Tuesday, February 25, 2020
The issue in the case was whether, when the plaintiffs plausibly allege that a rogue federal law-enforcement officer violated clearly established Fourth and Fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.
In a 5-4 decision, the Court ruled that Bivens does not extend to claims based on a cross-border shooting. Justice Alito was joined by Chief Justice Roberts and Justices Thomas, Gorsuch, and Kavanaugh. "As we have made clear in many prior cases," Alito writes, "the Constitution's separation of powers requires us to exercise caution before" creating a damages remedy in a "new context, and a claim based on a cross-border shooting arises in a context that is markedly new."
"The U.S. Department of Homeland Security today implemented the Inadmissibility on Public Charge Grounds final rule. Under the final rule, DHS will look at the factors required under the law by Congress, like an alien’s age, health, family status, assets, resources, and financial status, education and skills, among others, in order to determine whether the alien is likely at any time to become a public charge. The rule now applies nationwide, including in Illinois.
Self-sufficiency is a long-standing principle of immigration law. Since the 1800s, inadmissibility based on public charge has been a part of immigration law. Since 1996, federal laws have stated that aliens seeking to come to or remain in the United States, temporarily or permanently, must be self-sufficient and rely on their own capabilities and the resources of family, friends, and private organizations instead of public benefits.
“President Trump continues to deliver on his promise to the American people to enforce our nation’s immigration laws. After several judicial victories, DHS will finally begin implementing the Inadmissibility on Public Charge Grounds final rule,” said Ken Cuccinelli, the acting deputy secretary of the Department of Homeland Security. “This rule enforces longstanding law requiring aliens to be self-sufficient, reaffirming the American ideals of hard work, perseverance and determination. It also offers clarity and expectations to aliens considering a life in the United States and will help protect our public benefit programs.”
The final rule defines “public charge” as an alien who has received one or more public benefits (as defined in the rule) for more than 12 months, in total, within any 36-month period.
The final rule defines “public benefits” to include any cash benefits for income maintenance, Supplemental Security Income, Temporary Assistance to Needy Families, Supplemental Nutrition Assistance Program, most forms of Medicaid and certain housing programs.
Applicants for adjustment of status who are subject to the final rule must show that they are not likely at any time to become a public charge by submitting a Form I-944, Declaration of Self-Sufficiency, when they file their Form I-485, Application to Register Permanent Residence or Adjust Status.
To determine whether an alien is inadmissible on the public charge grounds, U.S. Citizenship and Immigration Services will not consider, and applicants and petitioners do not need to report, the application for, certification or approval to receive, or receipt of certain previously excluded non-cash public benefits (such as SNAP, most forms of Medicaid, and public housing) before Feb. 24, 2020. Similarly, USCIS will not consider as a heavily weighted negative factor receipt of previously included public benefits (such as SSI and TANF) before Feb. 24, 2020, in a public charge inadmissibility determination.
The final rule requires most aliens seeking to extend their nonimmigrant stay or change their nonimmigrant status to show that, since obtaining the nonimmigrant status they seek to extend or change, they have not received public benefits (as defined in the final rule) for more than 12 months, in total, within any 36-month period beginning Oct. 15, 2019. Due to litigation-related delays in the final rule’s implementation, DHS is applying this requirement as though it refers to Feb. 24, 2020 rather than Oct. 15, 2019. Therefore, with respect to applying the public benefits condition to applications and petitions for extension of nonimmigrant stay and change of nonimmigrant status, DHS will not consider, and applicants and petitioners need not report an alien’s receipt of any public benefits before Feb. 24, 2020.
Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the final rule.
After today, USCIS will reject prior editions of affected forms, including in Illinois where the rule remained enjoined until Feb. 21, 2020, when the U.S. Supreme Court granted a stay of the statewide injunction. If USCIS receives an application or petition for immigration benefits using prior editions of the forms postmarked on or after Feb. 24, 2020, then USCIS will inform the applicant or petitioner of the need to submit a new application or petition using the correct forms. For applications and petitions that are sent by commercial courier (such as UPS, FedEx and DHL), the postmark date is the date reflected on the courier receipt.
