Sunday, June 30, 2019
In the New York Review of Books, Andrea Pitzer provides a "chilling exploration of the history of mass detention without trial, particularly before the Holocaust" (NYT culture reporter Michael Cooper). The historical perspective is timely perspective on the recent debate (additional smart commentary here and here) over whether to call the US border detention facilities "concentration camps."
At the heart of such policy is a question: What does a country owe desperate people whom it does not consider to be its citizens? The twentieth century posed this question to the world just as the shadow of global conflict threatened for the second time in less than three decades. The dominant response was silence, and the doctrine of absolute national sovereignty meant that what a state did to people under its control, within its borders, was nobody else’s business.
After the harrowing toll of the Holocaust with the murder of millions, the world revisited its answer, deciding that perhaps something was owed to those in mortal danger. From the Fourth Geneva Convention protecting civilians in 1949 to the 1989 Convention on the Rights of the Child, the international community established humanitarian obligations toward the most vulnerable that apply, at least in theory, to all nations.
The twenty-first century is unraveling that response. Countries are rejecting existing obligations and meeting asylum seekers with walls and fences, from detainees fleeing persecution who were sent by Australia to third-party detention of Manus and Nauru to blocking Syrian refugees from entering Hungary. While some nations, such as Germany, wrestle with how to —more and more have become resistant to letting them in at all. The latest location of this unwinding is along the southern border of the United States.
Cyrus D. Mehta: Can the Arbitrary and Capricious Standard Under the Administrative Procedure Act Save DACA?
Yes, the Supreme Court will be deciding the lawfulness of the Trump administration's decision to rescind DACA, which three lower courts enjoined. Over the coming weeks and months, expect a fair amount of commentaries on DACA in the Supreme Court
Cyrus Mehta on The Insightful Immigration Blog ("Can the Arbitrary and Capricious Standard Under the Administrative Procedure Act Save DACA?") sees one possibility for saving DACA in the application of the "arbitrary and capricious" standard in was done the Census case written by Chief Justice John Roberts, who was joined on the issue by the four liberal justices.
Immigration Article of the Day: Defending Refugees: A Case for Protective Procedural Safeguards in the Persecutor Bar Analysis by Charles Ellison
Defending Refugees: A Case for Protective Procedural Safeguards in the Persecutor Bar Analysis by Charles Ellison, Georgetown Immigration Law Review, Vol. 33, p. 213, 2019
For refugees and asylum seekers, application of the so-called persecutor bar is tantamount to a death sentence. However, the Board of Immigration Appeals -- without any real deliberation--has arrived at an interpretation of a generic-relief, burdenshifting regulation to allow for application of the persecutor bar based upon very little evidence. Even mere membership in a group with a poor human rights record has been held sufficient to switch the burden of proof and apply the bar. While the recent holding of Matter of Negusie, 27 I&N Dec. 347 (June 28, 2018) can be read and understood largely as a victory for refugees on the question of the duress defense to the bar, that decision is under review by the AG. Additionally, more work is needed to solidify capacious procedural safeguards in the application of the bar ab initio before adjudicators even reach questions of duress. Safeguards are crucial because the current procedures allow adjudicators to apply the bar merely where there is possible assistance in persecution. Given the dearth of past scholarly attention devoted to procedural application of the persecutor bar, this article aims to contribute to this nascent, timely, and largely-untouched discussion. I argue here that it is only where the record contains a preponderance of the evidence to allow an adjudicator to find actual assistance in persecution -- and the applicant is given fair notice and opportunity to respond--that the statute, case law, and international law allow the persecutor bar to be applied.
Saturday, June 29, 2019
As the detention of child migrants continues to dominate the news, U.S. companies are taking different approaches to the issue.
Highlights, that venerable magazine from pediatrician's offices over the decades, issued the following public statement denouncing the detention of children:
Meanwhile, Wayfair, which has been supplying beds to detention facilities, has been under fire from employees, customers, and left-leaning politicians over it's complicity with child detention. The company's stock dipped only slightly when the news broke on June 25.
