Saturday, August 31, 2019
Here is a legal matter that largely will be misconstrued and exploited in the immigration debate -- and already is being exploited for political reasons.
News came out late yesterday (here and here) that a California state appeals court threw out the sole conviction against an immigrant who fatally shot a young woman on the San Francisco waterfront in 2015 in a case that sparked a national immigration debate.
Here is the court's unpublished opinion, which begins as follows:
"This appeal arises from circumstances resulting in the tragic death of a young woman. While walking on a crowded San Francisco pier early on a summer evening with her father and a family friend, Kate Steinle was struck in the back by a bullet and died [in July 2015]. Jose Ines Garcia Zarate, who was holding the gun when it fired the shot that killed Ms. Steinle, was convicted of being a felon in possession of a firearm after a jury acquitted him of murder, involuntary manslaughter, and assault with a firearm. Defendant’s sole contention on appeal is that the trial court erred in refusing to instruct the jury on the affirmative defense of momentary possession."
Garcia-Zarate said he unwittingly picked up the gun used in the shooting and it fired accidentally. The bullet ricocheted off the concrete and fatally struck Steinle, who was with her father and a family friend. Adding to the odd facts, the weapon used in the shooting belonged to a U.S. Bureau of Land Management ranger who reported it stolen from his parked car.
The court overturned the single conviction on a charge of being a felon in possession of a gun. The 1st District Court of Appeal overturned the gun conviction because the judge failed to give the jury the option of acquitting Garcia-Zarate on the theory he only possessed the weapon for a moment. Prosecutors now have the choice of retrying him on the single count. Garcia-Zarate remains in custody facing related federal charges.
Defense lawyers argued that because Garcia-Zarate held the gun for such a short moment, he couldn’t be convicted of illegal gun possession. Prosecutors argued that the jury instruction error was harmless because Garcia-Zarate admitted firing the gun and experts said he couldn’t do so without pulling the trigger. The court disagreed, saying the jury’s verdict showed they rejected the prosecution theory that the shooting was intentional or even negligent and they had asked the judge to define possession and whether there was a time requirement for possession.
”If Greg Abbott ever wonders why there is so much hate and anger toward Mexicans and immigrants, he should take a long look at his rhetoric, policies and now his mailer.” https://t.co/VOmkpqVwJ2— Veronica Escobar (@vgescobar) August 23, 2019
Tal Axelrod on the Hill reports on some news from Texas.
Earlier this week, Texas Governor Greg Abbott (R) apologized for a fundraising email that called on supporters to “defend Texas” from undocumented immigrants.
The political mailer, which was obtained by NBC News, told supporters that “if we’re going to DEFEND Texas, we’ll need to take matters into our own hands.”
"Mistakes were made, and a course correction has been made. And I emphasize the importance of making sure that rhetoric will not be used in any dangerous way, and we will make sure we work collaboratively,” Abbot said of the letter, which was dated the day before a gunman killed 22 people in El Paso in an attack the shooter said was in response to a “Hispanic invasion.”
A slate of Hispanic lawmakers derided the letter as racist.
“If Greg Abbott ever wonders why there is so much hate and anger toward Mexicans and immigrants, he should take a long look at his rhetoric, policies and now his mailer,” Rep.(D-Texas) tweeted.
In the video above, Tanya Maria Golash-Boza (Professor of Sociology, University of California, Merced) briefly summarizes the history of racism in U.S. immigration law. It is part of a series of videos made by Professor Golash-Boza for teaching race and racism.
Friday, August 30, 2019
Immigrants waiting for their Immigration Court hearings under the "Remain in Mexico" MPP protocols have been rapidly increasing in number. Case-by-case court records obtained by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University show that during July a total of 11,804 immigrants were sent back to Mexico to await their MPP hearings. This is up from 5,161 during May and 5,883 in June.
Walter Ewing for Immigration Impact reports on a troubling development in the Trump administration's ever-aggressive immigration enforcement measures.
