Tuesday, June 30, 2020

Canada to US: Thanks for the Immigrants


Yung Wu, CEO of Toronto-based MaRS Discovery District, has a wonderful new commentary piece in Fortune magazine. Check out this opening paragraph:

Strictly speaking, America, we Canadians should be quietly thanking you for your self-destructive immigration policies. They benefit Canada immensely. But friends tell you when you make a mistake. And you’re making a giant one by hardening your borders and your hearts to talented newcomers.

Just what's the big deal according to Wu? "You’re shutting out the creators of your economic future."

As for Canada, it's ready to swoop in and make room for those left out of the United States. Canada has a Global Talent Stream program designed to facilitate entrepreneurial migration. And Canadian companies are falling over themselves to recruit workers spurned by the U.S. As one CEO put it: "Canada is awesome. Give it a try."

After all, if the U.S. "won't value talented immigrants, Canada will."


June 30, 2020 in Current Affairs | Permalink | Comments (1)

Chief Justice as the New Swing Vote

As the Supreme Court's 2019 Term nears an end, Chief Justice John Roberts is gaining considerable attention for joining the liberals in some of the highest profile cases of the year.  The Chief, of course,  wrote the majority opinion in the DACA case, probably the biggest immigration case of the Term.  He also joined the majority in striking down the Louisiana abortion statute, and the majority in decision holding that Title VII barred discrimination against LBGT persons.


June 30, 2020 in Current Affairs | Permalink | Comments (0)

Latinx in La Migra: Why They Join and Why It Matters


Clams long have been made that U.S. immigration enforcement discriminates against Mexicans, Central Americans, and others from Latin America.  At the same time, many Latina/os are employed in U.S. immigration enforcement. 

A new study in the journal Political Research Quarterly by David Cortez reports that Latinos are disproportionately represented in law enforcement agencies like ICE and Border Patrol.  For example, Latinos make up about eight percent of the federal workforce and about 18 percent of the population. Latinos make up 30 percent of ICE agents and nearly 50 percent of Border Patrol agents.

The socioeconomic status of a region heavily influences the decision to join law enforcement for a person of color. In regions like El Paso, Texas where the percentage of those with college degrees almost matches the rate of poverty — both about 20 percent — economic opportunities are scarce and survival is important.

David Cortez’s research found motivating factors for the Latino agents included economic self-interest and the pride that comes from having a “good job,” along with the security of benefits.

For more on the study, click here.


June 30, 2020 in Current Affairs | Permalink | Comments (0)

Migration Policy Institute: As #DefundThePolice Movement Gains Steam, Immigration Enforcement Spending and Practices Attract Scrutiny

June 30, 2020 in Current Affairs | Permalink | Comments (0)

Monday, June 29, 2020

Call For Papers--AALS 2021, New Voices in Immigration Law

“New Voices in Immigration Law”
Association of American Law Schools · Section on Immigration Law
January 5-9, 2021 · San Francisco, CA

Submission Deadline: August 15, 2020

The Section on Immigration Law of the Association of American Law Schools invites papers and works in progress for its “New Voices in Immigration Law” session at the 2020 AALS Annual Meeting in Washington, DC, which will take place January 5-9, 2021. This session has not yet been scheduled. We will send updated information when he have it.

This session will be structured as a series of simultaneous works-in-progress discussions, rather than as a panel. Preselected commentators will lead small-group round-table discussions of papers.

Submissions may address any aspect of immigration and citizenship law. We also welcome papers that explore these topics from alternative disciplines or perspectives.

Please note that individuals presenting at the program are responsible for their own Annual Meeting registration fee and travel expenses.

Submission Guidelines: The deadline for submissions is August 15, 2020. Feel free to submit an abstract, a précis, or a work-in-progress. Priority will be given to individuals who have never presented an immigration law paper at the AALS Annual Meeting, works not yet published or submitted for publication, and junior scholars.

Please email submissions in Microsoft Word format to profkitjohnson at gmail.com (Subject: AALS 2021: New Voices in Immigration Law). In your email, please indicate how you meet our selection priorities. If you have participated in previous AALS panels, please indicated when and in what capacity.

Inquiries: Please direct any questions or inquiries to Kit Johnson (profkitjohnson at gmail.com).


