ImmigrationProf Blog

Breaking news: Trump bans travel from China, Quarantines US Citizens

NPR is reporting that President Trump declared that coronavirus has become a public health emergency in the US and banned travel from China effective Sunday, February 2. 

The declaration of a public health emergency — which will become effective Sunday at 5 p.m. ET — enables the government to take several temporary measures to contain the spread of the virus, which so far has been confirmed in six people in the U.S.

The first action is that U.S. citizens who have been in Hubei province China in the past 14 days will be subject to 14 days of mandatory quarantine if they travel back to the United States. This expands on an annoucnment earlier today that American citizens who had evacuated from Wuhan earlier in the week would be quarantined for 14 days at March Air Reserve Base in Southern California. This would be the first time in 50 years the U.S. has instituted a quarantine order.

The U.S. is additionally temporarily suspending entry of travelers who are not U.S. citizens if they are deemed to pose a risk of transmitting the virus. "Foreign nationals other than immediate family of U.S. citizens and permanent residents who have traveled in China in the last 14 days will be denied entry into United States," HHS Secretary Azar said.

Third, U.S. citizens who have been in other areas of mainland China in the past 14 days will be subject to screening at the airport of entry and heightened monitoring for 14 days.

The text of the Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Persons who Pose a Risk of Transmitting 2019 Novel Coronavirus is here.

 

MHC

Breaking News: Trump expands travel ban today [UPDATED]

President Trump issued his expanded travel ban today, the same week that the original travel ban first issues in January 2017.

According to the Wall Street Journal, "The Trump administration said the policy was designed to tighten security for countries that don’t comply with the U.S. minimum security standards or cooperate to prevent illegal immigration." Under the proclamation signed by President Trump, citizens from Nigeria, Eritrea, Myanmar and Kyrgyzstan won’t be allowed to apply for visas to immigrate to the U.S.  Two other countries, Sudan and Tanzania, will be barred from participating in the diversity visa lottery, which randomly awards green cards to 50,000 immigrants from underrepresented countries annually. Many of the recipients are from African countries.

UPDATE The full text of the Proclamation on Improving Enhanced Vetting Capabilities and Processes for Detecting Attempted Entry is here.

MHC

A Real-o-thetical Statutory Interpretation Hypo

On August 13, 2010, Congress pass PL 111-230. Section 402(b) of this law reads as follows:

You can give your students the above segment or give them this version, with the key language highlighted:

FWIW, the fee is currently 4,000 (since PL 114-113 in 2015) and will be in play through 2027 (per PL 115-123 in 2018).

Here's the question: Does the above language require H1B employers to pay a fee when a future employee is seeking entry into the U.S. via a port of entry for the first time? Or does it extend to employees who hire individuals who are changing their status in the U.S., say from an F-1 to an H1B.

It's a great opportunity to talk about INA 101(a)(13), everyone's favorite statutory provision!

Indeed, this would be a good hypo to utilize after discussion of Rosenberg v. Fleuti.

This question of statutory interpretation is currently being litigated in ITServe Alliance, Inc. et al. v. Cuccinelli. Forbes has excellent coverage of the suit. How much is at stake? Something like $350 MILLION dollars.

That's a lot of dough.

-KitJ

Supreme Court allows public charge clause that kept Nazi-era refugees from the US

 

The Trump administration's has now scheduled the implementation of the new public charge exclusion.  Laurel Leff for The Conversation reminds us that, during World War II, the public charge exclusion served as the basis for denying entry to roughly 300,000 Jewish refugees. fleeing Nazi Germany  Consular officials denied visas to everyone, including Jewish people fleeing the Holocaust,  found "likely to become a public charge."  Leff's view:  "As someone who has studied European Jews’ attempts to escape Nazi persecution and immigrate to the U.S., the administration’s evocation of the public charge clause is chilling."

KJ

Why Some Young Activists Are Dedicating Their Vote To Immigration

MTV News discusses the 2020 election and immigration with some United We Dream Action activists "about why they're dedicating their first vote ever to immigration, and which politicians they believe are getting the conversation right."

KJ

Venezuelans, Cubans and Nicaraguans seeking U.S. asylum in larger numbers

Alexandra Villarreal for NBC News reports that the immigration courts are seeing increasing numbers of  Venezuelans, Nicaraguans and Cubans. Between September 2018 and December 2019, they became the fastest growing nationalities caught up in the courts, according to Syracuse University’s Transactional Records Access Clearinghouse. The number of Cubans with pending cases more than quadrupled, and cases involving Venezuelans and Nicaraguans also surged.

