Sunday, July 28, 2019
Zero Tolerance is a legal-literary work in which the author seeks to understand the motivations and thought processes of immigration detention agents who have participated in separating families at the border. It is a work of fiction, which is part of a collection of short stories titled Americas. Conventional legal scholarship, such as that written by Josh Chafetz, David E. Pozen, and Jennifer Nou, has addressed radical or troubling shifts in norms, which scholars describe as “norm destruction” and “norm decomposition.” This story treats norm destruction in the context of atrocities committed in immigrant detention centers in furtherance of the Attorney General’s “zero tolerance policy” against illegal immigration. It is part of a larger project that addresses the political and jurisprudential catastrophes of the past several years through the expressiveness permitted by art.
Saturday, July 27, 2019
Immigration Article of the Day: Mainstreaming Refugee Women’s Rights Advocacy by Tally Kritzman-Amir & Kayla Rothman-Zecher
On June 11, 2018, U.S. Attorney General Jeff Sessions issued a decision which signifies a regression in the willingness to protect women fleeing from domestic violence through the framework of the refugee convention. By contrast this paper argues that International Refugee Law would benefit from an additional mode of engagement with feminism. Instead of simply introducing feminist theory into International Refugee Law, we suggest — in light of the underlying commonality among all women, regardless of status — that International Refugee Law would benefit from conjoining advocacy efforts on behalf of refugee women with those undertaken on behalf marginalized and disempowered women more generally. Such a shift would be of particular importance in jurisdictions in which the legal, social or political willingness to protect and promote women’s rights outweigh the willingness to protect the rights of refugees. Arising from a more fundamental human rights framework that explicitly include women as humans, this legal perspective would provide deeper protection to asylum seeking women, changing the legal focus from questions of status determination as to whether someone — man or woman — qualifies for protection as a refugee, to broader questions regarding the personhood of women and the entire set of necessary civil, social, economic and cultural rights deriving from said personhood. In other words, the shift would be from a mostly negative-duty protection perspective to a both negative- and positive-duty perspective. This shift would also create opportunities for solidarity between asylum seeking women and other women, including other immigrants, residents, and citizens, national minorities, and general feminist and women’s rights groups. Such a linkage would allow asylum seeking women to benefit from the progress already achieved by feminist movements regarding women’s rights, rather than marginalizing them and confining them to seek their rights exclusively as refugees.
The call for mainstreaming the discourse on refugee rights into the discourse on women’s rights offers an important theoretical contribution that goes beyond the discussion of asylum seeking women’s rights. Namely, is it strategically, theoretically or doctrinally preferable to advocate for the rights of refugees via instruments of International Human Rights, rather than via International Refugee Law; and if so, under what circumstances? We find significant arguments in favor of abandoning the prevailing view that International Refugee Law is a separate branch of international law to be applied and interpreted according to its own fundamental concepts, and in isolation from other areas of international law. International conventions on human rights are applicable to refugees, as they apply to “all individuals within its territory and subject to its jurisdiction,” or “everyone,” and not merely to members of the political community.
We demonstrate our argument with a regional focus on the treatment of asylum seeking women in Israel. The exploration of the questions in this paper draws on the work of the Coalition on Asylum Seeking Women and Children in Israel, which constitutes a rich, novel and groundbreaking approach to the advocacy on behalf of asylum seeking women. The Coalition has been operating since September 2016, and consists of women’s rights, migrant women’s rights and children’s rights organizations and clinics. By embedding this theoretical and doctrinal legal question in the lived experience of women asylum seekers and women’s rights advocates, the examination of the advocacy efforts and raison d'être of the Coalition could demonstrate how this model can be applied in additional jurisdictions, mutatis mutandis.
Friday, July 26, 2019
The final season of Orange is the New Black, which was made available on Netflicx today, looks at one of the inmate's (Blanca's) experiences in immigration detention. I have not watched it yet but will fill readers in when I have.
SCOTUSBlog is running a symposium on immigration on the Supreme Court. Here are the first two (here and here) installments. Cecellia Wang, deputy legal director for the national ACLU, concludes, based on the Census case and other cases, that "[t]he Supreme Court is not ready to give the president carte blanche in immigration-related matters." I agree.