June 29, 2020 in Conferences and Call for Papers | Permalink | Comments (0)

Call For Papers--AALS 2021, Outsourced Borders and Invisible Walls

“Outsourced Borders and Invisible Walls”
Association of American Law Schools · Section on Immigration Law

January 5-9, 2021· San Francisco, CA

Submission Deadline: August 15, 2020

The Section on Immigration Law of the Association of American Law Schools invites papers for presentation at its principal session during the 2021 AALS Annual Meeting in San Francisco, California, which will take place January 5-9, 2021. This session has not yet been scheduled. We will send updated information when we have it. Please note that individuals presenting at the program are responsible for their own Annual Meeting registration fee and travel expenses

The Session theme is: “Outsourced Borders and Invisible Walls.”

This panel explores the many ways that the U.S. government relies on outsourced borders and invisible walls in its immigration policy. In recent years, the U.S. has outsourced many of its immigration enforcement functions. The federal government has delegated power and responsibility for immigration enforcement to state and local governments, to private actors, and to foreign governments. In its operation of and within detention facilities that are privately owned and maintained, its formal and informal collaboration with Mexican border agents and police, in its reliance on private contractors for building a border wall, and more, the U.S. government extensively leverages other entities and governments in its immigration enforcement efforts.

At the same time, the government has constructed a number of invisible barriers to immigration. In recent years, the White House has leveraged its control of administrative agencies to promote new barriers to immigration. Agencies and actors formally charged with protecting immigrants and workers have been repurposed to bolster immigration enforcement efforts. The resulting barriers block access to opportunities to immigrate legally under existing law and complicate individuals’ efforts to regularize their immigration status.

This panel will assess these outsourced borders and invisible walls, unpack the history behind them, and discuss the impact that these developments have had on democratic accountability and on the rights of migrants and long-term U.S. residents, including citizens.

Submission Guidelines: The deadline for submissions is August 15, 2020. We welcome submissions at any stage of development, although preference may be given to more fully developed papers over abstracts and paper proposals. Priority also will be given to individuals who have not recently presented a paper at the AALS Annual Meeting. Decisions will be made by September 30, 2020.

Please email submissions in Microsoft Word format to Jennifer M. Chacón (chacon at law.ucla.edu) with the subject “AALS Submission.” In your email, please indicate whether you have previously presented your work at an AALS Annual Meeting, and if so, when and in what capacity.

Inquiries: Please direct any questions or inquiries to Jennifer M. Chacón (chacon at law.ucla.edu) and Kit Johnson (profkitjohnson at gmail.com).


June 29, 2020 in Conferences and Call for Papers | Permalink | Comments (0)

Nuanced portraits of Asian, Latinx racial dynamics amid COVID-19 and BLM

The struggle for racial justice is a complex one, with duels within and among minority communities. This is especially true among Asian and Latinx communities in the United States. The mainstream media is beginning to offer some noteworthy portraits of these complex racial dynamics.

Asian Americans, who Viet Tran Nguyen reminds us in a Time Magazine special are alternately treated as model minorities and cheap labor, are sometimes pitted against black and Latinx communities for their comparative economic and educational successes. Their positioning during covid-19 as the source of "kung-flu" and "the China virus" provide another narrative, with their harrassment somewhat eclipsed by the comparisons to black and Latinx communities who suffer from racial disparities in health outcomes. Latinx communities have been heavily hit by covid-19 due to the concentration in essential jobs and multigenerational living situations that make social distancing difficult. These stories need to be told in light of changing demographics: Latinos are the largest foreign-born population in the US; Asian-Americans are the fastest-growing and rising presence with China's economic rise and global competition for high-skilled work.

Black Lives Matter has brought a reckoning to every person in society. Latinos have stood in solidarity with the message of unfair policing practices that endanger lives, sometmies complicated by the presence of immigrants vulnerable to deportation upon arrest and a history of economic competition. Asian-Americans have put it on themselves to stand with people of color while being susceptible to manipulation by white majorities. Their history has roots in the LA riots that found Korean business owners framed as antagonists with African-American communities during urban unrest and the resulting miscarriages of criminal justice scarcely mentioned at the time and recently features in a PBS documentary.

Many of the immigration restrictions have specifically targeted Asian and Latinx migration. (More to come on this thread.)

Hopefully the current conversation will resist simple narratives and delve deep into these multi-racial dynamics. 


June 29, 2020 in Current Affairs | Permalink | Comments (0)

How universities can expand support for DACA recipients amid COVID-19 cutbacks

Making choices the law does not require is hard. Making those choices when the going is tough is harder.

Now that the Supreme Court has ruled that the DACA program may continue, it will be up to universities to choose how they will continue to protect DREAMers. The government retains the authority to try again to end the program and they have choices about how they will continue to implement the existing program: whether to extend existing protections, adjudicate pending renewal applications and whether to shield DREAMers from deportation. Deportation is a choice, not a given.

