Monday, September 30, 2019
Deportation dominates immigration policy debates, yet it amounts to a fraction of the work the immigration enforcement system does. This Article maps the interior structure of immigration enforcement, and it seeks to show how attention to its structure offers both practical and conceptual payoffs for contemporary enforcement debates. First, deportation should not be conceptualized as synonymous with immigration enforcement; rather, it is merely the tip of a much larger enforcement pyramid. At the pyramid’s base, immigration enforcement operates through a host of initiatives that build immigration screening into common interactions, such as with police and employers. Second, this enforcement structure has far-reaching hidden costs. Scholars have recognized some of these costs, such as the exploitation of undocumented noncitizens. Yet the full cost of this enforcement structure goes deeper. Beyond enabling exploitative actors, it leaves little room for good faith actors to incentivize socially valuable behavior. In its impact, immigration enforcement bears unappreciated structural similarities to certain low-level criminal law enforcement techniques, where a large population is likewise subject to ubiquitous monitoring by public and private actors alike. As important criminal law and sociological literature shows, this enforcement structure can carry far-reaching costs for society at large. It can create system avoidance (where the regulated population avoids contact with key legal institutions) and law enforcement tradeoffs (where efforts to enforce one law result in underenforcement of other laws). This Article applies structural insights from low-level criminal law enforcement to immigration enforcement to assess the costs of monitoring an undocumented population long-term. It calls for restructuring immigration enforcement to consider the full impact of interior enforcement in light of those who remain present in the United States.
Collisions (2018); Twelve-year-old Itan’s promising life in San Francisco is turned upside down when she comes home from school with her younger brother to find her apartment ransacked and her mother taken away by immigration police. Suddenly she must rely on her estranged uncle, a big rig truck driver. Itan manipulates him into taking them across the country in his truck, trying to find her mother and stop her deportation.
It should be no surprise, given the many studies concluding that immigrants commit crimes at lower rates than U.S. citizens, but Walter Ewing for Immigration Impact ("Deporting Immigrants Does Not Lower Crime, According to Study" writes that:
"The mass deportation of immigrants from the United States under the Secure Communities program has had no appreciable impact on local crime rates. Why? Because most of the immigrants being deported do not have serious criminal records.
That is the simple yet powerful conclusion of a recent study from the University of California, Davis. The study examines the relationship between deportations and crime rates in localities that rolled out Secure Communities at some point since its inception in 2008. The program expanded to encompass the entire country in 2013, was suspended by the Obama administration in 2014, and was reinstated by the Trump administration in 2017."
The study is authored by Annie Laura Hines and Giovanni Peri of UC Davis. The study finds the following:
"We document a surge in local deportation rates under [Secure Communities (SC)], and we show that deportations increased the most in counties with a large undocumented population. We find that SC-driven increases in deportation rates did not reduce crime rates for violent offenses or property offenses. Our estimates are small and precise, so we can rule out meaningful effects. We do not find evidence that SC increased either police effectiveness in solving crimes or local police resources. Finally, we do not find effects of deportations on the local employment of unskilled citizens or on local firm creation."
Vatican News reports on Pope Francis's celebration of the Mass for the World Day of Migrants and Refugees. In his homily, the Pope reminded us “it is not just about migrants.”
The first World Day of Migrants and Refugees was celebrated in 1914. Since then, this annual commemoration has become an opportunity to express concern for vulnerable people on the move, and to pray for increased awareness about the opportunities that migration offers.
Here is the text of the Pope's speech. Here is the gist of his message:
"Dear brothers and sisters, our response to the challenges posed by contemporary migration can be summed up in four verbs: welcome, protect, promote and integrate. Yet these verbs do not apply only to migrants and refugees. They describe the Church’s mission to all those living in the existential peripheries, who need to be welcomed, protected, promoted and integrated. If we put those four verbs into practice, we will help build the city of God and man. We will promote the integral human development of all people. We will also help the world community to come closer to the goals of sustainable development that it has set for itself and that, lacking such an approach, will prove difficult to achieve."