Without a formal announcement, the Trump administration sent letters to families of sick children containing a dire warning: leave the country in 33 days or face deportation and a years-long ban on returning. Many of those who received a letter last week are immigrants whose children suffer from cancer, cystic fibrosis, and HIV, among other illnesses.
Up until now, the children and their families had benefited from a U.S. Citizenship and Immigration Services (USCIS) program known as “medical deferred action.” This program allows immigrant families to remain in the United States for two-year periods if they can prove that a family member needs life-saving treatment for “serious medical conditions.” Many of the families in the program entered the United States through a visa or another legal channel. Deferred action enabled them to stay so the family member could receive medical treatment.
USCIS says medical deferred action has been revised and is now limited to the foreign-born relatives of U.S. military service members.
This abrupt change in policy leaves the future of many children in doubt. Children who are now receiving treatment for illnesses such as epilepsy, cerebral palsy, and muscular dystrophy will be forced to return to countries where the medical treatment they need to survive may not exist.
Some parents of the children, as well as several U.S. public officials, regard the new policy as a de facto death sentence.
Click the link above to read the human stories of young migrants who will be adversely affected by the new policy.
Suzanne Monyak on Law360 (subscription required) reports that the U.S. Court of Appeals for the Fourth Circuit, in an opinion by Judge G. Steven Agee, an appointee of President George W. Bush, has overturned a decision by former U.S. Attorney General Jeff Sessions that limited immigration judges' ability to administratively close cases. The Fourth Circuit held that the immigration courts have unambiguous authority to manage their dockets as necessary.
"After an immigration judge (“IJ”) denied Jesus Zuniga Romero’s request for administrative closure of his case—which would have removed it from the IJ’s active docket pending the completion of a separate immigration proceeding—Romero petitioned the Board of Immigration Appeals (“BIA”) for review. Although the BIA initially sustained Romero’s appeal and administratively closed his case, it later dismissed the appeal after a precedential decision issued by the Attorney General in Matter of Castro-Tum, 27 I. & N. Dec. 271 (A.G. 2018). In Castro-Tum, the Attorney General concluded that IJs and the BIA do not have the general authority to administratively close cases. Romero now brings a petition for review of the BIA’s decision to this Court. For the reasons we discuss below, we grant Romero’s petition for review, vacate the BIA’s decision, and remand for proceedings consistent with this opinion. ... In sum, the result is that 8 C.F.R. §§ 1003.10(b) and 1003.1(d)(1)(ii) unambiguously confer upon IJs and the BIA the general authority to administratively close cases such that the BIA’s decision should be vacated and remanded." (emphasis added).
The National Immigrant Justice Center has put together a "A Timeline of the Trump Administration’s Efforts to End Asylum." The timeline notes that "[s]ince President Trump’s inauguration, the federal government has unleashed relentless attacks on the United States asylum system and those who seek safety on our shores. Internal memos have revealed these efforts to be concerted, organized, and implemented toward the goal of ending asylum in the United States as we know it.2 This timeline highlights the major events comprising the administration’s assault on asylum seekers."
The Center for American Progress released a new piece today that looks at how the private prison industry is benefiting from Trump administration policies to expand detention and increase profits.
Following the inauguration of President Donald Trump in January 2017, however, the administration immediately shifted course to robustly support private prisons. In February of that year, then-Attorney General Jeff Sessions revoked the Obama administration’s initiative, and by April 2017, the DOJ began requesting bids for contracts to house federal inmates in private prison facilities once again. That same month, the GEO Group won a $110 million contract to build the first detention center under the new administration.
The fact that private prisons have serious, documented flaws raises questions as to why the Trump administration is so eager to support them. It is noteworthy that a pro-Trump PAC and the president’s inaugural committee have benefited from the private prison industry’s financial contributions. The Trump family business has benefited from the industry’s patronage as well.