The report indicates that close to 4.8 million Venezuelan migrants and refugees have left their country, "a failed state with an economy in free fall and a lack of jobs, medicine or food."

Nicaraguans are fleeing their homes after anti-government protests in 2018 were crushed by national police and pro-government groups, resulting in hundreds of deaths and thousands of injuries. Human Rights Watch has reported that protesters there were raped, electric-shocked, waterboarded and beaten by authorities.

In Cuba, residents are dealing with an economic slowdown and ongoing issues with political repression along with hard-line U.S. policies under the Trump administration. In fiscal year 2019, Cubans submitted more than 18,000 credible fear claims, a first step toward asylum.

KJ

A social virus: anti-immigrant and anti-Chinese sentiment spreading with coronavirus [UPDATED]

Several media outlets have started to cover the social cost of the epidemic: anti-immigrant and anti-Chinese sentiment is spreading along with the coronavirus. This is not a new phenomenon: Irish immigrants were blamed for cholera, African immigrants for ebola, and Chinese immigrants for SARS. The latest wave of anti-immigrant sentiment converges with rising tensions against China due to economic competition and racial resentments in general. Trump issued a travel ban against China on the basis of a public health emergency. There are mounting visa denials for entry to the US (and beyond the US, bars on entry to Singapore, Mongolia and Russia), insensitive media coverage, social rejection and distate for unfamiliar types of Chinese food. The US is discouraging travel to China. Many universities have announced that travel to China will not be approved; some are recalling American students from Chinese universities; and others schools have expressed suspicion about Chinese international students, e.g. ASU started an online petition to cancel classes to avoid close proximity to Chinese students.

On a personal note, the coronavirus has been stirring up complicated racial dynamics in my own community. Though there is not a single confirmed case in Colorado, several Chinese schools cancelled their lunar new year's celebrations. The WeChat for my local Chinese school has been buzzing with calls for these closures and some have been sharing concerns in city hall meetings, expressing their fear of contagion and their fear of scapegoating if the virus spreads due to a large gathering of Chinese people. Apropos of this mostly first-generation mainland Chinese community's recent experiences, there seems to be a mistrust of data, government actions, and one another folded in as well. All in all, figuring out a community response been divisive. In my mind, it is the product "misguided precautions" that resemble the course of racial profiling in law enforcement that is allegedly based on statistics and science about the correlation of racially-defined groups and risky or undesirable behaviors; it worries me. In others' minds, it is a matter of public safety and it is necessary.

MHC

USCIS Announces Public Charge Rule Implementation Following Supreme Court Stay of Nationwide Injunctions

Earlier this week, a 5-4 Supreme Court stayed an injunction barring the Trump administration from implementing the new public charge rule.  The administration is moving forward with implementation.  

U.S. Citizenship and Immigration Services posted the following news release yesterday:

"U.S. Citizenship and Immigration Services (USCIS) will implement the Inadmissibility on Public Charge Grounds final rule (“Final Rule”) on Feb. 24, 2020, except for in the State of Illinois where the rule remains enjoined by a federal court as of Jan. 30, 2020. Under the Final Rule, USCIS will look at the factors required under the law by Congress, like an alien’s age, health, income, education and skills, among others, in order to determine whether the alien is likely at any time to become a public charge.

The Final Rule, issued in August and originally scheduled to be effective in October, prescribes how DHS would determine whether an alien is inadmissible to the United States based on the alien’s likelihood of becoming a public charge at any time in the future, as set forth in the Immigration and Nationality Act. The Final Rule also addresses USCIS’ authority to issue public charge bonds in the context of applications for adjustment of status.  Finally, the Final Rule includes a requirement that aliens seeking an extension of stay of change of status demonstrate that they have not received public benefits over the designated threshold since obtaining the nonimmigrant status they seek to extend or change.

`Self-sufficiency is a core American value and has been part of immigration law for centuries. President Trump has called for long-standing immigration law to be enforced and U.S. Citizenship and Immigration Services is delivering on this promise to the American people,' said Ken Cuccinelli, the Senior Official Performing the Duties of the Deputy Secretary for DHS. `By requiring those seeking to come or stay in the United States to rely on their own resources, families and communities, we will encourage self-sufficiency, promote immigrant success and protect American taxpayers.'

