Saturday, February 29, 2020
Among its many immigration measures, the Trump administration has taken steps to bring into line the the nation'ss corps of immigration judges. As Attorney General, Jeff Sessions took a number of steps in this direction. Immigration judges reportedly have been quiting or retiring.
Cristian Farias in the Atlantic discusses limitations imposed by the Trump aedministration on public speaking by immigration judges:
"For more than two years, immigration judges have been subject to a policy that more or less prevents them from performing an essential part of their civic duties: speaking publicly about their work.
Since September 2017, immigration judges and all other employees at the Justice Department’s Executive Office for Immigration Review have been required to adhere to an onerous pre-approval process whenever they desire or are invited to speak publicly on any issue, immigration-related or not."
Immigration professors have noted that it no longer is likely that they can get immigration judges to talk with immigration classes.
Yes, as Denea Joseph for Immigration Impact reminds us, there are undocumented black immigrants:
"I am one of approximately 619,000 undocumented, Black immigrants living in the United States. My immigration story began at seven years old, when I came to the United States from Belize without my mother, father, or siblings. The latter is a common narrative for DACA recipients like me. But the former challenges a popular misconception: that immigration is solely a Latinx issue.
I introduce myself in this way to tell you that Black immigrants do exist."
The Ninth Circuit opinion (Innovation Law Lab v. Wolf) was written by Judge William A. Fletcher, and joined by Richard A. Paez. Judge Ferdinand F. Fernandez dissented. Judge Fletcher's introductory paragraph succinctly summarizes the court's holding:
"Plaintiffs brought suit in district court seeking an injunction against the Government’s recently promulgated Migrant Protection Protocols (“MPP”), under which nonMexican asylum seekers who present themselves at our southern border are required to wait in Mexico while their asylum applications are adjudicated. The district court entered a preliminary injunction setting aside the MPP, and the Government appealed. We affirm."
Here is a NPR report on the ruling.
In another case (East Bay Sanctuary Covenant v. Trump) decided yesterday, the Ninth Circuit, in an opinion written by Richard A. Paez, joined by Judge William A. Fletcher, with a concurrence by Judge Ferdinand F. Fernandez,
"affirmed the district court’s grant of a temporary restraining order and a subsequent grant of a preliminary injunction enjoining enforcement of a rule and presidential proclamation that, together, strip asylum eligibility from every migrant who crosses into the United States along the southern border of Mexico between designated ports of entry. In November 2018, the Department of Justice and Department of Homeland Security adopted an interim final rule (`the Rule') that makes migrants who enter the United States in violation of a `a presidential proclamation or other presidential order suspending or limiting the entry of aliens along the southern border with Mexico' categorically ineligible for asylum. The same day, President Trump issued a presidential proclamation (`the Proclamation') that suspends the entry of all migrants along the southern border of the United States for ninety days, except for any migrant who enters at a port of entry and properly presents for inspection."
UPDATE (Feb. 29): The panel has issued a stay in the MPP case:
"The emergency request for an immediate stay of this court’s February 28, 2020 decision pending disposition of a petition for certiorari is granted pending further order of this court. Appellees are directed to file a response by the close of business on Monday, March 2, 2020. Any reply is due by the close of business on Tuesday, March 3, 2020."
UPDATE (March 3): Peter Margulies on Lawfare looks at the two Ninth Circuit rulings.
UPDATE (March 5): For procedural wrangling (stays of the panel's ruling, etc.) in the Innovation Law Lab appeal, click here.
Remember Sheriff Joe Arpaio? He once headed the Maricopa County Sheriff's Office and was found guilty of criminal contempt for repeated violations of a federal court order in a successful lawsuit challenging the MSCO's racially discriminatory practices in the name of immigration enforcement. President Trump pardoned Arpaio. And he was in the news this week.
"affirmed the district court’s judgment dismissing former Maricopa County Sheriff Joseph Arpaio’s criminal proceeding with prejudice, and denying vacatur of the district court’s verdict finding Arpaio guilty of criminal contempt, in a case in which Arpaio was granted a pardon by the President before the district court could sentence him."
Arpaio had argued the misdemeanor contempt of court conviction should be removed from his record. The Ninth Circuit rejected Arpaio’s request, saying the verdict no longer has any legal consequence because of the pardon.
Known for his aggressive immigration enforcement efforts, Arpaio lost a re-election bid in 2016 and has announced running for the office later this year.
Children of immigrants are an important part of our country’s future, and like all children, they need quality education, access to health care, and stable housing to thrive.
