Thursday, June 25, 2020

Immigration agency announces furlough of nearly 70 percent of its workforce

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Rebecca Klar on the Hill reports  that the U.S. Citizenship and Immigration Services (USCIS) is preparing to furlough nearly 70 percent of its workforce as the agency faces budget shortfalls.   About 13,400 of the agency’s 20,000 employees will receive notice that they will be furloughed starting August 3 if the agency does not receive additional funding from Congress, the spokesperson said in a statement. The agency is primarily funded by fees from new immigration applications, but has suspended in-person services amid the coronavirus pandemic. The spokesperson said USCIS has seen a 50 percent drop in receipts and incoming fees since March, and estimates that application and petition receipts will drop by about 61 percent through the end of fiscal year 2020.

KJ

June 25, 2020 in Current Affairs | Permalink | Comments (1)

Immigration Article of the Day: A Look Back at the Warren Court’s Due Process Revolution Through the Lens of Immigrants by Raquel E. Aldana & Thomas O'Donnell

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A Look Back at the Warren Court’s Due Process Revolution Through the Lens of Immigrants by Raquel E. Aldana & Thomas O'Donnell, The University of the Pacific Law Review / Vol. 51

Abstract

At the University of the Pacific Law Review Symposium titled “The Warren Court’s Criminal Procedure Revolution: a 50 year Retrospective,” held October 11, 2019, much of the commentary around the legacy of the Warren Court’s due process revolution was somber for very legitimate reasons. Yet, a retrospection of this important due process revolution through an immigration lens elucidates lessons perhaps overlooked. Foremost, by expanding the universe of the laws, people, and context we consider to evaluate the Warren Court’s criminal due process legacy, we glean that it is much broader than initially imagined; indeed, broader than it was intended even by the Warren Court itself. Moreover, this legacy is perhaps not quite finished in the area of immigration law. At least, we foresee that the crimmigration crisis and the immigration federalism wave could still yield an unintended and unimagined due process revolution for immigrants that is long overdue. We proceed in this essay in two principal parts. In Part I, we provide a historical context to the immigration cases decided during the Warren Court and contrast the few due process gains that immigrants enjoyed compared to criminal defendants. In Part II, we expand on the important immigration law developments fifty years post-the Warren Court through the lens of the Warren criminal due process revolution.

KJ

 

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

Wednesday, June 24, 2020

Goal Click Refugees

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Goal Click Refugees is a worldwide storytelling project that documents the "experiences of refugees and asylum-seekers across the globe through the lens of football." Participants receive disposable cameras, which they use to chronicle their lives.

The series includes photos from such far flung locales as the US, UK, Jordan, Australia, and Kenya.

The subject of the photo to the right is Maram in the Zaatari camp of Jordan, who writes: "Because I am a girl, I can be the person that changes how the community perceives girls’ football and breaks the wall of shame.”

The project also introduced me to Rooklyn International Football Association, which serves "asylee, immigrant and refugee youth in NYC through soccer instruction." Love.

To see the entire series, follow the link above. Or, on twitter, check out #GoalClickRefugees.

-KitJ

June 24, 2020 in Photos | Permalink | Comments (0)

Julia Preston, The True Costs of Deportation

Former New York Times immigration reporter has a study for the Marshall Project (The True Costs of Deportation) that looks at the human costs of deportations on families.  Here is the teaser: "When immigrant parents of American children are expelled, the lives of their loved ones can fall apart. Here are the stories of three families who faced financial ruin, mental health crises—and even death."  Preston's work is always powerful. 

For a book length treatment of the impacts of the deportation of a long term immigrant resident, including impacts on U.S. citizen children and spouses,  check out Beth C. Caldwell's book, Deported Americans:  Life After Deportation to Mexico (2019).  It is based on interviews with more than 100 people affected by removal.  The Southwestern Law Review is doing a symposium of reviews on the book.  Here is a paragraph from my review:

"With the nation experiencing a whirlwind of immigration changes unprecedented in modern U.S. history, it is an especially fortuitous historical moment for the release of Beth Caldwell’s book Deported Americans:  Life After Deportation to Mexico.  Telling the stories of deported immigrants unknown to most Americans, this succinct volume looks at immigration law from a fresh and different perspective than the dry analysis of the law typical of legal scholarship.  Caldwell critically analyzes how the application of the immigration laws has changed the lives of many long term residents of the United States who against their will and with great personal cost, have been involuntarily removed from their home.  Focusing on deportees to Mexico and Central America, most of who were removed because of criminal convictions, the book demonstrates for all to see the racism baked into the laws and modern immigration enforcement.  Given that a public outcry has called for addressing systemic racial injustice in policing, Deported Americans came at a particularly opportune historical moment to focus the nation’s attention on the enforcement of the immigration laws."

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KJ

June 24, 2020 in Current Affairs | Permalink | Comments (2)

What's next after DHS v. UC Regents? The political, the legal, and the practical questions

Following the DHS v. UC Regents decision striking down the DACA rescission, immigration lawyers and analysis are considering their next steps. Three major questions loom large: (1) will the White House try again to rescind DACA using proper procedures, (2) will the USCIS accept new applications and ancillary benefits like advance parole, and (3) will the USCIS faithfully process extensions of existing and recently-expired applications.

The Political: Will the WH try again to rescind the program?

