And, as they say, the rest is history.

KJ

March 25, 2019 in Books, Current Affairs, Sports | Permalink | Comments (0)

Immigration Law & Border Enforcement: A One Week Summer Program for Law Students

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Hofstra Law is once again offering its Immigration Law and Border Enforcement Program. This one-week 3-credit class for law students runs from Sunday May 19 to Sunday May 26, 2019.

It will be held in San Diego, California, and is co-sponsored by UC San Diego's Center for Comparative Immigration Studies.

The course is open to law students around the country. The course involves not just reading and lectures, but field trips to the border, the U.S. consulate in Tijuana, a detention center,  immigration court, and federal court. Students will have the opportunity to meet with CBP officers, ICE lawyers, Department of State consular officials, and EOIR judges, as well as immigration attorneys and advocates.

Interested students should apply by March 29, 2019.

-KitJ

March 25, 2019 in Current Affairs | Permalink | Comments (0)

Immigrant of the Day: Tacko Fall (Senegal), college student and basketball player

 

Basketball is now an international game.  And the NCAA tournament has featured some excellent players from all over the world.  One of them played in the epic game between Duke, the number one seed in the entire tournament, and the University of Central Florida.  After an amazing last five minutes of play, Duke won the game by the thinnest of margins, 77-76.

Born in Senegal,  Tacko Fall (and here) plays college basketball for the UCF. At 7 ft 6 inches, he is one of the tallest living people in the world.  In the game against Duke, Fall had a huge impact and helped UCF almost pull off what would have been a huge upset.

KJ

March 25, 2019 in Film & Television, Sports | Permalink | Comments (0)

Immigration Article of the Day: Silence and the Second Wall by Ming Hsu Chen and Zachary New

Chen

Ming Hsu Chen

Silence and the Second Wall by Ming Hsu Chen and Zachary New

Abstract

The Trump administration has made its clarion call “build the wall.” From the start of the presidential campaign to the government shutdown to the declaration of a national emergency, he has made the wall the centerpiece of his immigration enforcement strategy. While the public attention has been riveted on these dramatic episodes at the southern border of the U.S., many more subtle challenges to legal migration have been introduced and implemented. Collectively, these constitute a second wall – one that is invisible to all but the few who have noticed it. This essay explores the distinctive challenges being posed to legal migration and the complexity of countering them through traditional means of resistance. Part I provides background on legal migration and the immmigration bureaucracy. Part II explains the nature of the second wall policies. Part III turns to the nascent resistance efforts. The essay concludes with suggestions on how to restore the federal government’s mission of serving immigrants and proposes strategies for scaling the second wall.

KJ

March 25, 2019 in Current Affairs | Permalink | Comments (0)

Sunday, March 24, 2019

The Battle Over DACA Continues: DACA Flight Attendant Placed in Detention, Released

The battle over DACA continues.  And the Trump administration is taking prisoners.

Reis Thebault for the Washington Post reports on the case of Selene Saavedra Roman, a DACA recipient from Peru who recently was detained by ICE after leaving the United States as required by her employer, an airlines.  She has lived in the United States for 25 years, since she was 3.

Saavedra Roman's is a flight attendant for a regional company, Mesa Airlines.  According to the Post article, she told the company she was a DACA beneficiary and did not want to fly internationally. Yet, in February, Mesa had her fly to Mexico. She told the company of her concerns and was assured that she would not have trouble reentering the United States.

On February 12, U.S. officers detained Saavedra Roman after she landed in Houston on her return flight. She remained in detention for another six weeks before her release last Friday evening.

"[A]dvocates are pointing to her case as an example of how the Trump administration’s attempts to end DACA — and the tug of war with the courts that followed — have confused program beneficiaries, their families, government agencies and private employers, muddling an already complex web of immigration policies."

KJ

March 24, 2019 in Current Affairs | Permalink | Comments (0)

Law School Immigration Clinics file suit in support of activist

News from Miami!

The University of Miami Law School’s Immigration Clinic, along with a coalition of immigrant rights organizations, filed a lawsuit in the Southern District of Florida, seeking release and a stay of deportation for immigrant rights activist Claudio Rojas.  Rojas was featured in the documentary film, “The Infiltrators,” which is critical of the U.S. government's immigrant detention policies.

According to the lawsuit, U.S. Immigration and Customs Enforcement detained Rojas on February 27 when he appeared for a routine immigration appointment. His abrupt detention came at the heels of the Sundance Film Festival premiere of the film, “The Infiltrators,” which features Rojas’s activism and criticism of ICE detention policies.