New research from experts at the Urban Institute shows that nationwide a quarter of all people ages 17 and younger had at least one immigrant parent, and the majority of these children of immigrants – 91 percent – are US citizens.
Check out the new research, available as state-level fact sheets, a map tool, and a short overview blog.
Thursday, February 27, 2020
When I teach students how to identify a particular social group, I talk a lot about sexuality. Matter of Toboso-Alfonso is my go to: Gay men in Cuba at the time shared a common immutable characteristic (being gay) that was defined with particularly (just gay men) and that group was socially distinct within Cuba (as evidenced by registries for and publicly-maintained files on gay men).
I have not, however, talked about how to prove that a given client is gay.
As this article from the BBC points out, that may not be as easy at it seems. Check out this compelling opening paragraph:
Angel fled Zimbabwe in fear of her life after police found her in bed with another woman five years ago. It's taken most of the time since then for her to convince the Home Office that she is gay and will be persecuted if she returns. But how do you prove something you spent your life trying to hide?
I strongly recommend reading the entire article. It delves into the types of questions Angel was asked during her seven-hour interview with an immigration official in the UK. It addresses the emotional toil of such testimony and the pressure to be convincing as well as truthful. Notably, the interviewer's notes are interspersed with the following comments:
**Applicant is crying**
**Applicant is still crying**
**Applicant still crying**
The article also includes some interesting statistics about LGBTQI asylum claims in the UK:
- >1,500 people seek asylum in the UK on sexuality grounds every year
- From 2015 to 2018 asylum denials for these claims jumped from 61% to 71%.
- During that same time frame, appellate courts overturns of these denials rose from 32% to 38%
CU Colloquium Features Research on Citizenship: Mapping Citizenship by Carolina Nunez and Rejecting Citizenship by Rose Cuison-Villazor
The University of Colorado Citizenship and Equality series features two research papers on citizenship in back-to-back presentations by BYU Law Professor Carolina Nunez and Rutgers Law Professor and Vice Dean Rose Cuison-Villazor.
On March 4, Professor Nunez presented her classic work Mapping Citizenship. The Article offers a typology of the ways in which formal citizenship can relate to substantive citizenship, using the metaphor of a highway to illustrate the different paths to citizenship available. To illustrate the value of the proposed framework, this Article examines territorial birthright citizenship and the creation of a "path to citizenship "for DREAMers. Professor Nunez's comments on how the framework would apply amid recent challenges to both policies and an array of new subjects, including the implementation of a public charge rule for green cards, visa restrictions for pregnant women seeking to enter the US, and the inclusion of children in enforcement efforts. CU Professor Scott Skinner-Thompson provided commentary.
On March 11, Professor Villazor will present an in-progress essay titled Rejecting Citizenship. The Essay examines the different reasons why some non-citizens have refused citizenship and explores their implication for our understanding of citizenship. As a descriptive matter, the non-citizens’ rejection of citizenship offers a counter-narrative to the traditional claim that citizenship is both ideal and should be attained. Their repudiation of citizenship also prompts reassessing the normative push for citizenship. Lastly, as a theoretical matter,
these non-citizens’ refusal to become U.S. citizens suggests the need to explore more flexible forms of membership and rethink the rights, privileges and obligations attendant to citizenship. Professor Justin Desautels-Stein will provide commentary.
The full list of speakers, including one final speaker March 18 (Rogers Smith) appears below.
A growing number of naturalized immigrants possess the potential to influence the 2020 elections: a recent study says 1 in 10 voters. This is a record high, according to Pew Research Center estimates based on Census Bureau data, and it results from fast-growth in the immigration population (up 93% since 2000) and slower growth in the native-born population.
The largest share of newly-naturalized voters is Hispanic or Asian. Among Hispanic voters, 53% are Democrats, while 39% are Republicans, according to surveys by the Pew Hispanic. A 2018 survey of all Asian voters by researchers at AAPI Data and APIA Vote found 58% were favorable toward the Democratic Party and 34% toward the Republican Party. Overall, the growth of these two groups reflects the increased number of immigrants living in the U.S. since 1965, when the Immigration and Nationality Act permitted more migration from countries previously excluded on the basis of national origin quotas. It also reflects a rising number of immigrants naturalized from 2009 to 2019, partly driven by the desire to influence elections and immigration policy. Indeed, the USCIS has been unable to keep pace with backlogged citizenship applications.