The Committee on the Present Danger, a long-defunct group that campaigned against the dangers of the Soviet Union in the 1970s and 1980s, has recently been revived with the help of Stephen K. Bannon, the president’s former chief strategist, to warn against the dangers of China. In the NY Times, Bannon says “These are two systems that are incompatible,” Mr. Bannon said of the United States and China. “One side is going to win, and one side is going to lose.”
Expansion of Expedited Removal: Why Pushing to the Limits of the Statute Unconstitutionally Deprives People of Due Process of Law
David Isaacson on The Insightful Immigration Blog highlights due process problems with President Trump's proposed expansion of expedited removal. He notes that the administration is attempting "a major expansion from the regulations previously in effect, which applied expedited removal proceedings only to people who were arriving at a port of entry, had previously arrived by sea, or were found within 100 miles of the border and could not show that they had been present in the United States for 14 days."
The Los Angeles Times report on an arrest that might surprise some people.
Yesterday, sixteen Marines were arrested at Camp Pendleton for various illegal activities ranging from human smuggling to drug-related offenses. Information gained from previous arrests led to the latest arrests.
On July 3, two Marines were arrested for allegedly transporting unauthorized immigrants as part of a smuggling operation. Eight additional Marines were questioned about other alleged drug offenses unrelated to the arrests.
Names of the Marines arrested yesterday and details of the alleged offenses were not immediately released.
The Marines arrested on July 3 were arrested after Border Patrol agents saw their vehicle pull off Interstate 8 and pick up three unauthorized immigrants. They were arraigned in federal court in San Diego July 8.
Immigration Article of the Day: The Shifting Categorization of Immigration Law by Tally Kritzman-Amir
For political reasons, the rise in forced migration and arrival of mixed flows of migrants to the US and Europe is frequently referred to as a crisis or an emergency. This paper argues that the crisis is not merely a crisis of numbers, protection, or policy, but rather a deep categorical and ethical crisis. In this crisis, the fundamental organizing categories of immigration law are shifting, as is their underlying logic. It represents a shift of focus: from migrants to migration, from causes of migration to the hardship and political interest of the destination state, from other-regarding and community interests infused ethics to nationalist self-interest ethics.
The process of categorization in migration law and policy occurs in a respectful dialogue, in the best of circumstances – or in a conflictual struggle, in other cases – between executives, legislatures, civil societies and judiciaries. The paper offers a critical analysis of this dialogue on categorization, looking at the recent case law on the termination of temporary protection, the blanket exclusion of nationals of certain countries most known as the travel bans, and the different policies addressing the perceived large-scale migration through the Mexican border.
Thursday, July 25, 2019
The Nation has published an open letter cosigned by over 40 prominent authors, who are also immigrants and/or refugees, decrying the abhorrent and inhumane conditions reported in detention centers at the border.
Dozens of immigrant/refugee authors—novelists, narrators, poets, memoirists, Pulitzer Prize winners, Oprah’s Book Club selections, and bestsellers from five continents—urge Congress to address the atrocities happening on America's southern border. The signers—which include Gabriel Byrne, Neil Gaiman, Khaled Hosseini, Gary Shteyngart, Viet Thanh Nguyen, Wayétu Moore, Ilya Kaminsky, Ariel Dorfman, Colum McCann, Reza Aslan, and countless more—implore public officials “to take immediate steps to rectify the atrocious conditions for asylum seekers being detained today.” They urge Congress to use its appropriation power to pursue four concrete actions to mitigate the crisis.
Check out the letter.
As they say, a picture's worth a thousand words. NPR reports on a picture that tells us quite a lot about the current Central American immigration humanitarian crisis.
The above picture of an armed soldier impeding a crying migrant mother and her child from getting to the United States is spreading on social media and making headlines in Mexico.
Critics of Mexican President Andrés Manuel López Obrador's tighter border enforcement have seized on the image to decry Mexico's new security plan, implemented after intense pressure from the Trump administration. In the photo, the soldier stands on a dry riverbed between the Mexican city of Juárez and El Paso, Texas. He holds a firearm pointed toward the ground. The woman weeps and clutches her young son.
In a video of the scene published Wednesday by Mexico's El Universal newspaper, the woman pleads with the National Guard to let her and her boy pass into the United States.