Kit Johnson: Democrats debate the repeal of Section 1325 – what you need to know about the immigration law that criminalizes unauthorized border crossings
ImmigrationProf blogger Kit Johnson has a nice piece in The Conversation ("Democrats debate the repeal of Section 1325 – what you need to know about the immigration law that criminalizes unauthorized border crossings") that follows up on Julian Castro's call in the first Democratic Presidential debate calling for the repeal of 8 U.S.C. 1325. One particular passage in Kit's analysis struck me as particularly relevant and salient: "According to University of California Los Angeles historian Kelly Lytle Hernandez, white supremacist South Carolina Sen. Coleman Livingston Blease was  architect" of 1325 when it was passed in 1929. Food for thought.
From the Bookshelves: A Good Provider Is One Who Leaves: One Family and Migration in the 21st Century (forthcoming August 20, 2019) by Jason DeParle
"No matter your politics or home country this will change how you think about the movement of people between poor and rich countries...one of the best books on immigration written in a generation." --Matthew Desmond, author of Evicted
The definitive chronicle of our new age of global migration, told through the multi-generational saga of a Filipino family, by a veteran New York Times reporter and two-time Pulitzer Prize finalist.
When Jason DeParle moved in with Tita Comodas and her family in the Manila slums thirty years ago, he didn't expect to make lifelong friends. Nor did he expect to spend decades reporting on Tita, her husband, siblings, and children, as they came to embody the stunning rise of global migration. In his new book, DeParle paints an intimate portrait of an unforgettable family across three generations that dramatizes how the international movement of labor has reordered economics, politics, and culture across the world. At the heart of the story is Rosalie, Tita's middle child, who escapes poverty by becoming a nurse, and lands jobs in Jeddah, Abu Dhabi and, finally, Texas--joining the record forty-four million immigrants in the United States.
Migration touches every aspect of global life. It pumps billions in remittances into poor villages, fuels Western populism, powers Silicon Valley, sustains American health care, and brings one hundred languages to the Des Moines public schools. One in four children in the United States is an immigrant or the child of one. With no issue in American life so polarizing, DeParle expertly weaves between the personal and panoramic perspectives. Reunited with their children after years apart, Rosalie and her husband struggle to be parents, as their children try to find their place in a place they don't know. Ordinary and extraordinary at once, their journey is a twenty-first-century classic, rendered in gripping detail.
This Article conducts a comparative analysis between the nationality bans that exist in both Israel and the United States. In exploring the similarities and differences between these two countries’ nationality bans, this Article critically evaluates the publicly projected rationales for the bans and argues that these bans promote blanket discrimination rather than effectuating their stated justifications. Furthermore, the comparison between these two nations’ approaches to nationality bans allows this Article to expose the damaging effects these types of bans can have beyond those directly involved in the immigration system while examining the potential threat of these temporary measures being prolonged.
Friday, June 28, 2019
The Office of Refugee Resettlement (ORR), an agency within the Department of Health and Human Services, is responsible for housing unaccompanied immigrant children in a variety of placements ranging from short-term foster care to locked juvenile detention facilities. Many of these children arrive having experienced trauma, including symptoms of Post-Traumatic Stress Disorder (PTSD) and other mental health conditions. Some children also have physical, sensory, or other disabilities.
Disability Rights California (DRC) interviewed approximately 150 immigrant children held in ORR custody. These interviews were part of DRC’s monitoring effort aimed at increasing transparency and ensuring the fair treatment of immigrant children with disabilities.
Department of Commerce v. New York: Why the Supreme Court asked for an explanation of the 2020 census citizenship question
My analysis of the Supreme' Court's decision yesterday in Department of Commerce v. New York, the case involving the U.S. citizenship question on the 2020 Census, appears on The Conversation here. The basic argument is that Chief Justice John Roberts, in joining with the four liberal Justices in sending the citizenship question back to the Department of Commerce for an explanation that is not "contrived," as he put it, acted to ensure public confidence in the Supreme Court and its legitimacy as an independent branch of government.