Given that more than half of newly-naturalized voters live in the four states with the most people (California, New York, Texas and Florida) and that 46% of them live in states with primaries or caucuses taking place on or before March 3, they will have a substantial impact on coming primary elections.
Newsweek: Democrats Must Hold Immigration Debate on How They Plan to Stop 'White Supremacists' Shaping Policy, Advocates Say
Chantal DaSilva for Newsweek reports that immigration advocates have expressed outrage at the fact that immigration was "once again, not debated" at the Democratic primary debate in Charleston, South Carolina, earlier this week. The Refugee and Immigrant Center for Education and Legal Services (RAICES) issued a press release to this effect after the debate. "[Deferred Action for Childhood Arrivals] recipients might lose their DACA this year, and white supremacists are shaping immigration policy. We need a real conversation about this critical issue," the organization said.
With immigration taking the backseat to a host of issues, including healthcare, RAICES has called on Democratic presidential candidates to participate in a debate focused on immigration.
In New York v. U.S. Department of Justice, the U.S. Court of Appeals for the Second Circuit departed from the Seventh Circuit and ruled for the Trump administration in its efforts to de-fund "sanctuary cities." The circuit split could ultimately lead to Supreme Court review.
"As the Supreme Court has repeatedly observed, in the realm of immigration policy, it is the federal government that maintains “broad,” Arizona v. United States, 567 U.S. 387, 394 (2012), and “preeminent,” power, Toll v. Moreno, 458 U.S. 1, 10 (1982), which is codified in an “extensive and complex” statutory scheme, Arizona v. United States, 567 U.S. at 395. Thus, at the same time that the Supreme Court has acknowledged States’ “understandable frustrations with the problems caused by illegal immigration,” it has made clear that a “State may not pursue policies that undermine federal law.” Id. at 416. As Chief Justice John Marshall wrote over 200 years ago, “the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government.” McCulloch v. Maryland, 17 U.S. 316, 436 (1819). This fundamental principle, a bedrock of our federalism, is no less applicable today. Indeed, it pertains with particular force when, as here, Congress acts pursuant to its power under the Spending Clause. See U.S. CONST. art. I, § 8."
Wednesday, February 26, 2020
Berkeley Law: 2020 Riesenfeld Symposium -- Borderline: Problems and Perspectives in Global Migration
The Berkeley Journal of International Law presents
February 28, 2020 (Friday), 1.00-7.00 pm, Booth Auditorium (Room 175)
Berkeley Law, University of California
The Riesenfeld Symposium is free and open to the public
Miller Institute for Global Challenges and the Law
American Society of International Law
White & Case LLP
One of the great traditions at Berkeley Law is the annual Riesenfeld Symposium, which allows students, alumni, faculty, and staff to come together to recognize and celebrate achievement in international law. Each year, BJIL presents the keynote speaker with the Stefan A. Riesenfeld Memorial Award, traditionally given to a distinguished scholar or practitioner who has made outstanding contributions to the field of international law. The purpose of the award is to honor the memory of Professor Stefan A. Riesenfeld ’37, who devoted much of his life and career to the study and practice of international law, and to recognize a recipient who has demonstrated a commitment to the values and ideas that Professor Riesenfeld espoused and advocated.
The 2020 Riesenfeld Award will be given to keynote speaker Guy Goodwin-Gill, Emeritus Fellow, All Souls College, Emeritus Professor of International Refugee Law, Oxford University, and now Professor of Law at UNSW’s Kaldor Centre for International Refugee Law. Widely recognized as the preeminent legal scholar in the field, he formerly practiced as a barrister from Blackstone Chambers in London. His distinguished career has encompassed various roles with UNHCR, advocacy before the courts in a number of prominent cases, and academic posts in Canada and throughout Europe. Since joining the Kaldor Centre in 2017, he has served as Acting Director, published widely and regularly comments in the media.
Mr. Goodwin-Gill’s keynote will be followed by a panel, fireside chat, and reception with leading practitioners in the immigration and refugee realm. Other confirmed speakers include:
- Bree Bernwanger, Immigrant Justice Staff Attorney, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area
Richard Buxbaum, Jackson H. Ralston Professor of International Law (Emeritus), Berkeley Law
- Dan Farber, Faculty Director of the Center for Law, Energy, and the Environment, Berkeley Law
- Andrea Gurrero, Director, Alliance San Diego
- Kate Jastram, Director of Policy & Advocacy, Center for Gender and Refugee Studies, UC Hastings
- Katerina Linos, Professor, Berkeley Law, Co-Directer, Miller Center for Global Challenges and the Law
- Jane McAdam, Scientia Professor of Law and Director of the Kaldor Centre for International Refugee Law, University of New South Wales
Students in my Crimmigration course are typically on their third read of Padilla v. Kentucky, 559 U.S. 356 (2010). It's a case they explored in Criminal Procedure. If they've already taken Immigration Law, they read it for that class. And now, they're seeing this old friend for a third time.