The movement to abolish ICE burst into the national political consciousness in the summer of 2018. It is an idea that had been developed over years of thoughtful organizing by a loose coalition of grassroots immigrant rights groups. They had become convinced that efforts to reform the agency were futile and that a more radical approach was needed. Missing from the public discourse, however, is an affirmative vision of the mechanics of a just and humane immigration enforcement system — one that does not rely on detention and mass deportation but is nevertheless realistic and effective. This void has left the “Abolish ICE” movement open to dismissive attacks and has meant that politicians, rather than impacted communities, have been left to answer the question of what comes after ICE. To date, their answers have been insufficient and often inconsistent with the goals of the “Abolish ICE” movement. Drawing on lessons from our own and other nations’ past immigration enforcement schemes, on enforcement mechanisms employed by other federal agencies, and on interviews with leaders of the “Abolish ICE” movement, I seek to begin to fill this void. This essay suggests a paradigm shift in immigration enforcement. It is intended as a starting point for the immigrant rights movement and for policymakers to use, critique and improve upon.
Wednesday, July 24, 2019
Immigration Article of the Day: Due Process, Immigration Judges, and Immigration Officers by Richard J. Pierce, Jr.
Due Process, Immigration Judges, and Immigration Officers by Richard J. Pierce, Jr.. joins the chorus calling for an independent immigration adjudication system.
In an article in the Yale's Journal of Regulation Notice and Comment, Pierce begins:
"The Supreme Court has long emphasized the requirement of a neutral decision maker as a critical component of the process that is due any individual who has a dispute with government. The Court has also emphasized the importance of the interest an individual has at stake in identifying the procedures required by due process. Yet, in a context in which an individual’s life is often at stake, we rely on decision makers who cannot possibly be considered neutral." (footnote omitted).
Pierce ends his observations as follows:
"As I have explained in detail elsewhere, due process requires at a minimum that [Immigration Judges] and [Asylum Officers] must be insulated from evaluation and potential removal without cause by the President, the Attorney General, the Secretary of Homeland Security, or any of their subordinates. I am a member of a team of law professors that is actively seeking a client with a meritorious claim for asylum who has been victimized by the present blatantly unconstitutional system of immigration adjudication. The prospective client must view her best interests as consistent with the broader interests of all present and future applicants for asylum. We are willing to represent such a client pro bono or to file amicus briefs in support of any such client if she is represented by someone else. Please contact me if you become aware of anyone who fits that description."
It's time to update your investor visa slides and/or class notes. Today, DHS issued a final rule: EB-5 Immigrant Investor Program Modernization. It goes into effect November 21, 2019.
Investment minimums are increasing. For "targeted employment area" (TEA) investments, the minimum required is rising from $500K to $900K. For all other investments, the minimum required is rising from $1 million to $1.8 million.
TEA designations now controlled by DHS. "the final rule eliminates the ability of a state to designate certain geographic and political subdivisions as high unemployment areas; instead, DHS will make such designations directly, using standards described in more detail elsewhere in this final rule."
One Court Declines to Block Trump Rule Barring Most Asylum Petitions, Another Blocks Same Rule [UPDATED 7/24/2019 7pm]
A federal judge [in DC] on Wednesday let stand a new rule that bars migrants who failed to apply for asylum in at least one country on their way to the southwest border from obtaining protections in the United States, dealing the Trump administration a temporary win.
Judge Timothy J. Kelly of the Federal District Court in Washington declined to issue a temporary restraining order that would have blocked the government from effectively banning asylum for most Central American migrants, who have been arriving in record numbers this year.
The rule, now being applied on a limited basis in Texas, requires migrants to seek asylum in the first safe country they arrive in — in most of the current cases, Mexico.
UPDATE 7/24/2019 7PM: Hours after the DC ruling, a California judge blocked the same rule. U.S. District Judge Jon S. Tigar issued a nationwide preliminary injunction. “Under our laws, the right to determine whether a particular group of applicants is categorically barred from eligibility for asylum is conferred on Congress,” Tigar wrote. “While the public has a weighty interest in the efficient administration of the immigration laws at the border, it also has a substantial interest in ensuring that the statutes enacted by its representatives are not imperiled by executive fiat,” he added.
Kit Johnson previously blogged about the comments of Professor Amy Wax about immigration and immigrants. The comments provoked a firestorm of controversy and protests, including from many Penn Law students. The Dean at Penn Law responds in the following statement:
To the Penn Law Community:
Last week, Penn Law Professor Amy Wax spoke on immigration policy at the “National Conservatism” conference in Washington, D.C. After gathering more information and establishing the facts, I write now to emphasize how fundamentally the substantive views attributed to Professor Wax contravene our institutional values and policies.