The final legal impediment to full nationwide implementation of the public charge rule was lifted by a 5-4 Supreme Court last week. President Trump seemingly responds to Justice Sotomayor's dissent in this tweet:
“Sotomayor accuses GOP appointed Justices of being biased in favor of Trump.” @IngrahamAngle @FoxNews This is a terrible thing to say. Trying to “shame” some into voting her way? She never criticized Justice Ginsberg when she called me a “faker”. Both should recuse themselves..— Donald J. Trump (@realDonaldTrump) February 25, 2020
The Trump administration implemented the new public charge rule yesterday and seeks to reduce legal immigration. It appears that the administration's efforts to curb legal immigration are working, The New York Times reports.
A report released yesterday by the National Foundation for American Policy projects that policies like the recently-expanded travel ban and the public charge rule will alter legal immigration to the United States. Legal immigration had already declined by 11 percent between the 2016 and 2018 fiscal years, and the NFAP report predicts the decline will reach 30 percent by 2021.
Here is the executive summary of the NFAP report:
"Trump administration policies are projected to reduce the annual level of legal immigration to the United States by 30%, resulting in 350,000 fewer legal immigrants receiving permanent residence each year compared to the FY 2016 level of 1,183,505, according to a National Foundation for American Policy (NFAP) analysis. NFAP projects in the long term that the average annual U.S. labor force growth, a key component of economic growth, will be between 35% and 59% lower in America as a result of Trump administration immigration policies, if the policies remain in place. The significant decline in the annual level of legal immigration means lower long-term economic growth may be Donald Trump’s most lasting economic legacy.
The reduction in legal immigration will take place without any change in the law by Congress but as a result of policies that include the public charge rule, the travel ban and lower admission of refugees. Depending on implementation, the decline in legal immigration may be greater than 30%. Immigrant visas issued by U.S. consular officers already have declined by 25% between FY 2016 and FY 2019, and that is before the public charge rule went into effect. Fewer people will have the opportunity to live and work in the United States. Many American citizens will not be allowed to live in the United States with their spouse, child or parent, despite U.S. immigration law as interpreted for decades."
Supreme Court argument preview: Do federal courts have jurisdiction to review a challenge to an administrative denial of relief under the Convention Against Torture?
"The Supreme Court is now being asked to decide whether Section 1252(a)(2)(C), which bars judicial review of factual determinations in final orders of removal on criminal grounds, also bars judicial review of Nasrallah’s challenge to the denial of his application for deferral of removal under the CAT, notwithstanding the jurisdictional grant in Section 1252(a)(4).
The circuit courts are currently split on this issue."
Professor Chacon's assessment:
"As it hears arguments in Nasrallah, the Supreme Court will likely focus on the text and structure of the statute to determine how best to reconcile Congress’ clear desire for judicial review in CAT cases with its competing, expressed desire to limit judicial review in certain cases involving noncitizens who have been convicted of crimes."
Monday, February 24, 2020
White House chief of staff Mick Mulvaney caught on tape saying US is “desperate” for more immigrants
Here is a story making the rounds. It suggests that, when it comes to immigration, not everyone in the Trump administration is on the same page.
We are well-aware of the immigration enforcement emphasis of senior White House advisor Stephen Miller. In contrast, White House Acting Chief of Staff Mick Mulvaney admitted that the United States is "desperate" for more immigrants, according to a recording obtained by the Washington Post. He further stated that immigration is necessary for sustained economic growth.
"We are desperate — desperate — for more people," Mulvaney said, stressing that it should be legal. "We are running out of people to fuel the economic growth that we've had in our nation over the last four years. We need more immigrants."
These claims are counter to dominant narratives in the Trump administration. The president himself has repeatedly talked about immigration as a substantial burden on the country, rather than a benefit, and his administration has acted to reduce the number of immigrants coming in.
NPR ran a story that I found incredibly interesting. The University of Pennsylvania Museum of Archaeology and Anthropology — known as The Penn Museum — has hired refugees and immigrants from the Middle East, Africa and Central America as part of their "Global Guides" program. In the picture above, Moumena Saradar, who is originally from Syria, stands next to the wedding jewelry and headdress of Queen Puabi, her favorite part of the Middle East gallery.