This issue brief details how Trump administration policies have increased the migrant detainee population—and the profits of private prisons—as well as endangered the lives of migrants being held in detention. The brief then illustrates just how much money private prisons have spent in U.S. political campaigns.
The bottom line: Trump administration policies have increased the number of migrants in detention
All Americans benefit from the trust of all community members, including immigrants, in law enforcement. Law enforcement can best protect public safety if all community members have the trust necessary to report crimes, assist in the investigation of crimes, and participate in legal proceedings. In light of the importance of such a relationship, it is not srprising that more than 50 local law enforcement leaders have posted an open letter to immigrant communities underscoring their commitment to serving all community members.
The letter begins: "As members of the Law Enforcement Immigration Task Force (LEITF), we want to assure you and communities across the country that local law enforcement serves to keep everyone safe."
In the letter, also posted in Spanish, signatories highlight the importance of community trust in maintaining public safety, and the importance of a strong relationship between law enforcement and immigrant communities.
“We know that many immigrants in our communities are afraid. We are here to serve all communities,” they write. “ … When you feel safe and comfortable reaching out to us, we can keep everyone safer. … We cooperate with federal law enforcement to respond to threats in our communities — when our safety is at stake. But immigration enforcement is, first and foremost, a federal responsibility. We want to focus our limited state and local resources on threats to public safety and security.
“Your trust is paramount to state and local law enforcement’s ability to maintain public safety. Please continue to call on us. We are here to serve everyone who lives here and committed to keeping everyone safe.”
Along similar lines, Colorlines reports that "The New Mexico Workforce Solutions Department argues that mass immigration raids like those in Mississippi endanger everyone in the community because they silence crime victims and witnesses. Their advice: Just say no when ICE comes calling for sensitive data."
As previously covered on the ImmigrationProf blog, the Trump administration is seeking to abrogate the Flores settlement, which governs the immigration detention of migrant children. Legal challenges to the action have followed.
Peter Margulies on Lawfare ("What Ending the Flores Agreement on Detention of Immigrant Children Really Means") offers his insights on the Trump administration's efforts and the challenges facing immigration advocates.
How Solitary Confinement Kills: Torture and Stunning Neglect Ends in Suicide in Privately Run ICE Prison
Over the past two decades, at least 7,000 migrants – mothers and fathers, sisters and brothers, sons and daughters – perished while attempting to cross the U.S.-México border and more than 2,800 migrants are missing.
The International Day of the Disappeared memorializes the hundreds of thousands of missing persons throughout the world. Many Californians might not know that an estimated 240 unidentified migrants are buried in a mass grave in Southern California. We write as a human rights advocates, a lawyer who grew up on the border in a town adjacent to the gravesite, and a forensic anthropologist whose work engages the border crisis, to implore Californians to recognize the migrants who disappeared in our deserts and who are put to rest here.
Holtville, a Southern California agricultural community surrounded by the mountains and desert is one of the silent stewards of the unidentified border dead. Here, the summer heat averages a blistering 105 degrees. Most locals are unaware of the migrant mass grave in their backyard, and that is by design. The sinking graves tucked behind a local cemetery’s back fence are marked by bricks labeled “Jane Doe” or “John Doe.” The county now cremates the unidentified, but the site still has historical and religious importance to those few in the know. Catholic priests and humanitarian groups pay tribute by leaving cotton-candy-pastel painted wooden crosses with a message of solidarity: No Olvidados “Not Forgotten.”
Mass graves are being “re-discovered” with increasing efforts of coalitions of anthropologists, community leaders, and families of the disappeared. These sites are a historical reminder of the human consequences of policies that dehumanize migrants: deterrence by any means surely results in needless deaths. Just as the undocumented are forced by anti-immigrant policies into the shadowed margins of society in life, they are left to remain faceless and nameless in death.