Mostly likely DHS will let DREAMers stay in our communities and campuses (a topic discussed by KJ in immprof here). So long as DREAMers remain on campuses, universities will need to recommit to protections for undocumented students. It will be a hard choice because the university will need to do so voluntarily and without legal compulsion.  Specifically, post-DACA campuses will need to bolster support services, degree completion, student aid, and employment because this is what will be lost: eligibility for college (in some places) and the ability to work and afford tuition (in many more places) so they can finish school. Less tangible is that students will be scared and will, once again, retreat to a life in the shadows.

Harder: universities will need to support DREAMers amid truly difficult circumstances that create a perfectly terrible storm. Universities will need to shore up degree completion during a time when they’re in turmoil. They will need to provide student aid to compensate for lost work permits and immigrant exclusions from education loans and stimulus funding at a time when they are hemorrhaging revenue from lost tuition and lower enrollment. And they will need to communicate support when the public is gripped by fears of a disease that originated overseas and is eroding support for immigration.

  • Support services. Some universities are offering free online legal clinics, counseling services, and informational workshops: CU has an immigration clinic that has offered renewal clinics; there is a statewide meeting of universities to share best practices for supporting students on Friday, July 19. With social distancing requirements in place, campus coordinators will need to be creative in reaching out to students who may not be able to physically gather.
  • Degree completion. Covid-19 has shown that students can learn remotely. The University of Colorado will be in-person but it will offer remote classes to many who need it. The University of Arizona has individual online degree completion plans in place for its impacted students.
  • Student aid. Some undocumented students will still be eligible for in-state tuition; for example, undocumented students in California, Texas, and Colorado have access to in-state tuition and state financial aid.
  • The university should also consider expanding student access to emergency funds, especially for students who lose their work permits due to the DACA rescission and who need to support families who have lost jobs during the recession. The University of Colorado currently has an emergency fund that accepts private donations and makes small grants, but they are small and dependent on generosity from a public that is strained for resources amid job losses and furloughs.
  • Also, undocumented students are doubly impacted by COVID-19 and the DACA decision since the CARES Act emergency funds cannot be disbursed to undocumented students. The Department of Education is interpreting the statute to bar colleges; while a court enjoined their initial efforts, the DOE continues to propose rule that would circumvent this ruling. Colorado’s state and federal legislators are divided on extending public funds to undocumented immigrants.
  • Legal Support: University administrators will need to build on the momentum of the Supreme Court decision to push for continue and expanded legal protections from the federal government: from the US Citizenship and Immigration Services that administers DACA to the DHS components that enforce immigration laws that leave DREAMers vulnerable to deportation.

The Supreme Court decision is a victory for immigrants and the communities who are enriched by their contributions, but none of these solutions will fix the problem of DREAMers lacking a path to citizenship that only Congress can provide. State, local and campus-based supports will need to be supplemented with federal legislation that provides a pathway to permanent legal status and citizenship. But they are a critical foundation. The perilously close decision on DACA exposed the difficulties that DREAMers and undocumented people have long lived with, which have only been complicated with COVID-19 and challenges to racial equality: universities can make choices that help them thrive in these hard times.


June 29, 2020 | Permalink | Comments (0)

Immigration Article of the Day: The First Anti-Sanctuary Law: Proposition 187 and the Transformation of Immigration Enforcement by Rick Su


The First Anti-Sanctuary Law: Proposition 187 and the Transformation of Immigration Enforcement by Rick Su, 53 UC Davis Law Review 1983 (2020)


Anti-sanctuary efforts are sweeping the country, as the federal government and a growing number of states impose stringent restrictions on the ability of cities and other localities to limit their involvement in federal immigration enforcement. Many are now wondering how far this movement will go. But where and how did this movement begin? This Essay argues that the roots of the contemporary anti-sanctuary movement can be traced to Proposition 187, a ballot initiative adopted by California voters in 1994. As the nation’s first anti-sanctuary law, Proposition 187 established the basic provisions featured in nearly every anti-sanctuary measure enacted since. Moreover, it led the federal government to reshape federal law and initiatives to enable the kind of federal-local cooperation that Proposition 187 envisioned. As a result, Proposition 187 did more than simply set the groundwork for the modern anti-sanctuary movement. It also led to a restructuring of the federalism relationship that made the proliferation of anti-sanctuary legislation like Proposition 187 more necessary. In other words, although Proposition 187 is largely remembered as a benefit- restricting measure, it is its anti-sanctuary efforts that constitute its most lasting legacy. 