Media sources have reported and since confirmed that Professor Wax advocated a national immigration policy that “[i]n effect means taking the position that our country will be better off with more whites and fewer nonwhites.” At best, the reported remarks espouse a bigoted theory of white cultural and ethnic supremacy; at worst, they are racist. Under any framing, such views are repugnant to the core values and institutional practices of both Penn Law and the University of Pennsylvania.
Past episodes have made clear that when Professor Wax speaks about race and culture, she does not speak for this institution or those who work and study here. For many years, our institutional efforts have been, and will remain with increased vigor, to build an academic community whose ethos and composition stands in direct opposition to these exclusionary views. We have made broadening access to a Penn Law education, and attracting and supporting a diverse and outstanding student body, faculty, and staff from the widest possible range of backgrounds, among our highest institutional priorities. We have produced concrete results and structural changes through our sustained efforts to this end. For instance, since 2016 we have hired 10 extraordinary tenured or tenure-track professors, half of whom are people of color and more than half are women. On the student front, when we welcome the incoming JD Class of 2022 and LLM Class of 2020, we will have the most diverse and accomplished student body in the history of the Law School.
I know these statements by Professor Wax have caused pain and outrage to many in the Penn community. My colleagues and I pledge to work with you so that together we can heal, and learn from this experience and each other. That students from traditionally underrepresented backgrounds are flourishing at this school and in their subsequent careers is an unassailable rebuke to those who question their full participation in our academic enterprise and our nation.
To all of the alumni, students, and others who have shared your concerns and advice on these matters, I appreciate the engagement and concern you have shown. My colleagues and I learn much from you and are grateful to work together with you even when — indeed, especially when — you are speaking critically and challenging us to do better at meeting the ideals that are central to our mission. Our diversity makes us a better law school.
We are training lawyers to shape the legal profession and the law of the future, which we are committed to making more just and inclusive than what has come before. Please join with us in this effort.
Dean and Bernard G. Segal Professor of Law
CBS reports on an unusual incident. There are so many of them nowadays that it just seems surreal.
Residents in Nashville, Tennessee, formed a human chain around their neighbor's van to help protect him from Immigration and Customs Enforcement (ICE) agents who were trying to take him into custody. The man was sitting in his van with his 12-year-old son when an ICE vehicle blocked him in his driveway. The man and his son sat in the car for hours, resulting in a standoff with ICE agents who lacked legal authority to remove them by force. Neighbors began to check on the man and his son as they sat in the driveway.
A crowd gathered and several people videotaped the standoff on their phones. After four hours, neighbors decided to band together and form a human chain around the van, hoping to protect the man and son when they ran inside their house.
Tuesday, July 23, 2019
Here we go again. The Trump administration, implementing the promise in an executive order in January 2017, has issued a rule expanding expedited removal, speedy removal proceedings with minimum judicial oversight As described in the summary published today in the Federal Register,
"This Notice (this Notice) enables the Department of Homeland Security (DHS) to exercise the full remaining scope of its statutory authority to place in expedited removal, with limited exceptions, aliens determined to be inadmissible under sections 212(a)(6)(C) or (a)(7) of the Immigration and Nationality Act (INA or the Act) who have not been admitted or paroled into the United States, and who have not affirmatively shown, to the satisfaction of an immigration officer, that they have been physically present in the United States continuously for the two-year period immediately preceding the date of the determination of inadmissibility. Presently, immigration officers can apply expedited removal to aliens encountered anywhere in the United States for up to two years after the alien arrived in the United States, provided that the alien arrived by sea and the other conditions for expedited removal are satisfied. For aliens who entered the United States by crossing a land border, the Secretary of Homeland Security has exercised his discretion under the INA to permit the use of expedited removal if the aliens were encountered by an immigration officer within 100 air miles of the United States international land border and were continuously present in the United States for less than 14 days immediately prior to that encounter." (emphasis added).
The expansion of expedited removal from 100 miles from the border to the entire nation for noncitizens in the country for up to two years (as opposed to the current two weeks) raises serious Due Process concerns. Expect a reaction through litigation and otherwise.