Sunday, September 29, 2019
Friends, we need to at least end the detention of migrant children. Regularly do or say something in opposition to the detention of children. Complain. Write a letter. Tweet. Call a member of Congress. Call the White House.
From time to time, I'll feature some folks who have spoken out or relevant actions that have been taken. For example, at the end of June, Henrietta Fore spoke out.
“The heart-rending photo published just yesterday showing the lifeless bodies of Salvadoran toddler Valeria and her father Oscar on the bank of the Rio Grande is a stark reminder of the perils facing migrants trying to reach the US,” said Henrietta Fore. “It is a searing image that should shake each of us to our core.”
In a strongly worded appeal to countries of origin, transit and destination to do more to protect vulnerable migrants, the UNICEF Executive Director spotlighted in particular the “dire” Government border shelter facilities on the US-Mexico border.
These centres cause lasting harm to youngsters in need of help, Ms. Fore said. Read more...
Nicole Acevedo for NBC News reports that veteran actress and playwright Conchi León had been looking forward to bringing a piece of her native Yucatán, México to the United States since March, but immigration authorities quashed her hopes a week before she was set to put on her play "La Tía Mariela" (Aunt Mariela) at the National Museum for Mexican Art in Chicago.
Mexico's Once Once Producciones had been working with León and the play's cast to present the U.S. premiere of "La Tía Mariela" as part of Chicago's third International Latino Theater Festival.
"We built a new set design for this production, so it could be more travel friendly. We've been rehearsing for a long time with our band and the cast, we even turned down gigs to commit to this," León told NBC News in Spanish.
Days before "La Tía Mariela" was set to premiere in Chicago, organizers of the Latino theater festival announced the play's cancellation because the "U.S. Department of Citizenship Immigration Services (USCIS), under the current administration, has officially denied granting touring visas for the cast and crew."
We are sad to announce that we have had to cancel the performance of La Tia Mariela due to circumstances beyond our control. We appreciate your continued support for Latino theater, and we apologize for this inconvenience.https://t.co/J3nD2DBGCx pic.twitter.com/kdDLFX951x
— Mexican Art Museum (@ExploreNMMA) September 24, 2019
In Adios Amor from PBS, the discovery of lost photographs sparks the search for a hero that history forgot—Maria Moreno, a migrant mother driven to speak out by her twelve children’s hunger. Years before Cesar Chavez and Dolores Huerta launched the United Farm Workers, Maria picked up the only weapon she had—her voice—and became an outspoken leader in an era when women were relegated to the background. The first farm worker woman in America to be hired as a union organizer, Maria’s story was silenced and her legacy buried—until now. These are the photographs that inspired Adios Amor. They were taken by George Ballis. Here is one of the pictures.
In this story in Colorlines, Bill Berkowitz looks at Maria Moreno's work and the documentary.
From the Bookshelves: Gringo Injustice: Insider Perspectives on Police, Gangs, and Law, 1st Edition Edited by Alfredo Mirandé
The recent mass shooting of 22 innocent people in El Paso by a lone White gunman looking to "Kill Mexicans" is not new. It is part of a long, bloody history of anti-Latina/o violence in the United States. Gringo Injustice brings this history to life, shedding critical light on the complex relationship between Latinas/os and the United States’ legal and judicial system.
Contributors with first-hand knowledge and experience, including former law enforcement officers, ex-gang members, attorneys, and community activists, share insider perspectives on the issues facing Latinas/os and initiate a critical dialogue on this neglected topic. Essays examine the unauthorized use of deadly force by police and patterned incidents of lynching, hate crimes, gang violence, and racial profiling. The book also highlights the hyper-criminalization of barrio youth and considers wide-ranging implications from the disproportionate imprisonment of Latinas/os. Gringo Injustice provides a comprehensive and powerful look into the Latina/o community’s fraught history with law enforcement and the American judicial system. It is an essential reference for students and scholars interested in intersections between crime and communities of Color, and for use in Sociology, Latino Studies, Ethnic Studies, Chicano Studies, Criminology, and Criminal Justice.