The Booklist Reader closes out Immigrant Heritage Month with recommended books by and about immigrants, several of which have been featured on ImmigrationProf Blog:
June is #ImmigrantHeritageMonth, which began in 2014 and has been recognized and celebrated by the (Obama) White House as “a time to celebrate diversity and immigrants’ shared American heritage” since 2015. “Immigration,” the White House declares, “is part of the DNA of this great nation.” Perhaps now more than ever—fueled by the ubiquity of alarming headlines and tragic images in the media—the topic of immigration also provides substantial literary inspiration: we gather this baker’s dozen of recent titles, all with 2018 and 2019 pub dates and linked to their Booklist reviews, for your reading enlightenment.
The Atlas of Reds and Blues, by Devi S. Laskar
The Body Papers, by Grace Talusan
Dear America: Notes of an Undocumented Citizen, by Jose Antonio Vargas
Freshwater, by Akwaeke Emezi
Girls Burn Brighter, by Shobha Rao
Immigrant, Montana, by Amitava Kumar
Lost Children Archive, by Valeria Luiselli
Miracle Creek, by Angie Kim
Number One Chinese Restaurant, by Lillian Li
On Earth We’re Briefly Gorgeous, by Ocean Vuong
The Other Americans, by Laila Lalami
A River of Stars, by Vanessa Hua
Happy reading! If you prefer shorter reads (though not necessary lighter ones), here is a list of children's books on immigration from 2018.
An Update: The Flores settlement: A 1985 case that sets the rules for how government can treat migrant children
A few minutes ago, the Supreme Court granted certiorari in three DACA rescission cases (Department of Homeland Security v. Regents of the University of California; Trump v. NAACP; McAleenan v. Vidal). The cases have been consolidated with one hour for oral argument. Details to follow.
I offer thoughts about the implications of DACA and its rescission, see Lessons About the Future of Immigration Law from the Rise and Fall of DACA in volume 52, issue 1 of the UC Davis Law review (Symposium — Immigration Law & Resistance: Ensuring a Nation of Immigrants).
CALL FOR PAPERS
“New Voices in Immigration Law”
Association of American Law Schools · Section on Immigration Law
Friday, January 3, 2020, 3:30pm-5:15pm · Washington, DC
(Submission Deadline: August 15, 2019)
The Section on Immigration Law of the Association of American Law Schools invites papers and works in progress for its “New Voices in Immigration Law” session at the 2020 AALS Annual Meeting in Washington, DC, which will take place January 2-5, 2020. This session has been scheduled for Friday, January 3, 2020, at 3:30pm.
This session will be structured as a series of simultaneous works-in-progress discussions, rather than as a panel. Preselected commentators will lead small-group round-table discussions of papers.
Submissions may address any aspect of immigration and citizenship law. We also welcome papers that explore these topics from alternative disciplines or perspectives.
Please note that individuals presenting at the program are responsible for their own Annual Meeting registration fee and travel expenses.
Submission Guidelines: The deadline for submissions is August 15, 2019. Feel free to submit an abstract, a précis, or a work-in-progress. Priority will be given to individuals who have never presented an immigration law paper at the AALS Annual Meeting, works not yet published or submitted for publication, and junior scholars.
Please email submissions in Microsoft Word format to profkitjohnson at gmail.com (Subject: AALS 2020: New Voices in Immigration Law). In your email, please indicate how you meet our selection priorities.
Inquiries: Please direct any questions or inquiries to Kit Johnson (profkitjohnson at gmail.com).
Round 1 (and here) of the Democratic presidential candidates debate saw some discussion of immigration. Julian Castro came across as informed on the issue and had a concrete idea for immediate change (repealing * U.S.C. 1325, which criminalizes unauthorized border crossings, which Kit Johnson blogged on yesterday.
A number of candidates disparaged a variety of Trump immigration policies, including family separation, child detention. We heard much about detaining migrants in cages and how President Trump's policies are in effect immoral and inhumane.
Vice President Biden spoke on the need to provide foreign aid to the nations of Central America to quell migration pressures,
All the candidates expressed support for health care for undocumented immigrants. How things have changed among democrats since the days of Bill Clinton!