Except for in the State of Illinois, USCIS will only apply the Final Rule to applications and petitions postmarked (or submitted electronically) on or after Feb. 24, 2020.  For applications and petitions that are sent by commercial courier (e.g., UPS/FedEx/DHL), the postmark date is the date reflected on the courier receipt.  The Final Rule prohibits DHS from considering an alien’s application for, certification or approval to receive, or receipt of certain non-cash public benefits before Oct. 15, 2019, when deciding whether the alien is likely at any time to become a public charge.  In light of the duration of the recently-lifted nationwide injunctions and to promote clarity and fairness to the public, DHS will now treat this prohibition as applying to such public benefits received before Feb. 24, 2020.  Similarly, the Final Rule prohibits DHS from considering the receipt of public benefits by applicants for extension of stay and change of status before Oct. 15, 2019 when determining whether the public benefits condition applies, and DHS will now treat this prohibition as applying to public benefits received on or after Feb. 24, 2020.

USCIS will post updated forms, submission instructions, and Policy Manual guidance on the USCIS website during the week of Feb. 3, 2020, to give applicants, petitioners, and others ample time to review updated procedures and adjust filing methods. After Feb. 24, 2020, everywhere except in the State of Illinois, USCIS will reject prior editions of forms if the form is postmarked on or after Feb. 24, 2020. If USCIS receives an application or petition for benefits using incorrect editions of the forms, USCIS will inform the applicant or petitioner of the need to submit a new application or petition using the correct forms.

USCIS will continue to release information through its website in the weeks leading to the rule’s implementation date, including in the event that the injunction Illinois is lifted. This will include an update to the USCIS Policy Manual.

In the coming weeks, the agency is planning to hold a public engagement for immigration attorneys, industry representatives, and other relevant groups to discuss the final rule.

DHS remains enjoined from implementing the Final Rule in the State of Illinois. Should the injunction in Illinois be lifted, USCIS will provide additional public guidance."  (emphasis added).

KJ

7th Circuit is aghast at 'obduracy' of Board of Immigration Appeals, which refused to implement its decision

Debra Cassens Weiss for the ABA Journal reports on an immigration opinion of the U.S. Court of Appeals for the Seventh Circuit "didn’t mince words in a Jan. 23 opinion chastising the Board of Immigration Appeals for defying its remand order and concluding the appeals court had ruled incorrectly in the case."

“We have never before encountered defiance of a remand order, and we hope never to see it again,” the 7th Circuit said in a unanimous panel decision by Judge Frank Easterbrook (joined by William Joseph Bauer and David Hamilton). 

As the court described the case, which involved the issuance of a U visa, 

"What happened next beggars belief. The Board of Immigration Appeals wrote, on the basis of a footnote in a letter the Attorney General issued after our opinion, that our decision is incorrect. Instead of addressing the issues we specified, the Board repeated a theme of its prior decision that the Secretary has the sole power to issue U visas and therefore should have the sole power to decide whether to waive inadmissibility. The Board did not rely on any statute, regulation, or reorganization plan transferring the waiver power under §1182(d)(3)(A)(ii) from the Attorney General to the Secretary. Nor did the Board discuss whether only aliens outside the United States may apply for relief under §1182(d)(3)(A)(ii). Likewise the Board did not consider whether Baez-Sanchez is entitled to a favorable exercise of whatever discretion the Attorney General retains. In sum, the Board flatly refused to implement our decision." (emphasis added).

The Seventh Circuit said its remand was “met by obduracy,” and it would not give the board “a free pass for its effrontery” by remanding the case again.

Instead, the court vacated the board ruling and ruled for Jorge Baez-Sanchez, a Mexican citizen seeking a special “U visa” to remain in the United States. The decision allows Baez-Sanchez to apply for the visa.

Judge Easterbrook's opinion in the case received a fair amount of attention from the media and immigration law professors.  Above the Law even posted about it.

KJ

Your Playlist: Cypress Hill

What pairs well with drug-related removal grounds? Just about anything, if I'm being honest. There are a million and one drug-related songs to choose from. But I'm partial to Cypress Hill, Hits from the Bong.

-KitJ

Larsen Lam ICONIQ Impact Award

Launched on January 29, 2020, the Larsen Lam ICONIQ Impact Award is a $12 million global competition to fund a solution that secures a durable future for refugees and improves their lives.