Here is the table of contents with chapter titles and authors:
Table of Contents
Saturday, September 28, 2019
It was a busy day in the federal courts yesterday, with several major (here and here) immigration decisions. Human Rights Watch released this important update on the Trump administration's efforts to abrogate the Flores settlement that since the late 1990s has governed the detention of migrant children:
"A federal judge’s ruling on September 27, 2019, to block the Trump administration’s new rules allowing indefinite detention of children with their parents is a victory for the rights of migrant children, Human Rights Watch said today.
“The Trump administration’s new rules were completely inconsistent with legal requirements designed to protect children from the severe harm and trauma of detention,” said Clara Long, acting deputy Washington director at Human Rights Watch. “The decision sends a clear signal to the administration that child protection should be one of the central goals of US immigration policy.”
Judge Dolly Gee of the United States District Court for the Central District of California ruled that these regulations are inconsistent with the Flores settlement agreement, signed by the government in 1997 to resolve a lawsuit brought in 1985 challenging the US government’s detention of migrant children. Human Rights Watch submitted a friend-of-the-court brief to Judge Gee setting out relevant human rights standards and supporting lawyers for detained children who challenged the regulations.
A core principle and requirement for migrant children taken into detention under the Flores agreement is that they should be released as “expeditiously” as possible. The Trump administration’s regulations provide instead for the indefinite detention of children with their parents in federal immigration facilities pending resolution of their immigration proceedings. The regulations attempt to end court oversight of immigration detention of children, including a court order that children must not be held for more than 20 days in facilities not licensed for childcare. The regulations also eliminate the requirement that facilities holding children must be licensed by states.
Judge Gee’s decision states that the US government has not fulfilled its obligations under the agreement, finding, “The New Regulations’ deficiencies and other ongoing litigation in this case, more than 20 years after the Agreement was executed, evidence [the US government’s] lack of substantial compliance.”
Human Rights Watch and others have documented ongoing failures to adequately protect the rights of migrant children. Human Rights Watch research in 2014 and 2015 found that members of families held for prolonged periods suffered trauma, depression, and suicidal thoughts. Other studies of detained immigrant children have also found high rates of post-traumatic stress disorder, depression, and anxiety, and psychologists agree that “even brief detention can cause psychological trauma and induce long-term mental health risks for children."
Human Rights Watch submitted comments on the Flores regulation when the new regulations were proposed last fall, recommending that the administration should withdraw the rules and instead dedicate their efforts to advancing policies that safeguard the health, safety, and best interests of children and their families, not least through robust, good-faith compliance with the Flores Settlement Agreement.
On September 24, the administration announced that it would send families seeking asylum to Mexico under the Migrant Protection Protocols, rather than releasing them while their cases are pending. The program has already resulted in tens of thousands of asylum seekers being sent to Mexico, where they experience severe shortages of shelter, serious barriers to due process, and threats of kidnapping, extortion, and other violence.
The government claims that regulations allowing indefinite family detention and barriers to asylum are needed because asylum-seeking families do not appear for immigration court proceedings. But a pilot detention alternative program in which families and unaccompanied children had legal representation resulted in a 98 percent rate of appearance in court.
“In this ruling, the judiciary has blocked one of the administration’s many unrelenting attacks on asylum, but the US government should do much more to protect the rights of child migrants and asylum seekers,” Long said. “Congress should ensure that children and families in need of protection are able to get fair hearings, in keeping with American and international human rights values.”"
Kristina Cooke for Reuters offered this report on the latest order in the Flores litigation. Brittny Mejia and Joel Rubin for the Los Angeles Times look at the Trump administration's three legal setbacks on the same day.