In part of a breakout night, Senator Kamala Harris criticized President Obama's record on immigration, expressing her disagreement with her President on Secure Communities while the Attorney General of California. She is on record as believing the program focused on serious criminals, not all noncitizens who may be subject to removal. President Obama ultimately dismantled Secure Communities because of state and local opposition; President Trump has brought it back. Senator Harris also listed a number of immigration measures that would be her first items to address as President, including reinstating DACA, ending family separation, and reversing a variety of Trump immigration measures.
South Bend Mayor Pete Buttigieg highlighted how undocumented immigrants pay sales and (directly or indirectly) property taxes, benefit our society, and should be treated appropriately.
Senator Bernie Sanders, although not detailed on the issue, mentioned he would reverse all of President Trump's immigration executive orders.
Former Colorado Governor John Hickenlooper said that, in Colorado, the Trump family separation and related policies would be called "kidnapping."
In closing, author Marianne Williamson stated that, to defeat President Trump, we must recognize that e has "harnessed fear for political purposes." Sounds to me like she is talking about President Trump and immigration.
Immigration Article of the Day: Private Prisons, Private Governance: Essay on Developments in Private-Sector Resistance to Privatized Immigration Detention by Danielle C. Jefferis
Private Prisons, Private Governance: Essay on Developments in Private-Sector Resistance to Privatized Immigration Detention by Danielle C. Jefferis, Northwestern Journal of Law and Social Policy, Forthcoming
Two diametrically opposed events impacting America’s for-profit prison industry occurred within two weeks of each other early this year: On March 19, 2019, the U.S. Supreme Court announced its opinion in Nielsen v. Preap. In the case, a majority of the justices upheld a broad interpretation of the federal government’s immigration detention authority with respect to certain noncitizens in removal proceedings. In effect, the Court’s decision expanded the category of people subject to mandatory immigration-related confinement, a system of incarceration that currently confines more than 50,000 people per day in mostly private prisons and continues to expand, in part due to the increasingly broad authority under which federal immigration-enforcement authorities confine people. The decision marked a victory for the private-prison industry.
Less than two weeks before the Preap decision was announced, the industry experienced a significant loss, however. In an unprecedented move, JPMorgan Chase, one of the nation’s largest banks, announced it would no longer finance or invest in private prison corporations. Wells Fargo soon followed. Chase and Wells Fargo’s divestment from the private-prison industry represented a loss of millions of dollars of capital for the corporations managing and profiting from privatized immigration detention, and sends a compelling — and unusual — signal from Wall Street that a company’s conduct, not just its bottom line, matters. Stocks of the two largest private-prison companies took a drastic hit in the aftermath of the banks’ announcements.
For advocates of decarceration and more humane immigration-enforcement protocols, Chase’s divestment from the private-industry is one development in a series of examples of people and organizations disavowing an expectation of public governance and, instead, relying on private governance institutions to impose accountability and push for change. When the government fails to govern, people and groups may turn to private governance institutions to try to change the status quo. Private governance institutions, which may take limitless forms, are the means by which individuals, organizations, and communities aim to address the needs public governance failed to address. In other words, “private governance institutions provide governance without government.” Of the recent examples of private governance action in the field of private prisons, this Essay examines two: shareholder actions and divestment activities.
Thursday, June 27, 2019
I gave a lot of thought to posting on this blog the picture of border death that has gone viral. But I could not do it. It made my sad, sick, and depressed. Still, I know that images can impact policy and recall how pictures last summer of the human impacts of the family separation policy helped change public perceptions. Ultimately, I decided that I would not post the pictures but had a hard time putting my finger on why not. It just did not feel right.
I find my vague feelings articulated in a coherent way in a powerful commentary by Tina Vasquez. She discusses the photo that has been widely circulated of two migrants who died on Monday on the banks of the Rio Grande: The Image America Shouldn’t Need.
Vasquez writes: "AP and The New York Times, will argue that there is a larger public interest: this “iconic image,” they will say, has the power to stir the public, change minds, mobilize political action... But would these same news organizations dare to use—at the top of the hour on their cable shows or on the homepages of their sites—such graphic pictures of dead Americans who were the victims of the latest school shooting?"