The Story

Inspired by a personal connection to refugee families, the Larsen Lam ICONIQ Impact Award is sponsored by philanthropists Lyna Lam and Chris Larsen.

Lyna and her family were refugees after the Vietnam War and Cambodian Genocide, and spent three years in various refugee camps. After being sponsored to the United States, Lyna earned her way out of public housing to work in technology, became a small business owner of a café, and now serves as founder and Executive Director of the A Khmer Buddhist Foundation, a nonprofit that helps the Cambodian American community and other refugee groups. Lyna and her Foundation work on a variety of issues including general refugee support, community health issues, and archiving ancient Khmer scripts. She is currently building Wat Khmer Kampuchea Krom, a Cambodian temple in San Jose, California.

Chris is an angel investor, serial entrepreneur, current Executive Chairman of Ripple and was a co-founder/former CEO of several other innovative companies. In 2015, Chris co-founded Rippleworks, a nonprofit foundation that partners world-changing ventures with world-class experts to help social ventures scale their impact globally.

Chris and Lyna are grateful for the opportunity to offer this Award in honor of their family’s history, as well as their commitment to build stronger, brighter communities at home in the Bay area of California and around the world.

The Challenge

According to the UN Refugee Agency, the refugee population is increasing – latest figures show that a person becomes displaced every two seconds. More than 70 million people – nearly half of whom are children – have been forcibly displaced by war, conflict, and persecution. A majority of today’s refugees are displaced for a long period and has turned the refugee crisis into a protracted one. At the end of 2017, two-thirds of refugees globally had been in exile for at least five consecutive years in a given asylum country (UNHCR Global Trends: Forced Displacement in 2018).

The Solution

The Larsen Lam ICONIQ Impact Award will award $12 million to scale an innovative solution aimed to support the well-being of refugees and secure a durable future for them across one or more of the following areas:

(1) repatriation, helping refugees return to their former country of nationality in safety and dignity;

(2) local settlement and integration of refugees in host countries; and

(3) resettlement of refugees in a third country i.e. beyond the country of asylum.

Strong solutions will include a powerful, scalable, and innovative strategy that strengthens existing efforts and will result in transformational, long-term change. Applicants should have deep community roots with authentic stakeholder relationships and a collaborative approach to engage community. Solutions must be backed by robust evidence and understanding of the landscape to create lasting change and serve as a model for other communities. We are seeking impressive teams comprised of seasoned experts well-positioned to effectively and efficiently execute an innovative approach to produce deep, lasting impact.

Interested eligible organizations are invited to assess your fit for the Larsen Lam ICONIQ Impact Award and review the scoring rubric to learn more about what makes a strong application.

KJ

Immigration judges association calls for independence from the Dapartment of Justice

Rafael Bernal for the Hill reports that the National Association of Immigration Judges (NAIJ) President Ashley Tabbador yesterday told members of the House Judiciary Subcommittee on Immigration and Citizenship that "America needs an immigration court that is free from improper influence on the decisions of immigration judges."

Immigration courts are a part of the Department of Justice's Executive Office for Immigration Review (EOIR), and their decisions can be directly overruled by the attorney general. There has been friction between the judges and the Trump administration.  Last August the EOIR petitioned the Federal Labor Relations Authority to decertify NAIJ as a union.

KJ

Use of Video in Place of In-Person Immigration Court Hearings

TRAC Immigration released a report showing that, during the first quarter of fiscal year 2020 (October - December 2019) one out of every six (17%) of the 57,182 final Immigration Court hearings that concluded an immigrant's case was held by video. This may in fact underestimate the current use of video hearings given apparent limitations in the data.

Court records indicate that video hearings were much more likely if the immigrant was detained. Three out of four (77%) detained master calendar hearings which reached a decision were held over video. Over forty percent (44%) of credible fear and reasonable fear hearings that reached a decision were also held by video. And when a decision on granting bond was reached, one out of three (34%) custody hearings were held by video. The odds of a video hearing were lowest for separate individual hearings scheduled to hear an individual's asylum or other claim for relief from removal.

Click the link above more details.

KJ

 

Brazil Swept into MPP Protocols

Migrants coming to the U.S. from Brazil will now be subject to the Migrant Protection Protocols (aka "Remain in Mexico"). As the DHS announced in a press release:

Today, the Department of Homeland Security began processing Brazilian migrants for return to Mexico under the Migrant Protection Protocols (MPP). The number of Brazilian nationals arriving at the Southwest border has tripled in just the last year. The United States continues to work with its partners in the region, as well as other countries, to stem the flow of irregular migration to the Unites States. MPP is one of many tools the Department has implemented to ensure those with meritorious asylum claims are timely adjudicated, while fraudulent claims are property identified.