"In a landmark ruling addressing the legality of ICE’s signature deportation program, Secure Communities, a federal judge issued a permanent injunction blocking the agency from issuing arrest requests based solely on error-ridden electronic databases.
The ruling also enjoins ICE from issuing these requests, known as detainers, to states that have not expressly authorized their local law enforcement agencies to make arrests for deportation purposes in state law.
According to ICE, the Secure Communities program is responsible for 70% of all ICE arrests. A significant portion of those arrests stem from detainers issued solely on the basis of unreliable electronic databases. ICE officers, sitting behind computer screens, review the results of automated databases searches on every person booked into police custody anywhere in the country.
Based on nothing more than databases, ICE has subjected more than 2 million people to these unconstitutional arrests since the inception of the program in 2008.
Plaintiffs argued that the detainers — issued with a click of a button by agents who neither spoke to the individuals nor even reviewed their immigration files — were a violation of the fourth amendment of the U.S. Constitution that protects against “unreasonable searches and seizures.”
The court found the databases ICE relies upon to be rife with “serious errors.” “The result, of course,” the ruling issued by U.S. District Court Judge André Birotte Jr. stated, “is that many U.S. citizens become exposed to possible false arrest when ICE relies solely on deficient databases.” Numerous non-citizens legally in the U.S. were also wrongfully detained because of ICE’s reliance on the error-ridden databases.
The class-action case,, has been making its way through the courts since 2013. The plaintiffs were represented in U.S. District Court in Los Angeles by the American Civil Liberties Union Foundation of Southern California (ACLU SoCal), the National Day Laborer Organizing Network (NDLON), the National Immigrant Justice Center (NIJC), and the law firm Kaye, McLane, Bednarski + Litt LLP.
The decision applies to all ICE detainers issued out of the Central District of California, including to those issued by ICE’s Pacific Enforcement Response Center (PERC) in Laguna Niguel. The PERC issues detainers 24-hours a day within California and after-hours to 41 other states. The ruling means that ICE may not issue any detainer request from the PERC to any state that does not expressly authorize local law enforcement to make immigration arrests in state law and it may not issue a detainer without something more than database information to support a probable cause determination.
“This decision is a major indictment of ICE’s dragnet deportation program, which for more than a decade has subjected citizens and non-citizens to needless unconstitutional arrests at the mere click of a button,” said Jennie Pasquarella, senior staff attorney and director of immigrants’ rights for the ACLU SoCal. “Reams of evidence presented at trial demonstrated ICE’s complete disregard for the people impacted by its actions and its concern only with using an automated system to arrest record numbers of people.”
The decision in the non-jury trial was issued by the court [late yesterday].
The case was named for plaintiff Gerardo Gonzalez, who was detained by the Los Angeles Sheriff’s Department based on a request issued by ICE in 2012. But Gonzalez was a natural born U.S. citizen, born in Pacoima, California.
“By defending themselves, immigrants have once again defended bedrock constitutional rights for everyone,” said Pablo Alvarado, a director of NDLON. “This victory is a huge boost for cities and states throughout the country who have known for awhile that the best way to truly secure communities is to kick ICE out of our local police and sheriff departments. We will continue to organize in support of this goal.”
The judge, in his order, enjoined ICE from issuing detainers “based solely on database searches and rely upon information from sources that lack sufficient indicia of reliability.”
“For over a decade now ICE has been systematically violating the Fourth Amendment rights of hundreds of thousands of individuals each year through its detainers,” said Ruben Loyo, senior litigation attorney at the NIJC. “This ruling should be yet another reminder to law enforcement that if you comply with detainers you too will be held liable.”
The American Immigration Council released this press released on the litigation seeking to halt President Trump's efforts to greatly expand expedited removal:
The National Association of Immigration Judges, the union that represents 420 immigration judges, is accusing the Department of Justice, where the immigration courts are housed, of unfair labor practices. The union outlined its claims in two filings submitted to the Federal Labor Relations Authority that followed the DOJ's attempt to certify the union.