“We already see serious abuses of fast-track deportation authority where it is currently used at the US border,” said Grace Meng, acting deputy US Program director at Human Rights Watch. “This change makes people living in US communities subject to an opaque deportation process with limited judicial review.” Human Rights Watch has found that US immigration officials’ methods for interviewing migrants in expedited removal procedures are seriously flawed, leading to the rapid return to other countries of people who face harm, contrary to US law and international standards. The new rule could expose thousands more people living in the US to these same flawed procedures, likely separating families through deportation.
The following statement is from Beth Werlin, executive director of the American Immigration Council:
“The Trump administration’s announcement that it plans to dramatically expand expedited removal undermines American principles of fundamental fairness. Increasing expedited removal across the country is an unprecedented expansion of the Department of Homeland Security’s enforcement authority that will put many people at risk of wrongful deportation.
“Expanding expedited removal in this manner will create a 'show me your papers' regime of immigration enforcement where individuals—including any U.S. citizens they encounter—will be forced to prove they should not be deported. The American Immigration Council will not stand by idly as the Trump administration continues its unlawful attacks on our communities. We will see the Trump administration in court.”
Here is a fact sheet on the new rule from the Center for Immigration Rights Clinic at Penn State Law.
Monday, July 22, 2019
An excellent article on Trump's continuing verbal attack on four Congresswoman of color appeared in The New Yorker. Titled Donald Trump's Idea of Selective Citizenship, the article uses the recent flap to reprise the enduring historical analysis.
"This most recent incident highlights a theme of Trump’s pronouncements as they pertain to people of color. He presents the citizenship of black and brown Americans as a kind of probation that can be revoked for the most minor infractions of protocol.
Ilhan Omar is a Somali-born refugee who became a naturalized U.S. citizen at the age of seventeen. She is American enough to serve in Congress but not enough for Trump, who has shown an increasing disregard for the very principle of asylum. Rashida Tlaib was born in Detroit, to immigrant parents. Ayanna Pressley was born, to African-American parents, in Cincinnati. Her family has been here longer than Trump’s, and, as African-Americans, they are part of a population that was forcibly brought to this country to do its labor. Alexandria Ocasio-Cortez was born in the Bronx, to parents of Puerto Rican descent, which means that, even if she did go back to where her ancestors came from, she would still be in America.
The idea of selective citizenship is not uncommon in American history. "
The history of racial prerequisites for naturalization that it continues to narrate reprises the point made thirteen years ago by Ian Haney Lopez in White By Law. In the first edition of White by Law, Haney López traced the reasoning employed by the courts in their efforts to justify the whiteness of some and the non-whiteness of others, and revealed the criteria that were used, often arbitrarily, to determine whiteness, and thus citizenship: skin color, facial features, national origin, language, culture, ancestry, scientific opinion, and, most importantly, popular opinion. In the tenth anniversary edition, Haney López revisited the legal construction of race by arguing that current race law has spawned a troubling racial ideology that perpetuates inequality under a new guise: colorblind white dominance. It would be hard to find a better explanation of the defense of President Trump's comments ("I don't have a racist bone in my body")
UPDATE 7/23/2019: A similarly excellent piece by Ariela Gross in the Washington Post titled, "Citizenship Used to be White," excavates the role of "free people of color," many of them former slaves, who pushed to ensure citizenship did not have racial prerequisites and would instead be based on shared national commitments to equality and justice.
Data: Transactional Records Access Clearinghouse; Chart: Chris Canipe/Axios
Immigration judges have issued more bail bonds over the past few years — and more expensive ones, according to data by Syracuse University's Transactional Records Access Clearinghouse, Axios' Stef Kight and Felix Salmon write.
As recently as 2005, bonds issued by immigration judges averaged less than $2,000, according to TRAC data. Last fiscal year, just 5% of bonds were less than $2,000, and 40% were $10,000 or more.d price was just $50.
- Some of the nation's iconic founders have immigrant ties: Henry Ford's father was born in Ireland ... Steve Jobs' biological father was born in Syria ... Jeff Bezos' adoptive father was born in Cuba.
- Why it matters, from Axios' Stef Kight: The share of the most successful and globally-recognized U.S. companies that have immigrant founders is growing, according to the group. At the same time, the Trump administration has made it more difficult for immigrants to come to the United States.
The big picture: Immigrants are increasingly a vital part of the U.S. economy.
- Fortune 500 companies founded by immigrants or their children employ 13.5 million people and had $6.1 trillion in annual revenue last year, per the study.
- In Illinois, the revenue brought in by immigrant-founded Fortune 500 companies was equal to 70% of the state’s GDP.