June 29, 2020 in Current Affairs | Permalink | Comments (0)

Sunday, June 28, 2020

COVID-Related Consular Closures Affect Many

United States Department of State, Public domain, via Wikimedia Commons

Check out this WSJ journal piece about how COVID-related closures of U.S. consulates have stranded immigrants around the globe.

The fact that people have been unable to schedule consular appointments since March -- to get their visas stamped or to complete required interviews -- may be affecting "hundreds of thousands of people world-wide ... based on the average number of visas the State Department issued each month during the last fiscal year."

The WSJ does a good job of explaining that these hurdles are a direct result of COVID-related precautions on the part of the U.S. State Department. Thus, this is a problem that has been brewing since the start of the nation's response to the outbreak in mid-March. As such, the problems PRE-date by months the President's new efforts to pause employment-based migration.

The article notes that for one international student, delays in processing may delay educational opportunities in the fall. If his experience is being replicated around the globe, it's entirely possible we're going to see our first dip in international student enrollment in many years.


June 28, 2020 in Current Affairs | Permalink | Comments (0)

U.S.Immigration Officers Were Deployed at Black Lives Matter Protests

Immigration Impact reports that, according to an internal government document, the Department of Homeland Security (DHS) deployed more than 700 personnel in the Washington, D.C. area alone to protests of police violence in the wake of the killing of George Floyd. Most of the officers were from U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE). They provided “support” to other federal law enforcement bodies responding to protests in the city and near the White House.

The DHS memo lists over a dozen agencies that had personnel called or sent to cities across the country. Cities under surveillance included Houston, Texas; Detroit, Michigan; Spokane, Washington; Saint Paul, Minnesota; and Jacksonville, Florida, among others. In some cases, officers went to locations where protests were merely planned. The dispatched officers include those with tactical and military style training on special teams within CBP and ICE.

In a letter to DHS’ Acting Secretary, members of Congress expressed grave concern with Homeland Security’s actions.


June 28, 2020 in Current Affairs | Permalink | Comments (0)

Ilya Somin: The Danger of America’s Coronavirus Immigration Bans


Ilya Somin in The Atlantic ("The Danger of America’s Coronavirus Immigration Bans") offers a conservative response to the Trump administration's many efforts to restrict immigration because of the global pandemic:

"The official justifications for these policies are the prevention of the spread of the coronavirus pandemic and the protection of American workers from wage competition. Neither rationale can justify such a sweeping restriction on immigration. Even more troubling, the order is a large-scale executive-branch power grab that sets a dangerous precedent. It makes a mockery of conservative jurists’ insistence that there are constitutional limits to the amount of authority Congress can delegate to the executive."


June 28, 2020 | Permalink | Comments (0)

Judge Orders ICE to Free Detained Immigrant Children Because of COVID-19

Vanessa Romo for NPR reports that, citing the unrelenting spread of the coronavirus, a federal judge has ordered that all children currently held in U.S. Immigration and Customs Enforcement custody for more than 20 days must be released by July 17.

U.S. District Judge Dolly Gee of California issued the order on Friday afternoon, saying the Trump administration had failed to provide the most basic health protections for children and their families amid the pandemic.

She described the ICE-operated facilities as being "on fire," adding that "there is no more time for half measures."

"Although progress has been made, the Court is not surprised that [COVID-19] has arrived at both the [Family Residential Centers] and [Office of Refugee Resettlement] facilities, as health professionals have warned all along," Gee wrote.

The order applies to all three of the family detention facilities in the United States. Two are located in Texas, and a third is in Pennsylvania, as well as shelters housing unaccompanied minors.

Holly Cooper, co-director of the University of California, Davis Immigration Law Clinicand one of the attorneys representing the class members in the lawsuit, said she is elated by the latest ruling.


June 28, 2020 in Current Affairs | Permalink | Comments (0)

Immigration Article of the Day: Connecting Past and Present: Central America’s Forced Migration as an Unfinished Project of Building Just Nations Post-Colonization and Post-Conflict by Raquel E. Aldana, Mario Mancilla, & Luis Mogollón


Connecting Past and Present: Central America’s Forced Migration as an Unfinished Project of Building Just Nations Post-Colonization and Post-Conflict by Raquel E. Aldana , Mario Mancilla, & Luis Mogollón


In this white paper, we aim to explicitly connect today’s Central America’s forced migration phenomena to the broader largely failed project of liberating the people from the Northern Triangle from the terrible grip of failed nations. We do this despite the obvious: neither civil wars nor incredibly ambitious peace processes have been terribly successful to help these nations transition to stronger and just democracies. The risk is great that we will fail to provide viable solutions to the Central American forced migration phenomena. We feel strongly, however, that our frame must embrace the complexity of forced migration’s root causes in the region and at least try to take up the daunting task of offering solutions that aim to innovate while at the same time contextualize a project of building just nations post-colonization and post-conflict that has been going on for more than a century.