Migrant grave sites are a product of cause and effect: twenty-five years ago, Immigration and Naturalization Services deployed Operation Gatekeeper, a measure intended to halt entry by focusing enforcement in San Diego, creating a bottleneck that used the harsh Southern California and Arizona deserts as a deterrent for would-be migrants. But this just funneled those desperate to seek refuge to a more punishing, often deadly terrain. Between 1998 and 2001, border agents found more bodies in El Centro, California, than anywhere else along the entire border. The Holtville grave site was opened shortly after Operation Gatekeeper began.
While today there is much said about the humanitarian crisis along the border in the political discourse, it is critical that America - the once beacon of hope and asylum for the oppressed, disenfranchised, and terrorized - recognizes the real humanitarian crisis and its source. The crisis of mounting migrants deaths in our southern border region is an immediate effect of enforcement-only policies of our own government. The criminalization of migration forces desperate people seeking refuge to make the impossible choices, that often lead to death. The number of deaths is even further exacerbated by the militaristic acts of the current administration, leading to inconceivable abuses of human rights. There have been reports and videos of Border Patrol agents destroying waterstations, the only reprieve in a scorching desert. Meanwhile, humanitarians leaving water in the desert are charged with felonies.
The current metering policy leaves those hoping to present themselves at the port of entry for asylum claims waiting in Mexico for six to nine months. The reality is increasingly grim, the New York Times reports the waiting list in Tijuana is over 10,000. It is not surprising that in the presence of such adversarial policies, the number of migrant deaths is climbing.
While various death counts are published, the numbers are certainly higher. The greatest impediments to accurate documentation of how many, and specifically who, are dying along the border are the barriers to reporting missing migrants by families, to providing reference DNA for kin matching and, in turn, positive identification of the migrant remains, and to understanding the local knowledge of migration pathways leading across the border, and so charting the hot spots for recovering remains. These impediments are directly related to the structural vulnerabilities that push these migrants to take up this unforgiving journey, like poverty, mistrust of government, fear of law enforcement, violence, and ethnic persecution. Marginalization begets marginalization.
We must recognize the migrant lives lost in California. Ignoring this part of our history erodes our principles of social justice and human rights. Today, on International Day of the Disappeared, we seek to elevate the border discourse to a discussion of what is at stake by recognizing the human consequences.
The lessons California's mass migrant grave teaches are needed now, more than ever, as the dehumanization of Latin American migrants continues to structure the current humanitarian crisis and politicians weaponize anti-immigrant sentiment. Californians must reckon with a history of the dehumanization of migrants, those who live silently as our undocumented neighbors and those who rest nearby as the unidentified dead in silent graves.
Bridget F.B. Algee-Hewitt. 2019. Developing A Bio-Geographic Profile For Human Remains Identification: Implications for Forensic Anthropological
Casework along the U.S.-México Border, invited speaker at Stanford University/CESTA Seminar Series, April 16, 2019.
Bridget F.B. Algee-Hewitt. 2019. Missing Migrants: Bias in Forensic Identification of Migrant Deaths on the U.S.-México Border, invited speaker at
Stanford University Faculty Seminar Series in CSRE, April 24, 2019.
Bridget F.B. Algee-Hewitt, Cris E. Hughes, Bruce E. Anderson. 2018. Temporal, Geographic and Identification
Trends in Craniometric Estimates of Ancestry for Persons of Latin American Origin. Forensic
Cris E. Hughes, Bridget F.B. Algee-Hewitt, Robin Reineke, Bruce E. Anderson. 2016. Temporal Patterns of
Mexican Migrant Genetic Ancestry: Implications for Identification. American Anthropologist,
Bios and Contact Information
Sophia Carrillo is a lawyer. She grew up in rural border community near California’s mass migrant grave. Learning about and being proximate to humanitarian issues at the border motivated her career in civil rights and human rights law. She is 2018 Stanford Law graduate.