The case, Rojas v. Moore, is awaiting a decision on an emergency motion before Judge James Lawrence King.  ICE is poised to deport Rojas as soon as March 30. An emergency request for a temporary stay and release order is pending.

“ICE’s power is not limitless,” said Professor Rebecca Sharpless, director of the Immigration Clinic, who argued the emergency motion. “When ICE rushes to deport someone without following the law, courts must act. The stakes are just too high.”

 “The rule of law in this country includes, first and foremost, the Constitution,” said Alina Das and Jessica Rofe of the New York University Immigrant Rights Clinic, co-counsel on the suit. “ICE is not above the law. The First Amendment protects activists like Claudio from being targeted for detention and deportation because they speak out. No one wants to live in a country where the government can so easily silence dissent.”

KJ

March 24, 2019 in Current Affairs, Immigration Law Clinics | Permalink | Comments (0)

The Restless Books Prize for New Immigrant Writing

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The Restless Books Prize for New Immigrant Writing

  • For an outstanding debut literary work by a first-generation immigrant

  • Winner receives $10,000 and publication by Restless Books

  • To be awarded for fiction and nonfiction in alternating years

  • Submissions for the 2019 Prize in Nonfiction are open from September 1, 2018 to March 31, 2019 

  • The winner of the 2018 Prize in Fiction is Priyanka A. Champaneri for her novel The City of Good Death. Read more here.

  • The winner of the 2017 Prize in Nonfiction is Grace Talusan for her memoir The Body Papers. Read more here

  • The 2016 winner is Deepak Unnikrishnan for his novel Temporary People. Read more here.

 

introduction

The ethos of the modern world  is defined by immigrants. Their stories have always been an essential component of our cultural consciousness, from Isaac Bashevis Singer to Isabel Allende, from Milan Kundera  to Maxine Hong Kingston. In novels, short stories, memoirs, and works of journalism, immigrants have shown us what resilience and dedication we’re capable of, and have expanded our sense of what it means to be global citizens. In these times of intense xenophobia, it is more important than ever that these boundary-crossing stories reach the broadest possible audience.

With that in mind, we are proud to present The Restless Books Prize for New Immigrant Writing. We are looking for extraordinary unpublished submissions from emerging writers of sharp, culture-straddling writing that addresses identity in a global age. Each year, a distinguished panel of judges will select a winning manuscript to be published by Restless Books. We can’t wait to read and share what the new voices of the world have to say.

—Ilan Stavans, Publisher

Click here for details.

KJ

March 24, 2019 in Books, Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Detained Without Due Process: When Does it End? by Elizabeth Knowles

Elizabeth+Knowles+2.jpg

Detained Without Due Process: When Does it End? by Elizabeth Knowles, University of Detroit Mercy Law Review, Vol. 96, 2018

Abstract

It’s a Tuesday morning. I walk into the Northeast Ohio Correctional Center with my clinic students to give our legal orientation to the detainees in Immigration and Customs Enforcement (“ICE”) custody who signed up to attend. We get our visitors badges, go through security, and wait to be escorted back to the large visitation room where the weekly orientations take place. The air-lock door opens and we walk into a room of approximately 60 or 70 men in beige jumpsuits. I set down my bag of intake forms and pro se handouts and greet everyone loudly in Spanish, making sure everyone in the back of the room can hear. “Buenos dias!” I scan the room and see familiar faces that are present week after week with no court date and no explanation of what is next for them. I start to survey the room. “Raise your hand if you are waiting for a credible fear interview. Raise your hand if you’ve already passed your interview. Raise your hand if you have applied for parole. Keep your hand up if your parole request was granted.” All the hands go down. After I ask my initial questions, individuals walk up with parole denials in their hands, some with no boxes checked at all, others approach me with 90-day continued detention determination notices -- confused faces surround me, asking what the notices say, what they mean. Many are seeking asylum and I know that most of them won’t have lawyers and will be detained until their proceedings are complete -- likely for several months and some beyond a year.

KJ

March 24, 2019 in Current Affairs | Permalink | Comments (0)

Saturday, March 23, 2019

George Mason receives $1.1 million from the Koch Foundation for research on immigration, labor market

From a press item from George Mason University:

"George Mason University’s Schar School of Policy and Government has received a $1.1 million gift from the Charles Koch Foundation to pursue research on immigration, population change and labor markets.