"I’m a journalist, and a person of color in the United States. Unlike those who’ve suggested that no one should dare look away from the image, I’ve never needed convincing that “the other” is human. The photos people need to see are of Óscar and Valeria together, alive, to remind them they were people, not bodies.
Vasquez concludes: "My perspective, as an immigration reporter, is that if you haven’t been moved by now by the many reports of abuses, injustices, in-custody deaths, and bodies that have turned up in the borderlands, then you cannot be moved."
A forthcoming report from the International Human Rights Clinic examines the reasons why so many Central Americans head north, why thousands of them go missing each year, and what regional governments can do to help solve the problem.
A soon-to-be published report from Boston University School of Law’s International Human Rights Clinic draws on four years of field research. The report, The Plight of Disappeared Migrants from Central America, examines the social, economic, and political conditions behind people’s decision to leave their home countries; the reasons migrants disappear en route; and the laws and policies governing investigations, repatriation of remains, and reparations. Professor Susan M. Akram says her clinic agreed to examine the issue at the request of advocates on the ground, including the family members of missing or disappeared people. According to the Movimiento Migrante Mesoamericano (Mesoamerican Migrant Movement), between 72,000 and 120,000 migrants went missing between 2006 and 2016.
Breaking News: Supreme Court Decides Census Case, Remands for Non-Pretextual Explanation of the Citizenship Question
This morning -- on the last day of the Term, the Supreme Court released the decision in Department of Commerce v. New York. As SCOTUSblog summarizes the case, the Court held "that addition of question about citizenship to 2020 census does not violate Constitution’s enumerations clause or the Census Act, but that district court was warranted in remanding case to Department of Commerce to provide a non-pretextual explanation for adding the question." Chief Justice Roberts, who wrote the opinion for the Court, found that the Department of Commerce's claim that the citizenship question was designed to facilitated Voters Right Act enforcement, seemed "contrived."
Here is Amy Howe's opinion analysis from SCOTUSBlog.
During the Democratic debate last night, former HUD Secretary Julian Castro stood out with his remarkably nuanced take on immigration.
When asked what he would do on day one if elected, Castro responded: "I would sign an executive order that would get rid of Trump’s zero tolerance policy, the remain in Mexico policy and the metering policy."
Castro also noted that he would pursue: "immigration reform that would honor asylum claims. That would put undocumented immig—undocumented immigrants as long as they haven’t committed a serious crime on a pathway to citizenship and we get to the root cause of the issue which is—we need a marshal plan for Honduras and Guatemala and El Salvador. So that people can find safety and opportunity at home instead of coming to the United States to seek it."
And, most fascinating, this tidbit:
my plan also includes getting red—getting rid of Section 1325 of Immigration Nationality Act. To go back to the way we used to treat this—when somebody comes across the border not to criminalize desperation. To treat that as a civil violation. And—and here is why it’s important—we see all of this horrendous family separation they use that law Section 1325 to justify under the law separating little children from their families.
Castro followed that statement up with: "So I challenge every single candidate on this stage to support the repeal of Section 1325." To which Cory Booker responded, "I already have." And apparently so have Senator Warren and Governor Inslee.
This exchange preceded the dust up between Julian Castro and Beto O'Rourke that Kevin has already highlighted, in which Castro emphasized that his call to repeal 1325 was not just about asylum seekers but for every migrant crossing into the United States without authorization.
Here's hoping Castro stays in play and continues to bring his nuanced and educated voice to the issue of immigration.
In this piece from the New Yorker, prawf Warren Binford (Willamette) discusses what she saw at the facility holding children in Clint, Texas. Here is the portion of her statement that I just cannot get out of my head:
So, in any event, the children told us that nobody’s taking care of them, so that basically the older children are trying to take care of the younger children. The guards are asking the younger children or the older children, “Who wants to take care of this little boy? Who wants to take of this little girl?” and they’ll bring in a two-year-old, a three-year-old, a four-year-old. And then the littlest kids are expected to be taken care of by the older kids, but then some of the oldest children lose interest in it, and little children get handed off to other children. And sometimes we hear about the littlest children being alone by themselves on the floor.