First implemented in January 2019, pursuant to a law passed by Congress in 1996 on a bipartisan basis, the MPP program allows certain aliens to remain in Mexico while awaiting court proceedings in the United States. This law does not limit the program to any one nationality or language. The fact that Brazilians are now part of the program shows that the Department, along with its Mexican counterparts, have always sought to expand the program in a safe and responsible manner. MPP has been a crucial element of the Department’s success in addressing the ongoing crisis, securing the border, and ending catch and release.

MPP remains a cornerstone of the Department’s efforts to restore integrity to the U.S. immigration system and relieve the crushing backlog of pending asylum cases. Our nation is more secure because of the program.

-KitJ

American Immigration Council: Policies Affecting Asylum Seekers at the Border The Migrant Protection Protocols, Prompt Asylum Claim Review, Humanitarian Asylum Review Process, Metering, Asylum Transit Ban, and How They Interact

For decades, adults, families, and unaccompanied children have been arriving at the U.S.-Mexico border to seek protection from harm in their home countries. U.S. law allows any noncitizen who is in the United States, or at the border, to apply for protection. However, the Trump administration has instituted a number of new policies, many being challenged in court, designed to deter families from seeking asylum at the U.S. southern border. Policies like the Migrant Protection Protocols (also known as “Remain in Mexico”), metering, the Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP) programs, and a ban on asylum for individuals who transited through Mexico before arriving at the U.S.-Mexico border have reshaped the state of asylum at the border in 2019 and 2020. This American Immigration Council fact sheet explains the complicated interplay and application of protection and border processing policies.

How has the process for seeking asylum at the border changed?

As of late January 2020, there are four significant new Trump administration policies affecting asylum seekers in effect across the southern border, all of which have a significant impact in shaping the current state of the border. These policies do not apply to asylum applicants at the U.S. northern border with Canada.

Click the link above for details.

KJ

Legal, Non-Governmental Experts File Amicus in Flores v. Barr Arguing 9th Circuit Should Uphold Historic Settlement to Prevent U.S. Violations of Treaty and Customary International Law by Ian M. Kysel

Legal, Non-Governmental Experts File Amicus in Flores v. Barr Arguing 9th Circuit Should Uphold Historic Settlement to Prevent U.S. Violations of Treaty and Customary International Law

Ian M. Kysel, Visiting Assistant Clinical Professor of Law, Cornell Law School

More than 125 legal scholars and more than a dozen non-governmental organizations filed an amicus brief last night in support of class counsel in the long-running litigation, Flores v. Barr, now before the Ninth Circuit. The case is on appeal from District Court Judge Gee’s order enjoining regulations promulgated last year and rebuffing the government’s efforts to terminate the settlement under FRCP 60(b). The brief is particularly notable for the breadth of expertise of amici: it includes multiple current and former senior U.N. experts (including members of the U.N. Human Rights Committee and U.N. Committee on the Rights of the Child and mandate holders of multiple U.N. Special Rapporteuriships), leading scholars of international law, human rights, children’s rights, immigration law as well as senior members of the legal academy (among them former Deans of both Yale Law School and Harvard Law School) hailing from 25 U.S. states, the District of Columbia and Puerto Rico as well as faculties in Australia, Austria, the Netherlands, South Africa, Spain and the United Kingdom. (I serve as co-counsel for amici along with Aaron X. Fellmeth of Arizona State University, Warren Binford of Willamette University, Michael Garcia Bochenek of Columbia University, Stella Burch Elias of the University of Iowa and Blaine I. Green and Erica Turcios Yader of Pillsbury Winthrop Shaw Pittman, LLP.) In the September 2019 decision under appeal, Judge Gee found, among other things, that the proposed regulations would permit the indefinite detention of migrant children in secure or more secure settings and limited their ability to challenge aspects of their detention in U.S. government custody or under U.S. government jurisdiction. The amicus brief argues that the 9^th Circuit must decide the appeal in a manner consistent with U.S. international law obligations under ratified treaties (particularly the International Covenant on Civil and Political Rights and the 1967 Protocol to the 1951 Refugee Convention) and customary international law. Under these obligations, amici argue, the affronts to the rights and welfare of children contemplated by the regulations squarely violate U.S. international law prohibitions on arbitrary detention of children and obligations to provide children with special measures of protection and to have their best interests be a primary consideration. Briefing in the matter is ongoing and the amicus is here.