The five-year grant supports Mason’s Center for the Study of Social Change, Institutions and Policy, led since 2003 by Professor Jack A. Goldstone. The grant will fund research by at least five new PhD fellows, center operating expenses and—beginning in fall 2019—an annual workshop on the impact of demography and migration."

KJ

March 23, 2019 in Current Affairs | Permalink | Comments (0)

Urban Institute: "Part of Us: A Data-Driven Look at Children of Immigrants" (March 2019)

Logo

The Urban Institute has released "Part of Us: A Data-Driven Look at Children of Immigrants" (March 2019):

"Shedding light on the children of immigrants who are shaping this country’s future March 14, 2019 One out of every four children in the US has at least one immigrant parent. Most are US citizens and the majority have at least one parent who is a US citizen. These children are America’s children; the nation’s future is inextricably linked to theirs. Their ability to learn, grow, and thrive is a measure of what this country will become.

The characteristics and realities of children of immigrants and their families are far more diverse and complex than suggested by stereotypes in public debate. These nine charts aim to tell a more complete story of who these children are, dispelling myths and shedding light on the diversity of their experiences, characteristics, and backgrounds."

The report includes data showing the following:

One-Quarter of US Children Are Children of Immigrants

Most Children of Immigrants Have US-Citizen Parents

Children of Immigrants’ Parents Are More Likely to Have Less Than a High School Education, but a Large Share Have a Four-Year College Degree

Children of Immigrants’ Families Work Hard, but They Are More Likely to Have Low Incomes

Children of Immigrants’ Parental Country of Origin Varies by State and Region

Most Children of Immigrants Have One or More Immigrant Parents Who Have Been in the US for Many Years

Greatest Increase in the Share of Children Who Are Children of Immigrants Has Occurred in Some Unexpected Parts of the Country

Children of Immigrants Are More Likely to Be Bilingual Than Other Children

Children of Immigrants Are More Likely to Live in Two-Parent Families

Policies Affecting Children of Immigrants Should Be Rooted in Evidence

KJ

March 23, 2019 in Current Affairs | Permalink | Comments (0)

Call for Papers: AILA Law Journal Fall 2019 Edition

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The AILA Law Journal delivers first-rate analysis and commentary on immigration law and policy.
 
Submission Guidelines: Articles should run 4500-7000 words, lightly cited. All articles must be original. However, authors and columnists may reproduce their articles and columns, and place them on their websites, with attribution to and after publication in the AILA Law Journal.
 
All articles must be submitted via email in Word, as an attachment. All charts, graphs, and, tables should be typed or professionally typeset and must be submitted via email. Articles should not use extensive endnotes. Do not put citations in the text; rather, use endnotes only. 
 
Submissions should include a clearly written, short author biography, author address, direct phone number, and email address. Authors should provide a two- or three-sentence summary of the article. Articles should be written in neutral, third-person voice. “You,” “I,” “We,” and similar terms are discouraged.
 
Articles must appear as continuous prose, with full sentences. Excessive use of quotation marks should be avoided. They should not be used when referring to a few ordinary words of a speaker or writer. They are appropriate for coined phrases, but only those that are unfamiliar, and only on first reference.
 
Submission Deadline: June 1, 2019 Submit to: ailalawjournal@aila.org  
 
If you have questions, please contact Shoba Sivaprasad Wadhia, the Editor-in-Chief, or Danielle Polen, Editor, of AILA Law Journal. They may be reached at:
 
Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar | Penn State Law   Director, Center for Immigrants’ Rights Clinic  | Clinical Professor of Law The Pennsylvania State University | University Park Phone: 814-865-3823 | Email: ssw11@psu.edu
 
Danielle M. Polen, Esq., Director, Publications and Online Resources American Immigration Lawyers Association Direct: 202.507.7637 | Email: dpolen@aila.org

KJ
 
 

March 23, 2019 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Detainee Transfers and Immigration Judges: ICE Forum-Shopping Tactics in Removal Proceedings by Roger Grantham, Jr.