We proceed in three parts. First, we provide a framework for understanding the concept of failed nations in Central America, with a particular focus in the Northern Triangle. Second, we provide a brief account of the heroic and monumental post-conflict nation-building efforts in the Northern Triangle, both the gains and unfinished tasks, to contextualize the recommendations that follow in Part III. In part III, we attempt to modernize a vision for building just nations in the Northern Triangle by (1) providing prescriptions that, inter alia, deemphasize, at least in the short term, the role of federal nation states in favor of more decentralized solutions that include local governments and communities (2) include important cross-border solutions that account for the ever present transnational agency of the problems in the region and (3) take up issues, both old and new, through evolving frameworks connecting human rights to sustainable development.


June 28, 2020 in Current Affairs | Permalink | Comments (0)

Friday, June 26, 2020

Curating Social Media


Law students are generally pretty savvy about their online presence. They've grown up with Facebook (launched in 2004 when many 1Ls were five or six), Twitter (launched in 2006 when many 1Ls were seven or eight), and Instagram (launched in 2010 when many 1Ls were eleven or twelve).

Still, law students may not yet have thought about how their online lives might affect their professional opportunities. And immprofs themselves might be regretting their own forays into online social networks.

Students and immprofs alike might, accordingly, appreciate some direction about how to curate their online history.

Facebook recently made it extremely easy to eliminate old posts by date or even associated people. This Washington Post article has a good write-up of the new tools. As for Twitter, TweetDelete is an app that makes it easy to delete tweets by date or specific text. Finally, Instagram posts can also be deleted or archived.

Think of it as online Spring cleaning, in early summer!


June 26, 2020 in Teaching Resources | Permalink | Comments (0)

Immigration Article of the Day: Patriotism, Rebuffed by Cathi Choi


Patriotism, Rebuffed by Cathi Choi, UCLA Asian Pacific American Law Journal, 2020


During the three decades that Diamond Kimm spent in the United States, he confronted the most powerful judicial and legislative authorities in the country. As a leader in the Korean American community in Los Angeles, Kimm spoke publicly about his political beliefs and criticized U.S. policies overseas and military intervention on the Korean peninsula. Immigration officials sought to deport Kimm on the basis of his suspected communist affiliations and Kimm’s subsequent fight to remain in the country illuminates a significant chapter in the development of constitutional protections for immigrants, as well as the history of Asian Americans in the United States.


June 26, 2020 in Current Affairs | Permalink | Comments (0)

Thursday, June 25, 2020

Lingering Ghosts by Sam Ivin

Time waiting for asylum: 8 months
(c) Sam Ivin

Sam Ivin is a photographic artist. His series Lingering Ghosts (an exhibition and a photo book with a clever passport-style cover) should be of interest to immprofs. Here's the formal description:

What does it mean to be an asylum seeker in the UK? This was the starting point of Ivin’s research, which began at a drop-in centre in Cardiff, Wales and continued all over England. It seeks to raise questions about how the UK’s migration system treats those who arrive in our country seeking safety.

The result is a book made up of hand scratched portraits, where the eyes have been erased: once arrived in the UK, these people find themselves in a state of limbo, having to await news of their application for asylum for months or even years. They become Lingering Ghosts. These physically scratched portraits attempt to convey the the cruel loss of self, and the frustration that befalls them as they wait to learn their fate.

Ivin’s work offers a contemplative take, away from the glaring lights of the media. His modified portraits simply and powerfully give a view on an issue that is often underreported: the plight of those waiting for asylum.

Despite being represented without their eyes, these people do have an identity and we recognise them as fathers, mothers, sons and daughters – human beings, after all.

Ivin's powerful works feel especially important today given recent developments in U.S. asylum law.


June 25, 2020 in Photos | Permalink | Comments (0)

Immigration Decisions in the Supreme Court 2019 Term, Upcoming Cases in the 2020 Term

The 2019 Term is not quite over but the Court today decided its final immigration case.

Immigration proved to comprise a significant part of the U.S. Supreme Court's docket for the 2019 Term.  Eight decisions directly or indirectly address immigration issues.  The eight cases are a couple more than the Court's average number of immigration decisions in a Term. 