One way to make the case new again is to introduce them to Padilla himself. As it turns out, Padilla spoke at the University of Denver in 2016 and his remarks are available online. From 5:52 to 24:18, Padilla speaks about the facts of his arrest, his unsuccessful sting work with the feds to flesh out the buyers of all that pot, his state criminal trial, and his plea.
Playing this segment really humanizes Padilla and forces students to see the case in an entirely new light. Not every class will have the 20 minutes free to introduce students to the man behind the case, but for those who have the time, it is well worth it.
Immigration Article of the Day: Reverse Migration to Mexico Led to US Undocumented Population Decline: 2010 to 2018 by Robert Warren
Reverse Migration to Mexico Led to US Undocumented Population Decline: 2010 to 2018 by Robert Warren, Journal on Migration and Human Security(2020)
This report presents estimates of the undocumented population residing in the United States in 2018, highlighting demographic changes since 2010. The Center for Migration Studies of New York (CMS) compiled these estimates based primarily on information collected in the US Census Bureau’s American Community Survey (ACS). The annual CMS estimates of undocumented residents for 2010 to 2018 include all the detailed characteristics collected in the ACS. A summary of the CMS estimation procedures, as well as a discussion of the plausibility of the estimates, is provided in the Appendix.
The total undocumented population in the United States continued to decline in 2018, primarily because large numbers of undocumented residents returned to Mexico. From 2010 to 2018, a total of 2.6 million Mexican nationals left the US undocumented population; about 1.1 million, or 45 percent of them, returned to Mexico voluntarily. The decline in the US undocumented population from Mexico since 2010 contributed to declines in the undocumented population in many states. Major findings include the following:
The total US undocumented population was 10.6 million in 2018, a decline of about 80,000 from 2017, and a drop of 1.2 million, or 10 percent, since 2010.
Since 2010, about two-thirds of new arrivals have overstayed temporary visas and one-third entered illegally across the border.
The undocumented population from Mexico fell from 6.6 million in 2010 to 5.1 million in 2018, a decline of 1.5 million, or 23 percent.
Total arrivals in the US undocumented population from El Salvador, Guatemala, and Honduras — despite high numbers of Border Patrol apprehensions of these populations in recent years — remained at about the same level in 2018 as in the previous four years.
The total undocumented population in California was 2.3 million in 2018, a decline of about 600,000 compared to 2.9 million in 2010. The number from Mexico residing in the state dropped by 605,000 from 2010 to 2018.
The undocumented population in New York State fell by 230,000, or 25 percent, from 2010 to 2018. Declines were largest for Jamaica (−51 percent), Trinidad and Tobago (−50 percent), Ecuador (−44 percent), and Mexico (−34 percent).
The results shown here reinforce the view that improving social and economic conditions in sending countries would not only reduce pressure at the border but also likely cause a large decline in the undocumented population.
Two countries had especially large population changes — in different directions — in the 2010 to 2018 period. The population from Poland dropped steadily, from 93,000 to 39,000, while the population from Venezuela increased from 65,000 to 172,000. Almost all the increase from Venezuela occurred after 2014.
Professor Amanda Frost has written on the Trump administration's denaturalization campaign. To that end, the Department of Justice has created a section dedicated to denaturalization cases.
The Department of Justice today announced the creation of a section dedicated to investigating and litigating revocation of naturalization. The Denaturalization Section will join the existing sections within the Civil Division’s Office of Immigration Litigation—the District Court Section and the Appellate Section. This move underscores the Department’s commitment to bring justice to terrorists, war criminals, sex offenders, and other fraudsters who illegally obtained naturalization.
Ryan Grim on the Intercept looks at some of Amy Klobuchar's record on the cases of immigrants and people of color as a district attorney. Klobuchar — now a Minnesota senator and presidential candidate — served for eight years as Hennepin County attorney, first elected in 1998.