KJ

Thoughts on Public Charge Stay Order and Nationwide Injunctions by Geoffrey A. Hoffman

Thoughts on Public Charge Stay Order and Nationwide Injunctions

By Geoffrey A. Hoffman*

On the issue of nationwide injunctions, it is interesting that this is where the concurrence in the public charge case chose to center its discussion. Instead of dealing head-on with any of the substance of the stay order including any equitable factors or with the administration's policy expanding the definition of public charge in DHS's Final Rule, the linchpin for Justices Gorsuch and Thomas appears to be nationwide injunctions. The concurrence picks up the baton where Justice Thomas left off in the travel ban case in his concurrence in that case. There needs to be a full discussion of why we need nationwide injunctions, especially if a defendant is a federal agency. The fact that no justice decided to dissent in the public charge case is interesting. It is also troubling, again as we saw with the MPP stay order decision from the high court last September, that there was no opinion issued to explain the granting of the stay in favor of the government.

The theme of nationwide injunctions is most convenient. It allows the high court to sidestep the issues, to premise any stay decision on procedural, logistical or mechanical considerations while undermining any preliminary injunction that forces the government to hold-off on potentially disastrous and ill thought-out policies. Given the fact that some of these cases are class actions, where the class is potentially nationwide, it seems that that would militate toward solidifying the argument for a nationwide class. By harping on the procedural inconveniences of 'universal' or 'cosmic' injunctions, as Justice Gorsuch put it, the justices have hit it upon a good way to always reverse injunctive relief against any party that goes beyond a very restrictive, limited or specific geographic area.  But this is not a case where a private party is trying to enjoin behavior of a similarly situated private defendant who is operating within a limited area. Quite the contrary.

It makes no sense to decry the unfairness of a nationwide injunction when you are dealing with a national policy, the defendant is an agency of the federal government operating nationally, the issue is an immigration policy, and the parties impacted include potentially everyone who comes into contact with USCIS who seeks adjustment of status. It makes no sense to reject a nationwide class when the policy is applied to all applicants for adjustment in every district office across the U.S. In terms of the legal authority for injunctive relief against the government, there is that line of cases talking about the need for national uniformity surrounding immigration policy, and the Supreme Court has time and time again consistently held that immigration is exclusively a matter for the federal government, with a few exceptions. See e.g. Arizona v. United States, 567 U.S. 387 (2012). 

As far as a recent case where an injunction designed to stop DACA and allow the rescission to proceed was denied to the government.  In that case it is worth reviewing the important decision at the District Court level of Judge Hanen in Texas v. United States. There, the judge went through very thoughtfully all the factors for the stay application and concluded it was not in the public interest. Judge Hanen's decision should be a template for what courts should consider in assessing the need for injunctive relief in the public charge context. In Judge Hanen's case he was very faithful to what the balancing of factors for injunctive required. He correctly came to the conclusion that a fair balancing of the factors led to the conclusion that injunctive relief in favor of the government would not be in the public interest.  Importantly, Judge Hanen did this even while at the same time expressing his concerns about the legality of DACA.  

Why did the Supreme Court not do the same in assessing the request for a stay in favor of the government here? This is especially so when it appears that the public charge issue may possibly be a bigger disaster than DACA rescission, MPP, and other policies of the administration. If the administration wanted to fashion a rule to routinely deny adjustment (and consular decisions) to people who do not meet its ideal for intended immigrants, it could not have hit upon a better pretext.  By enlarging the definition of public charge and heightening this “heavily weighted negative factor" for people who have shown an economic need in the past, many families are at risk, including U.S. citizen children, who will be harmed by this policy.

By saying all this, I do not discount the potential inconvenience and problems with having various federal judges in different districts issuing possibly conflicting injunctions.This is called the problem of "dueling injunctions," which Judge Hanen also considered when he rejected the government's request for an injunction in the DACA litigation. While "dueling injunctions" could potentially be a problem, it is true, it is important this was not the issue with the stay order in the public charge case. The government was not being asked to affirmatively grant anybody's case even if they had a ground of inadmissibility related to public charge. The lower court instead was enjoining a policy that should not be put into effect while the litigation continued to determined whether on its face the new policy conflicted with the APA, the INA or was constitutionally defective. Instead of voicing concerns about dueling injunctions, it appears Justices Gorsuch and Thomas were concerned with the imposition of nationwide or universal injunctions which would be used (according to their view) to game the system, i.e. allow someone to forum shop and try to win their injunctive relief in any of the 94 districts or any of the 12 circuits. However, taken to its logical conclusion this argument this point by the concurrence is really a veiled attempt to allow unfettered governmental action immune from anyone ever pursuing injunctive relief. 