Detainee Transfers and Immigration Judges: ICE Forum-Shopping Tactics in Removal Proceedings by Roger Grantham, Jr., Georgia Law Review, Vol. 53, No. 1, 2018

Abstract

U.S. immigration policy and ICE tactics have been greatly scrutinized over the past year. While many criticisms focus on border policy and the conditions of detention, scholars have also raised concerns over ICE’s unfettered discretion to transfer detainees to different detention centers. Not only may ICE transfer detainees anywhere in the country, ICE has gradually expanded this practice. Now, on average, every detainee is transferred at least once each year. ICE, however, is not the sole point of criticism for immigration advocates. Recently, Immigration Judges’ decisions have been scrutinized for their lack of consistency. Wide variation in IJ decision making indicates that the judge assigned to a case heavily influences the likelihood of a favorable outcome to ICE. The intersection of these two distinct problems—immigration detainee transfers and inconsistent IJ decisions—effectively allows ICE to forum shop by transferring detainees to detention centers with IJs who are likely to issue rulings favorable to ICE. This amounts to a crisis of justice, as ICE may transform facially neutral proceedings into judicial rubber stamping for the case outcomes ICE desires.

KJ

 

March 23, 2019 in Current Affairs | Permalink | Comments (0)

Friday, March 22, 2019

Supreme Court Grants Cert in Identity Fraud/Immigration Case

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Earlier this week, the Supreme Court granted cert in a new immigration case, Kansas v. Garcia.  The issues presented in the case:

(1) Whether the Immigration Reform and Control Act expressly pre-empts the states from using any information entered on or appended to a federal Form I-9, including common information such as name, date of birth, and social security number, in a prosecution of any person (citizen or alien) when that same, commonly used information also appears in non-IRCA documents, such as state tax forms, leases, and credit applications; and

(2) if IRCA bars the states from using all such information for any purpose, whether Congress has the constitutional power to so broadly pre-empt the states from exercising their traditional police powers to prosecute state law crimes. 

Here is how Amy Howe on SCOTUSBlog describes the case:

"In Kansas v. Garcia, the justices will review a ruling by the Kansas Supreme Court that reversed the convictions of Ramiro Garcia and two other defendants for identity theft after they used other people’s Social Security numbers. The federal Immigration Reform and Control Act bars employers from knowingly employing undocumented immigrants. The act also requires employees to verify that they are eligible to work in the United States by submitting a Form I-9, and it strictly limits the use of information on or attached to a Form I-9. Because the Social Security numbers that the defendants were using appeared on their I-9s, the state court reasoned, the prosecution was trumped by the IRCA, even if the Social Security numbers also appeared on the defendants’ tax-withholding forms.

The justices asked the U.S. solicitor general to weigh in last spring, and in December the federal government agreed with Kansas that the court should review the case. Even if states cannot use the information contained in a Form I-9, the government contended, they can still prosecute someone using information from other documents. Today the court announced that it had granted Kansas’ request for review; the case is likely to be argued in the fall."

March 22, 2019 in Current Affairs | Permalink | Comments (0)

Immigration Detention in California

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California Attorney General Xavier Becerra

Under one of California's "sanctuary" laws, the California Attorney General was required to issue a report on immigrant detention in the state.  As described in the first report,

"California is one of the first states to examine the daily operations of detention facilities housing civil immigration detainees.  After public reports of distressing conditions and several deaths in detention facilities surfaced with little to no transparency, the California Legislature enacted Assembly Bill 103 (AB 103) in June 2017.  Under AB 103’s 10-year mandate, the California Department of Justice is charged with reviewing and reporting back to the Legislature, the Governor, and the public about the conditions of confinement, including how those conditions impact due process, and the circumstances around apprehension and transfer of detainees in public and privately operated locked detention facilities housing immigration detainees in California."

The conclusion of the executive summary:

"Our review found that the detainee experience varies drastically within and across facilities.  Common issues among a number of facilities, however, are the following:

Restrictions on Liberty:  Immigration detainees in California, whether housed in jails or private facilities, have extremely limited freedom of movement.  Some detainees may be confined to cells for 22 hours a day, while others in dormitory-style housing have greater ability to move about their housing units.  Facilities’ use of force and search policies, and harsh disciplinary practices also affect detainee liberty, sometimes resulting in restrictions that are unnecessarily severe in relation to detainees’ backgrounds and the purpose of their confinement, or imposing a chilling effect on immigration detainees’ perception of their freedom of movement.

Language Barriers:  For a vast number of individuals held in immigration custody in California, English is not their primary language.  While some orientation material and postings may be available in English and Spanish, and many facilities do employ Spanish-speaking staff, no facility has staff who are able to communicate in all the languages spoken by immigration detainees.  Lack of bilingual staff and failure to access alternative language services hinder both the staff’s ability to convey facility rules to detainees, and detainees’ ability to understand those rules.  This can lead to discipline or treatment by staff that appears arbitrary and abusive, and prevents facilities from meeting detainees’ legitimate needs.  It also compromises confidentiality because detainees must rely on other detainees to communicate with staff.