Bridget F.B. Algee-Hewitt, PhD, is a Senior Research Scientist at Stanford University. She is a biological anthropologist who studies skeletal and genetic trait variation in modern humans. Her research combines data analytic and hands-on laboratory approaches to the estimation of the personal identity parameters – like sex, ancestry, stature, and age – that are essential components of the biological profile used in forensic identification of unknown human remains and for the paleodemographic reconstruction of past population histories in bioarchaeology. Concerns for social justice, human rights, and issues of group disparities underlie much of her work. As a practicing forensic anthropologist and geneticist, she provides forensic casework consultation to the medico-legal community.
From the Bookshelves: Debut novelist's tale of Sri Lankan refugees wins 2019 Harper Lee Prize for Legal Fiction
Wednesday, August 28, 2019
Starting Oct. 29, all non-citizen children residing abroad with U.S. citizen parents who are stationed abroad will not be considered for acquiring citizenship. A policy alert released by U.S. Citizenship and Immigration Services today says:
“USCIS no longer considers children of U.S. government employees and U.S. armed forces members residing outside the United States as ‘residing in the United States’ for purposes of acquiring citizenship” under the Immigration and Naturalization Act, the alert states. Effective on Oct. 29, 2019, all non-citizen children residing abroad with U.S. citizen parents who are either employed by the U.S. government or are members of the military stationed abroad “are not considered to be residing in the United States for acquisition of citizenship.”
Previously, children born to U.S. citizen parents were considered to be "residing in the United States," and therefore would be automatically given citizenship under Immigration and Nationality Act 320. Now, children born to U.S. service members and government employees, such as those born in U.S. military hospitals or diplomatic facilities, will not be considered as residing in the U.S., changing the way that they potentially receive citizenship. Instead of acquiring citizenship automatically at birth, they would need to naturalize under INA 322.
The explanations for how the rule will operate are laid out with some detail in the guidance, though many analysts are still figuring out the full extent of all the scenarios. For its part, USCIS spokesperson Meredith Parker told Task & Purpose: “The policy change explains that we will not consider children who live abroad with their parents to be residing in the United States even if their parents are U.S. government employees or U.S. service members stationed outside of the United States. As a result, these children will no longer be considered to have acquired citizenship automatically.” According to USCIS, previous legislation also explicitly said that spouses of service members who were living outside the U.S. because of their spouses were considered residing in the U.S., but "that no similar provision was included for children of U.S. armed forces members in the acquisition of citizenship context is significant." A fact sheet to accompany the rule appears here.
What is even less clear than how the guidance will operate is why the USCIS is making the change. USCIS contends that the change creates consistency across definitions of residency in different parts of their governing statutes.
UPDATE 8/29/2019 While the projected impact of the policy change will be numerically small, the backlash has been intense.
Answer: "The evidence is clear: No detention center is safe and healthy for children."
UC Davis Professors Leah Hibel and Caitlin Patler published an op-ed in the New York Times detailing why and how the Trump administration's effort to abrogate the Flores settlement, if successful,will cause great harm to children.
I am one of those lucky immprofs who also gets to teach Civil Procedure. Woot. Woot. (That's an unironic woot for those unsure, a burst of genuine enthusiasm).
It's the start of the semester and I'm teaching my students about how to initiate a federal law suit -- with a complaint. And we're reading the complaint biggies from SCOTUS including those two modern (at least post-my-law-school-graduation) pleading Goliaths: Twombly and Iqbal.
I'm scanning around the internet, looking for a photo of Iqbal when I stumble upon an article by Professor Shirin Sinnar (Stanford): The Lost Story of Iqbal, 105 Georgetown Law Journal 379 (2017).
Readers, let me tell you, this article is the bomb.
Sinnar uncovers the story of the man behind the lawsuit. A man summarily described by SCOTUS as "a citizen of Pakistan and a Muslim" who, following 9/11, "was arrested in the United States on criminal charges and detained by federal officials."
Sinnar interviews Iqbal both in Pakistan and over Skype from the United States. She details his immigrant story, his detention story, and his post-deportation story. Each is utterly compelling.