Here is the story of how the Global Guides program came:
"When Ellen Owens, director of learning and public engagement at the Penn Museum, looked at her pool of docents, she saw a wonderful — and aging — group of largely white people. Docents explain exhibits to visitors and show them around the galleries. Owens thought that having docents from a range of ages and backgrounds might be a good way to connect with more diverse communities who might not otherwise be drawn to the Penn Museum. With her colleague Kevin Schott, Owens hit upon an idea. Their institution is world-renowned for its priceless artifacts from the Middle East, Africa and Central America. So, why not hire refugees and immigrants from those parts of the world to work as docents?"
The Global Guides were recruited with the help of Philadelphia non-profit organizations aiding immigrants and refugees. The guides received traditional training in archaeology and ancient history. Plus, the museum hired professional storytellers to help the Global Guides lace in personal tales about their lives.
The 2020 Rothgerber Conference Women's Enfranchisement: Beyond the 19th Amendment will take place on Friday, April 3, 2020 at the University of Colorado Boulder. It will include a panel on political barriers to enfranchisement, including barriers reltaed to race, gender, class, and citizenship. Professor Justin Levitt (Loyola LA and formerly DOJ) will share lessons learned during his public service at the DOJ during the Department of Commerce v. New York census litigation. Conference registration is free and open to the public now.
News from the University of Virginia (and here). German political scientist Hajo Funke, the Max Kade Distinguished Visiting Professor, is unable to enter the United States to teach at the University of Virginia. The State Department has yet to issue him a visa.
Funke currently is co-teaching two classes on far-right populism from Berlin via videoconference. Funke’s research focuses on political culture in modern Germany and far-right extremism. He is an active public intellectual, and was awarded the German Federal Cross of Merit for his work.
After receiving an official invitation from the University of Virginia in November, Funke submitted all paperwork in the U.S. Consulate in Berlin. He submitan application for a J-1 Visa, a non-immigrant visa that permits travel for scholars or professors. Funke received further questions from the Consulate that same day, but before he could submit his answers, his passport was returned with a letter stating that his visa would require “further administrative processing” that would take an additional three to six months.
To date, Funke has not received any further information or explanation from either the State Department or the Consulate.
From the Bookshelves: The Readmission of Asylum Seekers under International Law by Mariagiulia Giuffré
The Readmission of Asylum Seekers under International Law by Mariagiulia Giuffré, Hart Publishing, February 2020).
This monograph could not be more timely, as discourses relating to refugees' access to territory, rescue at sea, push-back, and push-back by proxy dominate political debate. Looking at the questions which lie at the junction of migration control and refugee law standards, it explores the extent to which readmission can hamper refugees' access to protection. Though it draws mainly on European law, notably the European Convention on Human Rights, it also examines other international frameworks, including those employed by the United Nations and instruments such as the Refugee Convention. Therefore, this book is of importance to readers of international law, refugee law, human rights and migration studies at the global level. It offers an analysis of both the legal and policy questions at play, and engages fully with widely-disputed cases concerning readmission agreements, deportation with assurances and interception at sea. By so doing, this book seeks to clarify a complex field which has at times suffered from partiality in both its terminology and substance.
Sunday, February 23, 2020
The Department of Homeland Security's US Citizenship and Immigration Service is blocking city governments from holding naturalization ceremonies in Denver. While Denverites can still take their oath of citizenship privately in the federal office, the public ceremonies that recognize the milestone as part of a ommunity or family celebration are being discontinued by the USCIS as a tit for tat since the Denver city council limited city government information sharing with federal immigration authorities in Jun 2019. As a USCIS spokeswoman explains,
“The mission of USCIS is to both celebrate American citizenship through naturalization ceremonies as well as protect the homeland by ensuring the integrity of our immigration system. Unfortunately, the City and County of Denver chooses not to work with USCIS on investigations of potential fraud, which negatively impacts USCIS’ ability to fairly and accurately adjudicate cases involving national security concerns and fraud,” said Jessica Collins, USCIS spokesperson. “Given the situation, USCIS will not be able to collaborate with the City and County of Denver to hold naturalization ceremonies until the City and County of Denver cooperates on the overall USCIS’ mission.”
It is unclear how widespread the cancellations are, as the Denver city council had not itself reported the cancellation, though the federal government has had a pattern of seeking to punish sanctuary cities. There have been prior instances of USCIS cancelling ceremonies in the Georgia Capitol over disagreement about immigrant advocacy they deemed to detract from the agency's mission.