Issues with Access to Medical and Mental Health Care:  While medical and mental health care vary across facilities, common issues we found include medical record accuracy and accessibility, nurses practicing outside their legal scope of practice, superficial medical examinations, delayed or inadequate medical care, inadequate mental health staffng and services, and unsafe suicide watch and disciplinary isolation (solitary confnement) practices. 

Obstacles to Contacting Family and Other Support Systems:  Detainees’ ability to stay in contact with family and friends is difficult while in detention.  Many of the detention facilities housing immigrants in California are located far from city centers, with limited access by public transportation.  None of the adult county jail facilities permit contact visits (without a glass barrier between the visitor and the detainee) with family or friends.  Contact via telephone is limited by the facility’s scheduled times for phone calls, the high cost of making calls, and technical barriers.

Barriers to Adequate Representation:  Individuals in immigration proceedings do not have a right to appointed counsel.  Detainees face several challenges to obtaining counsel or adequately representing themselves.  Not all detention facilities in California offer consistent legal orientation programs, and when detainees are able to contact pro bono counsel numbers provided by facilities, many organizations are unable to take on new clients.  Further, many facilities do not facilitate confidential legal phone calls for detainees who have or are seeking counsel or advice.  Legal materials provided to detainees are difficult to access, are rarely offered in languages other than English and Spanish, and may be out of date.
These challenges are exacerbated by federal detention standards, which are designed for criminal incarceration.  Those standards fail to meet the unique needs of individuals in immigration detention, such as their lack of government-funded counsel, unique mental health issues, and significant language and cultural barriers.  Cal DOJ will continue to bring transparency to the issue of immigration detention through these reports."

KJ 

 

 

March 22, 2019 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Kari Hong, 10 Reasons Why Congress Should Defund ICE’s Deportation Force

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10 Reasons Why Congress Should Defund ICE’s Deportation Force

March 22, 2019 in Current Affairs | Permalink | Comments (0)

Normative Theory of Immigration Working Group

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Barbara Buckinx                      Stephanie J. Silverman

This post recently appeared on the Immigration Law Professors listserve:

NTIWG Invitation for New Members 

 

The Normative Theory of Immigration Working Group is a collective of scholars working at the intersections of migration studies, policy studies, and political theory. Some or all of the NTIWG meet semi-regularly on Skype to discuss a Member’s work in progress that has been pre-circulated. Such works range from book proposals to grant write-ups, with the majority being lately comprised of penultimate drafts of journal articles or book chapters.  

 

Under the guidance of conveners Barbara Buckinx (Princeton University) and Stephanie J. Silverman (University of Toronto), the NTIWG has grown to include around 25 Members who participate remotely and as their schedules allow. The conveners constitute the NTIWG as a welcoming, friendly, and low-key commitment that ebbs and flows alongside the school year and other commitments. The collective ethos of workshopping that animates the Group has led to special issues of peer-reviewed journals, edited collections, conference panels, and other opportunities for Members. 

 

After 6 years of growing the NTIWG through word of mouth, the conveners wish to formally invite new Members to express interest in joining the collective. We welcome interest from researchers on all aspects of migration and mobilities who self-identify as political theorists or philosophers looking at the ethics of migration, broadly understood.  This formal invitation reflects both the conveners’ wish to emphasize the inclusive and collaborative nature of NTIWG, and the expanding, more diverse, and exciting interest in this field of study. We particularly welcome emerging scholars and later-year PhD students. 

 

If you would like to learn more about the NTIWG, please email Barbara (bbuckinx@princeton.edu) and Stephanie (stephanie.silverman@utoronto.ca).
 
KJ

March 22, 2019 in Current Affairs | Permalink | Comments (0)

Newly Arriving Families Not Main Reason for Immigration Court's Growing Backlog

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President Trump has blamed the "invasion" of Central American families for the backlog in the immigration courts.  The latest TRAC Immigration report places that claim in serious question.

Newly Arriving Families Not Main Reason for Immigration Court's Growing Backlog

The Immigration Court backlog continues to rise. As of February 28, 2019, the number of pending cases on the court's active docket topped eight hundred and fifty-five thousand (855,807) cases. This is an increase of over three hundred thousand (313,396) pending cases over the backlog at the end of January 2017 when President Trump took office. This figure does not include the over three hundred thousand previously completed cases that EOIR placed back on the "pending" rolls that have not yet been put onto the active docket.

 

KJ

March 22, 2019 in Current Affairs | Permalink | Comments (0)