The case that received the most public attention (and here, here, here) was the Court's surprising rejection of the Trump administration's attempt to rescind the Obama administration's Deferred Action for Childhood Arrivals (DACA) policy The DACA case attracted more attention than almost any immigration case in recent years.  Although the legal issues decided by the Court in the case are relatively narrow, the political repercussions of the decision will shape the future of immigration reform.

The immigration decisions from the 2019 Term, with links to case information from SCOTUSBlog, are listed below.  The Court devoted considerable attention to the judicial review of immigration matters and decided those cases in relatively conventional fashion.

1.  DACA

Department of Homeland Security v. Regents of the University of California, No. 18-587 [Arg: 11.12.2019 Trans./Aud.; Decided 6.18.2020]; Trump v. NAACP, No. 18-588 [Arg: 11.12.2019 Trans./Aud.; Decided 6.18.2020]; Wolf v. Vidal, No. 18-589 [Arg: 11.12.2019 Trans./Aud.; Decided 6.18.2020]

In a decision that surprised some Court watchers, the Court, in an majority opinion authored by Chief Justice John Roberts, held that the Department of Homeland Security’s decision to rescind the DACA policy was arbitrary and capricious in violation of the Administrative Procedure Act (APA). 

Some other aspects of the decision merit attention.  First, as an initial matter, the majority held that there were no jurisdictional hurdles to judicial review of the Trump administration's rescission of DACA.  Second, in Part IV of the the Chief Justice's opinion discussing the Equal Protection challenge to the rescission of DACA, Chief Justice Roberts wrote for only four justices; the plurality concluded that the pleadings did not give rise to facts leading to a reasonable inference that anti-Latina/o animus motivated the decision to rescind DACA.  Finding that the the Equal Protection claim should be allowed to be litigated, Justice Sotomayor did not join that part of the Chief's opinion.

2.  Cross-Border Shooting

Hernandez v. Mesa, No. 17-1678 [Arg: 11.12.2019 Trans./Aud.; Decided 2.25.2020]

The Court held that the family of a young Mexican national who was killed by a U.S. border officer in a cross-border shooting, did not have a private right of action to sue.  This case had previously been to the Court and remanded for further consideration by the court of appeals.

Justice Alito, who wrote for the Court, summarized the facts of the case:

"The facts of this tragic case are set forth in our earlier opinion in this matter, Hernández v. Mesa, . . . (2017) (per curiam). Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, was with a group of friends in a concrete culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico. The border runs through the center of the culvert, which was designed to hold the waters of the Rio Grande River but is now largely dry. Border Patrol Agent Jesus Mesa, Jr., detained one of Hernández's friends who had run onto the United States' side of the culvert. After Hernández, who was also on the United States' side, ran back across the culvert onto Mexican soil, Agent Mesa fired two shots at Hernández; one struck and killed him on the other side of the border."

3.  Judicial Review of the Application of Law to Undisputed Facts

Guerrero-Lasprilla v. Barr, No. 18-776 [Arg: 12.9.2019 Trans./Aud.; Decided 3.23.2020]; Ovalles v. Barr, No. 18-1015 [Arg: 12.9.2019 Trans./Aud.; Decided 3.23.2020]

Resolving a split in the circuits, the Court held that the phrase “questions of law” in the Immigration and Nationality Act’s 8 U. S. C. § 1252(a)(2)(D), includes the application of a legal standard to undisputed or established facts.

4.  Judicial Review and Expedited Removal

Department of Homeland Security v. Thuraissigiam, No. 19-161 [Arg: 3.2.2020 Trans./Aud.

The case raised the issue of the constitutionality of expedited removal of noncitizens.  The Trump administration has sought to expand expedited removal, which increased the importance of the Court's resolution of the case.  The issue is whether, as applied to the respondent, 8 U.S.C. § 1252(e)(2) is unconstitutional under the suspension clause.  As Kari Hong summarized the issue in the case:

"In Department of Homeland Security v. Thuraissigiam, the government is asking the Supreme Court to uphold a system of limited and narrow judicial review over the expedited removal procedure. In 1996, Congress created the expedited removal process, along with other bare-bones administrative procedures, that privilege speed over process. In expedited review, one front-line immigration officer can make the immediate decision to deport someone without a hearing if that the person is not a citizen and cannot prove that they lived in the United States for the past two years. If the person expresses a fear of persecution, an asylum officer then conducts a `credible fear interview' to assess a potential claim. Only if a `significant possibility' exists that the applicant’s asylum claim would succeed, are they given a full immigration hearing."