“The current state of affairs is that the judges have been completely deprived in their practice to exercise independent decision-making authorities,” said Judge Ashley Tabaddor, the union’s president. “They are in constant fear and a constant state of duress.”
In the search for top talent, Macarthur chose two immigrant writers who write about the migration experience. The poet and fiction writer Ocean Vuong, 30, wrote his first novel, "On Earth We're Briefly Gorgeous" as a Vietnamese immigrant son's letter to his illiterate mother.
Valeria Luiseli wrote a nonfiction memoir of her time as a translator in NYC immigration courts "Tell Me How It Ends" (2017) (previously profiled on ImmigrationProf blog). She also wrote about similar themes in the "Lost Children Archive" (2019), a fictionalized account of her own family’s road trip from New York to the U.S.-Mexico borderlands, with stories of the unfolding Central American migration crisis woven into the narrative.
Explore their stories on social media with the hashtag #MacFellow, and check out all of the 2019 MacArthur Fellows.
One week ago, I was in Grand Forks, ND, for a conference on implicit bias and the legal profession. One of the most extraordinary sessions concerned the criminal justice system and the deaf and hard of hearing community.
The presentation was led by Pam Smith and Kathy Frelich of the Adult Outreach department for the North Dakota School for the Deaf/Resource Center for Deaf and Hard of Hearing.
The talk helpfully started with "Hearing Loss 101." In just one small part of that instruction, I learned a tremendous amount about hurdles facing deaf individuals. For example, did you know that:
- ASL (American Sign Language) does not correspond to English? It's closest to French and not real close to that.
- CASE is another form of sign language: Conceptually Accurate Signed English. This language uses ASL signs but in an English structure.
- English is always a second language for a deaf individual, such that written communication is not a great substitute for signing.
- Language deprivation is common for a deaf individual. Think about it: hearing kids get all sorts of ancillary language instruction from the TV, radio, or listening to grownups and other kids talk around them. A deaf individual only learns words from one-on-one instruction.
So this brings us to the unique problems facing deaf refugees. They may have been brought up without any language -- not their home language, not sign language of any sort. This is particularly true if a refugee has become deaf through, say, childhood illness such as untreated ear infections, instead of growing up in a family with other deaf members. They may have learned to communicate with their close family members through a form of pantomime. But they may not have language as you and I might think of it.
Such individuals face enormous challenges navigating life in the United States. And even greater challenges if intersecting with the American legal system. For those in the criminal justice system, those language barriers may render an individual incompetent to stand trial.
Although I'm in my 11th year of teaching immigration law, I hadn't previously thought about the unique hurdles facing deaf refugees. They are daunting.
Friday, September 27, 2019
In a press release, Immigration and Customs Enforcement announced the recent results of an enforcement operation in New York: "Officers from U.S. Immigration and Customs Enforcement's (ICE) Enforcement and Removal Operations (ERO) arrested more than 80 during a 5-day period, ending Sep. 25, in New York City, the Hudson Valley and Long Island." However, the release proceeds to level a veiled threat to "sanctuary jurisdictions," which often have been criticized by President Trump and other high level officials of the administration:
"Any local jurisdiction thinking that refusing to cooperate with ICE will result in a decrease in local immigration enforcement is mistaken. Local jurisdictions that choose to not cooperate with ICE are likely to see an increase in ICE enforcement activity, as in jurisdictions that do not cooperate with ICE the agency has no choice but to conduct more at-large arrest operations. A consequence of ICE being forced to make more arrests on the streets is the agency is likely to encounter other unlawfully present foreign nationals that wouldn’t have been encountered had we been allowed to take custody of a criminal target within the confines of a local jail." (emphasis added).
On the same day, ICE announced the results of another enforcvement operation in Boston. The press release includes similar language to that in the New York press release:
"In years past, most of these individuals would have been turned over to ICE by local authorities upon their release from jail based on ICE detainers. When non cooperative jurisdictions, including those within the six states of New England do not honor ICE detainers, these individuals, who often have significant criminal histories, are released onto the street, presenting a potential public safety threat.