Whenever anyone seeks a TRO or injunction against a governmental agency they necessarily do not want the government to circumvent the ruling by doing the enjoined activity just in another location. It is not about what happens in this or that state or district office, but about whether the proposed governmental policy is so dangerous that it must be reigned in pending a final ruling on the merits. Justices Gorsuch and Thomas' concurrence in the public charge case unfortunately wholly ignored this essential point.

*Geoffrey A. Hoffman is a clinical professor and director, Immigration Clinic, at the Univ. of Houston Law Center; in my Personal Capacity and institution for identification only.

KJ

Myths About Immigrants Abound Worldwide

A study by two Harvard professors for the National Bureau of Economic Research finds that people in Western countries, including the United States, have succumbed to many restrictionist myths. The study, conducted by Political Economy Professor Alberto Alesina and Economics Professor Stefanie Stantcheva, administered online questionnaires to 24,000 respondents in six countries — the United States, United Kingdom, France, Germany, Italy, and Sweden — to study legal, not illegal, immigration. On literally every count — the levels of immigration, the composition and basic characteristics of immigrants — negative stereotypes abound.

Here is the abstract of the study:

"We design and conduct large-scale surveys and experiments in six countries to investigate how natives perceive immigrants and how these perceptions influence their preferences for redistribution. We find strikingly large misperceptions about the number and characteristics of immigrants: in all countries, respondents greatly overestimate the total number of immigrants, think immigrants are culturally and religiously more distant from them, and are economically weaker -- less educated, more unemployed, and more reliant on and favored by government transfers -- than is the case. Given the very negative baseline views that respondents have of immigrants, simply making them think about immigration before asking questions about redistribution, in a randomized manner, makes them support less redistribution, including actual donations to charities. Information about the true shares and origins of immigrants is ineffective, and mainly acts as a prime that makes people think about immigrants and reduces their support for redistribution. An anecdote about a "hard working'' immigrant is somewhat more effective, suggesting that when it comes to immigration, salience and narratives shape people's views more deeply than hard facts." 

One finding of the study is especially interesting in light of recent policy changes in the United States, such as the new public charge rule:

"where restrictionists have succeeded most spectacularly is in depicting immigrants as welfare queens. The Harvard researchers presented respondents with a scenario in which two individuals, one with a foreign-sounding name like Mohammad or Jose and another with a standard native name like Jack, are identical in every respect — age, qualifications, jobs, and families — each with three young children — except that Jack is a native and Mohammad or Jose is an immigrant who legally moved to America five years ago. The respondents were asked whether they believed Mohammad or the person with the immigrant-sounding name would pay more, the same, or less in taxes than Jack and whether he would receive more, the same, or less in government help. In America, over 25 percent of respondents said the person with the immigrant-sounding name would pay less in taxes than he collected in welfare compared to Jack — even though immigrants are barred from collecting most means tested federal benefits for five years. This reveals that about a quarter of the American public is outright biased against foreigners just because they are foreigners and not because they are illegal or poor or for any other objective reason." (emphasis added).

KJ

Immigration Article of the Day: Immigration and the U.S. Labor Market: A Look Ahead by Harry J. Holzer

Immigration and the U.S. Labor Market: A Look Ahead by Harry J. Holzer

Abstract

The U.S. labor market will be buffeted by major changes in the next few decades, such as an aging population, automation that displaces workers and requires skill adjustments, and increases in independent or informal work and "fissured" workplaces. These forces will likely raise worker productivity over time while also raising inequality, reducing labor force participation and creating worker shortages in high-demand industries. In this context, immigration will help reduce costs in key high-demand industries (like health care and elder care), raise labor force and economic growth, and contribute somewhat to the nation's fiscal balance. Highly-educated immigrants will notably contribute to economic productivity and dynamism; but less-educated immigrants may substitute for native-born non-college workers and thereby further contribute to earnings inequality. Reforms should therefore modestly increase overall immigration over time, while shifting its composition somewhat toward more-skilled and labor-market-driven migrants. These reforms should occur within the broader context of "comprehensive" reform that also raises enforcement efforts against illegal immigrant flows while establishing a path to citizenship for the currently undocumented. These changes should also be tied to a range of efforts to raise earnings among all non-college workers.