A 5-4 Court, in an opinion by Justice Alito, held that, as applied to the case at hand, the expedited removal statute does not does not violate the provision of the U.S. Constitution barring suspension of habeas corpus.  Thuraissigiam, who was apprehended about 25 yards from the U.S./Mexico border after entering the United States without inspection, did not seek release from custody, but an additional opportunity to obtain asylum.  Applying an originalist approach to constitutional interpretation, the majority held that, because it applies to challenges to detention, the Suspension Clause did not apply to this case and that the 1996 immigration reforms barred judicial review of the Thuraissigiam's asylum claim.  The Court also rejected the arguments that Thuraissigiam's due process rights had been violated by the lack of a court hearing on his asylum claims.  In so doing, the majority invoked extreme plenary power cases, including Knauff and Mezei, which the U.S. government will likely find useful in the future in seeking to limit the rights of noncitizens seeking admission into the United States.    

5.  Judicial Review/Torture Convention

Nasrallah v. Barr, No. 18-1432 [Arg: 3.2.2020 Trans./Aud.; Decided 6.1.2020]

The Court held that 8 U. S. C. §§ 1252(a)(2)(C) and (D) do not preclude judicial review of a noncitizen’s factual challenges to an order denying relief under the Convention Against Torture, which protects noncitizens from removal to a country where they would likely face torture. Torture Convention claims thus will continue to be subject to judicial review.

6.  Identity Fraud and Federalism

Kansas v. Garcia, No. 17-834 [Arg: 10.16.2019 Trans./Aud.; Decided 3.3.2020

The Court held that federal immigration law did not preempt the Kansas identity fraud statutes under which three undocumented immigrants were convicted  for using another person’s Social Security number on tax-withholding forms submitted to their employers. 

7.  Cancellation of Removal

Barton v. Barr, No. 18-725 [Arg: 11.4.2019 Trans./Aud.; Decided 4.23.2020].

The Court held that, in determining eligibility for cancellation of removal of a lawful permanent resident who commits a crime, an offense listed in 8 U. S. C. § 1182(a)(2) committed during the initial seven years of residence need not be one of the offenses of removal.  Jayesh Rathod for SCOTUSBlog reviews the competing views among the justices about the (1) proper interpretation of the immigration statute; and (2) the treatment of eligibility for removal of noncitizens with criminal convictions.  In Rathod's view, Justice Kavanaugh's majority opinion "upholds [a] restrictive reading of [the] immigration statute, limiting relief to noncitizens facing removal."

The Immigrant Legal Resource Center provides this practice advisory on the technical cancellation of removal issues decided by Barton v. Barr.

8.  First Amendment/Immigration Representation

U.S. v. Sineneng-Smith, No. 19-67 [Arg: 2.25.2020 Trans./Aud.; Decided 5.7.2020]. 

The Supreme Court held that the Ninth Circuit abused its discretion in reaching out to decide a question never raised by the respondent (an immigration consultant) -- whether 8 U. S. C. § 1324(a)(1)(A)(iv) (making it unlawful to "encourage[] or induce[] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law) is unconstitutionally overbroad in violation of the First Amendment.  The Court did not address the First Amendment question in its decision.

As summarized by Jack Chin on SCOTUSBlog,

The Supreme Court . . . resolved United States v. Sineneng-Smith without reaching the merits of the underlying First Amendment question, instead holding that the . . .  9th Circuit improperly injected the issue into the case. The court sent the case back for reconsideration based on the claims of the parties. Evelyn Sineneng-Smith had been convicted of violating 8 U.S.C. § 1324(a)(1)(A)(4), which prohibits `inducing or encouraging' unauthorized immigration. . . .  After her appeal had been briefed and argued in the 9th Circuit on more prosaic issues, the panel requested briefing on whether the statute was unconstitutionally overbroad, an issue Sineneng-Smith had not raised. . . . The 9th Circuit ultimately reversed the conviction because it found that the statute was overbroad, the ground that the court’s re-argument order had brought into the case. In an opinion by Justice Ruth Bader Ginsburg, a unanimous Supreme Court held today that `the panel’s takeover of the appeal' warranted reversal and remand for reconsideration in light of `the case shaped by the parties.'”


The 2020 Term

At least for now, there do not appear to be any major cases on the Court's docket for the 2020 Term.  The following immigration cases currently are set for consideration in the Supreme Court's 2020 Term:

1.  Relief from Removal

Pereida v. Barr, No. 19-438

This case raises the issue whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.   As described by Amy Howe on SCOTUSBlog.