For those immprofs who don't teach Civ Pro... don't tune this post out. Know that all of your students will have read Iqbal. So the case (and Sinnar's details that aren't apparent on the face of the case) can be a reference point when you're discussing issues of detention (criminal and civil) as well as national security/terrorism.
If nothing else, the piece has that photo I was searching for.
According to NPR, the Cartel of the Northeast operates with impunity here, cruising around town in armored, olive-drab pickups with Tropas del Infierno, Spanish for "Soldiers from Hell," emblazoned on the doors.
A pastor named remains missing after recently being kidnapped from the Love Migrant House, a shelter he operated. One news report says extortionists grabbed Mendez when he refused to turn over Cuban migrants they wanted to shake down.
As NPR describes things,
"This is where the U.S. is sending migrants who have asked for asylum after crossing the Rio Grande near Laredo, Texas. More than 30,000 migrants have been sent back to Mexican border cities to await their day in U.S. immigration court under the "remain in Mexico" program. They are sent back from U.S. ports of entry and given a date — generally from two to four months in the future — to return and make their case for asylum before an immigration judge on a video link. About 4,500 of them have been sent to Nuevo Laredo, where mayhem is rampant and extorting migrants has become the cartel's latest income stream."
14-year-old U.S. citizen fights leukemia in the US without her Mexican noncitizen mom, who is not allowed to cross the border
Tuesday, August 27, 2019
Bethany Milton, who joined the Foreign Service in 2008, movingly writes in the NY Times about her decision to resign.
When a diplomat joins the State Department, she sits through two presentations toward the end of her weekslong orientation class. One is an afternoon session about the State Department’s storied dissent channel, which lets employees speak out internally about foreign policy decisions free from the fear of retaliation. How to use it, when to use it, what it means. The other is a much shorter presentation, one that lasts all of 15 seconds: “The day you can no longer publicly support your administration’s policies is the day you need to resign.”
[After explaining use of dissent cable to express concerns about travel ban]
I publicly supported this administration longer than some and for less time than others, and there are no easy answers to these questions. Every individual has his or her own commitments, own beliefs and own red lines; there is no inherent shame or honor in choosing to work for this administration or not, so long as it is a conscious choice. Some of the most noble work is being done by those who have chosen to stay in the State Department, advocating sensible policies or simply keeping the important bureaucracy of our lead foreign affairs agency running.
But when President Trump’s supporters chanted, “Send her back!,” I took that as a charge for me as well. I asked the Trump administration to send me back from my overseas posting, shipping home the family, foreign language textbooks and various tchotchkes from “shithole countries” that I’ve collected in my years as a United States diplomat. I am joining a growing list of Foreign Service officers who refuse to serve this administration any longer.
Immigration Article of the Day: Impeding or Accelerating Assimilation? Immigration Enforcement and Its Impact on Naturalization Patterns
Mary J. Lopez and Catalina Amuedo-Dorantes have published a new working paper with the Center for Growth and Opportuity at Utah State University. It's titled Impeding or Accelerating Assimilation? Immigration Enforcement and Its Impact on Naturalization Patterns.
Here is their abstract:
Naturalization bestows economic benefits to immigrants, their families, and communities through greater access to employment opportunities, higher earnings, and homeownership. It is the cornerstone of immigrant assimilation in the United States. Yet fewer than 720,000 of the estimated 8.5 million legal permanent residents eligible to naturalize do so on a yearly basis. Using data from the 2008–2016 American Community Survey, we analyze how the expansion of interior immigration enforcement affects naturalization patterns. We find that the intensification of interior enforcement curtails naturalization and, among those choosing to naturalize, delays it. Understanding how immigration policy influences naturalization decisions is important given its crucial role in migrant assimilation and its documented benefits.
Beyond the abstract, these key findings from the paper are worth highlighting:
- More intense immigration enforcement lowers the likelihood of naturalization by twelve percentage points.
- Among those who choose to naturalize, increased immigration enforcement delays the timing of naturalization by three months.
- These effects impact all migrants who could become citizens, including legal permanent residents.