Impeachment talk is now gripping the entire nation. I am expecting a rough ride as the process plays out. It will be fascinating and amazing at times, but don't expect anything to be worked out very soon.
"Hubris, the Greeks tell us, can be the final downfall of the mighty, especially the mighty whose most salient trait is extreme arrogance. . . .
NBC News reports that President Donald Trump's administration has once again set the lowest cap on refugee admissions in the program's almost 40 year history, allowing fewer than 20,000 resettlements.
The administration will only propose resettlements for 18,000 of the 368,000 asylum and refugee applications it expects to field in the upcoming fiscal year, the Department of State said in a press release. The proposed number is a fraction of the 85,000 cap proposed by former president Barack Obama in 2016.
Trump's administration said it was focusing on "assisting refugees where they are concentrated" and cited the drain on American resources caused by illegal immigration.
"Indeed, it would be irresponsible for the United States to go abroad seeking large numbers of refugees to resettle when the humanitarian and security crisis along the southern border already imposes an extraordinary burden on the U.S. immigration system," the State Department said in its release.
Department of Homeland Security acting Secretary Kevin McAleenan also said that the proposed cap for the 2020 fiscal year would allow the department to address "the ongoing crisis at the southern border."
According to the United Nations High Commissioner on Refugees, there are 70.8 million forcibly displaced people in the world today. This includes 25.9 million refugees and 3.5 million asylum seekers.
Louise Gorsuch holds the Bible as her husband, Neil, is sworn in as a U.S. Supreme Court justice by Chief Justice John G. Roberts Jr. in 2017. Photo from Wikimedia Commons.
Debra Cassens Weiss for the ABA Journal writes about the immigrant experience of Louise Gorsuch, the wife of Supreme Court Justice Neil M. Gorsuch. Louise became an American citizen in February 2002. She writes about her experiences as an immigrant in an article -- and why she became a U.S. citizen -- for Fox News.
Louise Gorsuch met her husband in England. They were engaged and moved to Washington, D.C.
“Unlike so many immigrants who come here because they are fleeing something—perhaps violence or political persecution—I wasn’t escaping,” she writes. “My story is less dramatic but shared by many.” Gorsuch tells of navigating cultural differences in the United States. “Who knew, for example, that you couldn’t remove a stick of butter from the carton of four and buy it separately?” she says. “After all, the lady in front of me tore the twelve-egg carton down to six. And why did my husband’s English-speaking grandmother need him to translate for me?”
Gorsuch says she is a country girl who began to see the United States in a new light when she and her husband attended a rodeo in Frederick, Maryland. “This was the America I would come to love,” she says. “It seems trite to talk about a melting pot but the diversity of cultures and viewpoints offers a home to any soul. I had found my place.” Gorsuch became a citizen because she wanted to vote and “go all-in on the project of being in a republic premised on the right to rule oneself, and to share the obligation to make the republic work.”
In the Flores Exhibits videos, artists, lawyers, advocates, and immigrants read the sworn testimonies of children held in detention facilities at the U.S. / Mexico border. This project is part of a national campaign to establish legal protections for immigrant children held in U.S. government facilities.
The 1997 Flores Settlement Agreement sets a limit on the length of time a child can be detained, requires that they be held in the least restrictive area possible, and guarantees access to basic hygiene supplies, adequate nutrition, and appropriate clothing.
In June 2019, a team of lawyers who work as independent monitors of the detention facilities took more than 60 testimonies from children detailing lengthy stays, ongoing family separations, and dirty, unsafe conditions. These sworn testimonies were submitted as exhibits in a motion for a Temporary Restraining Order filed by the National Center for Youth Law. The motion seeks to provide immediate relief to children living without access to basic hygiene supplies and adequate nutrition or sleep.