When pressed by @Sunny on @TheView about how her tough on crime approach disproportionally impacted people of color, Sen. Amy Klobuchar says she “worked really hard” to address systematic racism, but “there is so much more work that we have to do.” https://t.co/tmkyrg8m25 pic.twitter.com/FJa2yoJZBw— ABC News Politics (@ABCPolitics) February 11, 2020
Mark Joseph Stern for Slate recaps the oral arguments in the Supreme Court yesterday in United States v. Sineneng-Smith. Here is the transcript. The question presented in the case is whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional.
Stern's conclusion in a nutshell based on the arguments:
"United States v. Sineneng-Smith, which involves a federal law that bars people from encouraging noncitizens to enter or stay in the U.S. illegally. Remarkably, a majority of the justices seemed prepared to invalidate the statute, or at least dramatically narrow its scope. As hostile as this court is to immigrants, it may draw the line at a law that literally criminalizes immigration advocacy."
Stern recounts that:
"Chief Justice John Roberts’ first question of the day did not bode well for the government: He asked Deputy Solicitor General Eric Feigin to concede `that there are situations in which this would be unconstitutional as applied.'
`Let’s suppose a grandmother whose granddaughter is in the United States illegally tells the granddaughter, ‘I hope you will stay, I will miss you, things will not get better if you go back, so I encourage you to stay,’ ” Roberts said. The First Amendment plainly protects that speech. Yet it “would be illegal under the statute, right?”
Read the story above for more details.
"A majority of the justices seemed to be concerned that the statute as written is quite broad. This would imply sympathy for the analysis of the 9th Circuit. But a number of justices may also be reluctant to strike down the statute entirely if there is a reasonably available alternative interpretation. What is not clear is whether a majority of the justices think that the task they face is one of permissible narrow construction or impermissible rewriting."
Tuesday, February 25, 2020
The Supreme Court has a full docket of immigration cases this Term. Kari Hong on SCOTUSBlog offers a preview of the oral argument before the Supreme Court in Department of Homeland Security v. Thuraissigiam. Arguments will be on March 2. The case raises important questions about whether asylum-seekers may challenge mistakes made during the expedited removal process. As Hong lays the issues out,
"The government argues that if expedited removal is slowed down—by requiring any review process beyond what is currently provided—removals will decrease while precious resources will be spent on detention, full hearings and federal court actions.
Immigration advocates fear that if the court finds the existing procedures adequate, this case could produce a “papers please” world, in which immigration enforcement officers can stop any of us, and make an on-the-spot decision to detain, deport or leave us alone.
The actual outcome will most likely fall in between these two extremes. But however Thuraissigiam’s specific grievance is resolved, many more asylum-seekers, many more immigrants, and even some citizens who may be swept up by mistake will be affected by the aftermath."
Conference: NYU School of Law -- Immigration, Equal Protection, and the Promise of Racial Justice The Legacy of Jean v. Nelson
and the Promise of
Racial Justice: The Legacy of Jean v. Nelson, April 3, 2020, NYU School of Law
The year 2020 marks the 35th Anniversary of Justice Thurgood Marshall's groundbreaking dissent in Jean v. Nelson, wherein Justice Marshall called for equal protection to apply to Haitian immigrants, and to prohibit the government from discriminating on the basis of race or national origin.
The NAACP Legal Defense and Educational Fund, Inc., the Center on Race, Inequality, and the Law, and the Center for Human Rights and Global Justice at NYU School of Law are pleased to present a legal conference exploring the intersection of immigration and racial justice.
I am pleased to participate in a lunch conversation with Sherrilyn Ifill, President and Director-Counsel, NAACP Legal Defense and Educational Fund, Inc.
Click here for the full program.
A report released Monday by the National Foundation for American Policy projects that Trump policies like the expanded travel ban, the public charge rule preventing immigrants who receive public benefits from entering the country, and the health insurance mandate will lower immigration. Refugee admissions have also fallen. In sum, legal immigration has already declined by 11 percent between the 2016 and 2018 fiscal years. The NFAP report predicts the decline will reach 30 percent by 2021.
Immigration restriction in all categories, including legal immigration, is a goal of the more hardline Trump immigration policymakers like Stephen Miller and Ken Cucinnelli. However, some government officials want to maintain legal migration while curtailing undocumented and other categories of migration. (See recent statement of acting chief of staff, Mick Mulvaney or Jared Kushner's proposals for comprehensive immigration reform.)
The significant decline in legal immigration means lower long-term economic growth as well (40% less migration means 47% less economic growth, 50% less migration means 59% less growth). A February 2020 report from the U.S. Census Bureau concluded, “Higher international immigration over the next four decades would produce a faster growing, more diverse, and younger population for the United States.”