"The question arises in the case of Clemente Pereida, who was convicted in Nebraska of `attempted criminal impersonation,' a misdemeanor for which he was fined $100. The dispute centers on whether the conviction was a `crime of moral turpitude,' which would bar Pereida from applying for relief from deportation. The federal government agreed with Pereida that review should be granted, although it agrees with the U.S. Court of Appeals for the 8th Circuit that Pereida is not eligible for relief from deportation."

2.  Effectiveness of Notice to Appear

Niz-Chavez v. Barr, No. 19-863

This case is a followup to Pereira v. Sessions (2018), which addressed the effectiveness of a notice to appear that fails to comply with the statutory requirements.  The issue in Niz-Chavez is whether, to serve notice in accordance with 8 U.S.C. § 1229(a) and trigger the stop-time rule (the rule that the time stops for satisfying the time requirement for eligibility for relief from removal), the government must serve a specific document that includes all the information identified in Section 1229(a), or whether the government can serve that information in a series of documents issued at the time of its choosing. 

3.  Immigrant Detention and Bond Eligibility 

Albence v. Guzman Chavez, No. 19-897 

The issue in this case is whether the detention of an alien who is subject to a reinstated removal order and who is pursuing withholding or deferral of removal is governed by 8 U.S.C. § 1231, or instead by 8 U.S.C. § 1226.  As John Elwood explained on SCOTUSBlog, the distinction between the two provisions matters because under Section 1226 noncitizens generally have the right to a bond hearing, while the government argues that they do not have that right under Section 1231.


June 25, 2020 in Current Affairs | Permalink | Comments (0)

Breaking News: Supreme Court Rejects Challenges to Expedited Removal

The Supreme Court today decided Department of Homeland Security v. Thuraissigiam.  Justice Alito, joined by the Chief Justice and Justices Thomas, Gorsuch, and Kavanaugh, as applied to the case at hand, the expedited removal statute does not does not violate the provision of the U.S. Constitution barring suspension of habeas corpus.  Thuraissigiam, who was apprehended about 25 yards from the U.S./Mexico border after entering the United States without inspection, did not seek release from custody, but an additional opportunity to obtain asylum.  The majority therefore held that, because it applies to challenges to detention, the Suspension Clause did not apply to this case and that the 1996 immigration reforms barred judicial review of the Thuraissigiam's asylum claim.  It also rejects the arguments that Thuraissigiam's due process rights had been violated, invoking extreme plenary power cases like Knauff and Mezei, which the U.S. government will likely find useful in the future in seeking to limit the rights of noncitizens seeking admission into the United States.    
Justice Thomas concurred to "address the original meaning of the Suspension Clause."
Justice Breyer, joined by Justice Ginsburg, concurred in the judgment, emphasizing that, in this case alone, the expedited removal process as applied did not violate the Suspension Clause. 
Justice Sotomayor, joined by Justice Kagan, dissented, concluding that the Suspension Clause had been violated by the denial of judicial review.  She wrote:  "Today’s decision handcuffs the Judiciary’s ability to perform its constitutional duty to safeguard individual liberty and dismantles a critical component of the separation of powers."  Justice Sotomayor also rejects the majority's due process analysis since Thuraissigiam was apprehended in the United States.
Stay tuned for further analysis.
UPDATE (June 26):  Nicole Narea on Vox ("The Supreme Court just allowed Trump’s expansion of deportations to go unchecked") looks critically at the Court's decision.
UPDATE (June 27):  Kari Hong offers the opinion analysis of Thuraissigiam  for SCOTUSBlog.
UPDATE (July 1):  Jeffrey Chase analyzes the Court's opinion.  His final line:  "Thus, as more asylum seekers are subjected to credible fear determinations under an increasingly uncertain standard, the Supreme Court's opinion has closed the lone avenue for obtaining federal court review of the propriety of a negative determination."
UPDATE  (July 2):  More on the decision from Aditi Shah on Lawfare.
UPDATE (July 7):  Amanda Tyler looks at the impacts of Thuraissigiam on Lawfare.

June 25, 2020 in Conferences and Call for Papers | Permalink | Comments (1)

A Sign of the Times: A drive-thru naturalization ceremony

News from San Diego.  Yesterday, more than 150 people from 42 countries were naturalized in an "unusual drive-thru ceremony" morning held by U.S. Citizenship and Immigration Services. Naturalization ceremonies are attended by hundreds of new citizens and their family members. Such ceremonies are a casualty of the coronavirus pandemic, with many naturalization ceremonies postponed. People who had waited months, even years, to become naturalized citizens worried that they they would be unable to vote in November.


June 25, 2020 in Current Affairs | Permalink | Comments (0)