KJ

Controversy Surrounds Book "American Dirt" and Its Depiction of Mexico, Migrants, Etc.

 

A couple weeks ago, ImmigrationProf posted an announcement of the release of the book American Dirt by Jeanine Cummins. Cummins received a huge seven figure advance for the book, which is a fictional account of a book store owner and her young son who flee the drug cartels in Mexico after the massacre of her family. 

 

American Dirt was released with some rave reviews.  Oprah Winfrey announced that that the book was selected by her much-watched book club.  (Winfrey since has acknowledged the need to discuss the issues at the core of the controversy of the book.). 

 

After the high flying release buzz, American Dirt has generated considerable controversy.

 

 

NPR discusses the controversy over a white author writing a book about the Mexican migrant experience, which some say include negative stereotypes of Mexico and Mexicans that Donald Trump might endorse.  The book has been characterized as "trauma porn."   Critics have levelled claims of cultural appropriation against American Dirt and Cummins.  The publishing industry, which publishes relatively few Latinx authors, has been the subject of criticism.

 

Rachel Martin on  WBHM also writes about the controversy:

 

"There’s a book you might have heard of by now. It’s called American Dirt, and it’s the much-hyped new novel from author Jeanine Cummins that was released this week.

 

It’s the story of a Mexican woman named Lydia and her 8-year-old son Luca, who flee their home and undertake a harrowing journey to the U.S. border after gunmen from a local drug cartel kill most of their family. It’s been hailed as `a Grapes of Wrath for our times.' In fact, that quote is on the cover of the book.

 

And that is one of the many problems with American Dirt, according to several critics. There have been tweet threads and essays, all arguing that the book deploys harmful stereotypes. Even a hashtag — My Latino Novel — has popped up on Twitter, where people are writing their own parodies. But there is so much more to say about race and identity in publishing, about who gets to tell what stories and which of those voices are elevated in the mainstream culture.

 

Los Angeles Times writer Esmeralda Bermudez has been one of the most vocal critics of American Dirt. `In 17 years of journalism, in interviewing thousands of immigrants, I’ve never come across anyone like American Dirt’s main character,' Bermudez says."

 

Seattle Review of Books on #AmericanDirt: When a novelist identifies as white until she writes a book about Mexican migrants in order 2 give a face 2 the “faceless brown mass” @ the border, trouble follows, dirt is raised, caca is thrown. & for good reason https://t.co/luuMjS5XwI

— Esmeralda Bermudez (@LATBermudez) January 21, 2020

 

 

Critical reviews of American Dirt are growing in number.  Here is one by Ignacio Sanchez Pardo in the Washinton Post, which focuses on the depiction of Mexico:

 

"It is important for Americans to view Mexico fairly and accurately, as a country both wealthy and unequal, facing enormous social and political challenges, but also a complex society with a rich and diverse culture. Yet “American Dirt” is a reminder of the deep ignorance regarding Mexico and Mexicans in U.S. culture. As a scholar of Mexican culture, I witness how little Americans, even those with access to top educational opportunities, know about the country. It is often misrepresented as a violent and poor hell against which the United States is a promised land.

 

This stereotype forms the premise of `American Dirt.'”

 

Here is a particularly harsh -- perhaps over-the-top -- review of American Dirt.

 

The controversy continues.  A number of book events with the author have been cancelled.

 

I just completed the book.  The story it tells certainly is not what I understand to be the common story of migration from Mexico to the United States.  It read to me like a mystery/suspense/adventure novel, something akin to a James Patterson book (but with much longer chapters, descriptions, and introspection).  I am far from a literary critic but I found American Dirt to be engaging and interesting.  In terms of depicting the modern experience of migration through Mexico, most people in my opinion would learn more from Luis Urrea's The Devil's Highway or Sonia Nazario's Enrique's Journey.  In reading Cummins' book, I never got the sense that I was reading the work of someone who deeply understood Mexican culture, including the complex view of death among Mexicans, discrimination based on skin color in Mexican society, or the basics of a quinceanera (which is important to the opening plot).

 

KJ