Jonathan Blitzer for the New Yorker ("How Stephen Miller manipulates Donald Trump to Further His Immigration Obsession") has a revealing piece about senior White House aide (and newlywed) Stephen Miller. Blog readers will find tons of interest here. One paragraph:
"Miller, who is thirty-four, with thinning hair and a sharp, narrow face, is an anomaly in Washington: an adviser with total authority over a single issue that has come to define an entire Administration. `We have never had a President who ran, and won, on immigration,' Muzaffar Chishti, of the Migration Policy Institute, told me. `And he’s kept his promise on immigration.' Miller, who was a speechwriter during the campaign, is now Trump’s longest-serving senior aide. He is also an Internet meme, a public scourge, and a catch-all symbol of the racism and malice of the current government. In a cast of exceptionally polarizing officials, he has embraced the role of archvillain. Miller can be found shouting over interviewers on the weekend news shows or berating reporters in the White House briefing room; he has also vowed to quell a `deep state' conspiracy against Trump. When he’s not accusing journalists of harboring a `cosmopolitan bias' or denying that the Statue of Liberty symbolizes America’s identity as a nation of immigrants, he is shaping policy and provoking the President’s most combative impulses."
Professor Daniel Morales organized a Immigration Theory Workshop held last week at the University of Houston Law Law Center. The title of the workshop was "Imaging Migration After Populism." Daniel arranged for a wonderful group of scholars from a variety of disciplines to discuss:
US Migration Law 1980-2019: Imaging Alternative Histories (Allison Tirres, Chair, Kevin Johnson, Carly Goodman, Rachel Rosenbloom)
Where are We Now? Unpacking Migration's Present (Geoffrey Hoffman, Chair, Jason Cade, Ingrid Eagly, Margaret Hsu)
Establishing the Ideal: New Horizons for Migration Law (Daniel Morales, Chair, Joseph Nevins, Niklas Plaetzer, Alex Sager, Jckie Stevens)
Imagining Transformative Reform in the Near Term (Shruti Rana, chair, Daniel Morales, Hiroshi Motomura, John Skretny)
We also had a special lunch time appearance by rock star Dean Len Baynes!
I found the event to be a refreshing exchange of ideas. The discussion was constructive, which is much needed in these turbulent immigration times. Kudos Daniel!
Check out the International Organization for Migration World Migration Report 2020. In late 2019, IOM’s Director General released the tenth edition of the World Migration Report 2020. Designed to provide the latest data and information on key migration trends around the world, the report includes analysis of global migration statistics, describes recent developments in global governance of migration as well as outlines regional dimensions of migration and displacement. Drawing upon IOM’s expertise in migration operations and management, as well as the depth of knowledge of the world’s leading migration academics, the report provides a wealth of material relevant to strategic policy, program and operational deliberations.
Report: Change is Hard: Managing Fear and Anxiety about Demographic Change and Immigration in Polarized Times
In this reporrt, Suzette Brooks Masters set out to understand how anxieties about demographic change, immigration and American identity can power the rise of authoritarian populists and ethnonationalists. After extensive review of the vast and growing multidisciplinary literature on these topics, and numerous discussions with experts and colleagues, Ms. Masters wrote this compact yet provocative research brief. Here it is: Change is Hard: Managing Fear and Anxiety about Demographic Change and Immigration in Polarized Times by Suzette Brooks Masters
A summary of the findings:
• Immigration is a cultural and identity issue, not primarily one of policy. It needs to be addressed as such. Only discussing policy ideas governing who can enter and stay in the U.S. and under what terms doesn’t speak to the complexity of the issue, nor address the cultural and other concerns of Americans living in communities in demographic flux.
• Demographic change can trigger societal stress when not well managed. Growing racial and ethnic diversity in the U.S. resulting from decades of immigration in all parts of the country has been met with increased cultural anxiety, especially among whites.2 Relatedly, white alienation and a sense of grievance are on the rise, with many whites believing they are the subjects of racial discrimination and fearful of their loss of status as America closes in on becoming a majority-minority country. This drives them to identify as and behave like a racial minority. Trump’s ethnonationalist and anti-immigrant platform appealed to these voters and now threatens many social and civil rights that are the cornerstones of our democracy.3
• White nationalism is resurgent. Many elected leaders have benefited from and fueled the rise of white nationalism in America. The rhetoric such elected leaders use legitimizes the expression of anti-immigrant, anti-Muslim and anti-Semitic sentiment in America, making more visible prejudices that would have been kept hidden or private in the past and shattering long-held social conventions. When such views are amplified at the highest levels of power, this leads to a marked increase in hate-driven violence and extremism.
• Growing polarization and partisan realignment threaten progress on immigration. The immigration debate is deeply divisive and dominated by the extremes on both sides. They feed off one another, becoming increasingly strident and eliminating space for nuance, complexity and realistic solutions. Yet the majority of public opinion (about two-thirds) is at neither extreme.
Saturday, February 22, 2020
In 2015, the film McFarland, USA with Kevin Costner brought the spotlight small California farm town, McFarndand. The film told the heartwarming story of a coach who molded a group of farmworker youth into a cross country chapmpionship team.
McFarland is again in news that even made the New York Times. Facing outcry from the local farmworker community, McFarland city planners earlier this week failed to approve a private prison company's bid to convert two prison facilities in the city into federal immigration detention centers. The next morning, McFarland Mayor Manuel Cantu Jr. announced his resignation, explaining that his vision for the city's growth was at odds with the community's desire to rebuff the GEO Group.
After four hours of public comment in both English and Spanish, the Planning Commission voted 2-2 on the GEO Group’s proposal to turn its two 700-bed facilities — Central Valley and Golden State modified community correctional facilities — into annexes for its 400-bed immigration detention facility in Bakersfield, the Mesa Verde ICE Processing Center. With a deadlocked vote, the motion failed.
The commission's vote stands unless the issue is appealed to the City Council within 15 days.
From the Bookshelves: Judicial Review of Immigration Detention in the UK, US and EU: From Principles to Practice by Justine N Stefanelli
Judicial Review of Immigration Detention in the UK, US and EU From: Principles to Practice by Justine N Stefanelli (Hart Publishing, January 2020)
Immigration detention is considered by many states to be a necessary tool in the execution of immigration policy. Despite the apparently key role it plays in immigration enforcement, the law on immigration detention is often vague, especially in relation to determining the circumstances under which prolonged detention remains lawful. As a result, the courts are frequently called upon to adjudicate these matters, with scant legal tools at their disposal. Though there have been some significant judgments on the legality of detention at the constitutional level, the extent to which these judgments have had an impact at the lower end of the judiciary is unclear. Indeed, it is the lower courts which are tasked with judging the legality of detention through habeas corpus or judicial review proceedings.
This book examines the way this has occurred in the lower courts of two jurisdictions, the UK and the US, and contrasts this practice not only in those jurisdictions, but with judgments rendered by the Court of Justice of the European Union, a constitutional court at the other end of the judicial spectrum whose judgments are applied by courts and tribunals in the EU Member States. Although these three jurisdictions use similar tests to evaluate the legality of detention, case outcomes significantly differ. Many factors contribute to this divergence, but key among them is the role that fundamental rights protection plays in each jurisdiction. Through a forensic evaluation of 191 judgments, this book compares the laws on detention in the UK, US and EU, and makes recommendations to these jurisdictions for improvement.
Robert Mackey for the Intercept reports on a troubling new episode of Big Brother and international travel. Eyal Weizman, an Israeli-born British architect who uses visual analysis to investigate war crimes and other forms of state violence, was barred from traveling to the United States this week for an exhibition of his work after being identified as a security risk by an algorithm used by the Department of Homeland Security.
Weizman, a professor at Goldsmiths, University of London, frequently travels to the U.S. to lecture and exhibit work. Last year, his group Forensic Architecture was selected to take part in the Whitney Biennial and produced an investigations — of how a Whitney board member profited from the manufacture of tear gas used against civilians in a dozen countries, including at the U.S.-Mexico border.
last week, as he prepared to travel to Miami for the opening of a major survey exhibition of Forensic Architecture’s work, “True to Scale,” at the Museum of Art and Design at Miami Dade College, Weizman was informed by email that he had been removed from a visa-waiver scheme and would not be permitted to board his flight.