The Supreme Court decision said that the Trump administration can rescind the program, if it follows the proper procedures and provides sufficient justification for their policy change. In a series of tweets, Trump and Ken Cuccinelli, acting deputy secretary of the U.S. Department of Homeland Security, declared their intent to move forward with canceling the Obama-era program, which has allowed an estimated 700,000 unauthorized immigrants who arrived in the U.S. as children to continue living and working in the country.

"The Supreme Court asked us to resubmit on DACA, nothing was lost or won [...] We will be submitting enhanced papers shortly in order to properly fulfil the Supreme Court's [...] ruling & request of yesterday," Trump tweeted.

"We are on it @DHSgov Mr. President!" Cuccinelli tweeted in response.

While Acting DHS Secretary Chad Wolfe said his agency will follow the Supreme Court decision, the USCIS has yet to release guidance on important implementation decisions. In the meantime the agency posted this statement to its website.

Today’s court opinion has no basis in law and merely delays the President’s lawful ability to end the illegal Deferred Action for Childhood Arrivals amnesty program. 

DACA was created through an Executive Branch memorandum after President Obama said repeatedly that it was illegal for him to do so unilaterally and despite the fact that Congress affirmatively rejected the proposal on multiple occasions. The constitutionality of this de facto amnesty program created by the Obama administration has been widely questioned since its inception. The fact remains that under DACA, hundreds of thousands of illegal aliens continue to remain in our country in violation of the laws passed by Congress and to take jobs Americans need now more than ever. Ultimately, DACA is not a long-term solution for anyone, and if Congress wants to provide a permanent solution for these illegal aliens it needs to step in to reform our immigration laws and prove that the cornerstone of our democracy is that presidents cannot legislate with a ‘pen and a phone.

The Legal: USCIS Guidance on Implementaton of DACA decision: what is known, what is to be determined 

There seems to be broad agreement that existing DACA protections will be recognized and can be renewed, and that people whose DACA expired one year ago or less can file a renewal request. People whose DACA expired more than one year ago or whose DACA was terminated may file a new DACA request, but they cannot file a comparatively simpler DACA renewal request. Work permits, which rest on separate regulations, should continue to be granted. (My MonkeyCage analysis of these and related issues appears here.)

There is uncertainty about whether people who have not previously been granted DACA can file for the the first time. 

There is also question whether the DACA decision requires DHS to maintain advance parole requests premised on the DACA program.

The American Immigration Lawyers Association in a practice advisory is recommending that people wait to file first-time applications and advance parole requests until there is USCIS guidance. They also recommend that DREAMers obtain an individualized assessment of risks and benefits because some clients and lawyers might be more willing to take risks (and some clients might be in a better position to take those risks) whereas others might be more risk-adverse. (As a practical matter, with COVID travel restrictions, it seems like even if advance parole could be obtained there could be some practical limitations to traveling to Mexico in the near term. H/T Megan Hall, CU Law).

The Practical: Will the USCIS faithfully process existing DACA applications

Setting aside the uncertainties in political analysis and legal interpretation, a real question exists about whether the USCIS will faithfully administer the DACA applications that the recent decision permits. The agency's opposition to the decision and dislike of the program are on public display. They are in the midst of a funding crisis and may soon face 30-day furloughs. And civil servants have always had broad discretion in how vigorously they pursue their agency mission and possess many means of subtly underming it. This is neither a political question or a legal one; it is a practical one -- it might be the most important of all.

MHC

June 24, 2020 in Current Affairs | Permalink | Comments (0)

DC Circuit Green Lights Trump Expedited Removal Plan

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Todd Ruger on Roll Call reports on the U.S. Court of Appeals for the D.C. Circuit's decision yesterday on challenges to the Trump administration's  expansion of expedited removal. The court overturned a preliminary injunction against the Department of Homeland Security's (DHS) new rule that significantly expands the U.S. government's power to summarily remove a noncitizen from the United States.

Judge Patricia Millett, appointed by President Obama, wrote for the majority siding with the Trump administration and its efforts to expand expedited removal -- removal without a hearing before a judge -- to noncitizens found anywhere in the United States within two years of crossing the border.  Previously, expedited removal had been limited to noncitizens apprehended within one hundred miles of the border who had been in the country for less than two weeks.

KJ

June 24, 2020 in Current Affairs | Permalink | Comments (0)

The Revolt of the (Immigration) Judges

 

Stephen Franklin for the American Prospect considers the political controversy over the political independence of U.S. immigration judges, who decide, among other things, whether to remove noncitizens from the United States.  

The video above is from the National Association of Immigration Judges (NAIJ), the union that represents the nation’s 460-plus immigration judges—many of whom come from government and law enforcement backgrounds.

Franklin discusses how NAIJ has lobbied Congress and spoken out frequently about what’s gone wrong with the immigration courts under the Trump administration. "Such criticisms, the judges say, are the reason that the government sought last August to decertify their union, the only such effort taken by the Trump administration against a federal workers’ labor organization."

KJ

 

June 24, 2020 in Current Affairs | Permalink | Comments (0)

Tuesday, June 23, 2020

Immigration Article of the Day: Appellate Exceptionalism? by R. Parker Sheffy & Geoffrey A. Hoffman

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Appellate Exceptionalism? by R. Parker Sheffy & Geoffrey A. Hoffman

Abstract

Immigration law is “exceptional” in ways that have significant ramifications for immigrants, the government and tribunals. Within the context of immigration law, a hierarchy of courts and administrative bodies exists. Immigrants are able to challenge unfavorable Board of Immigration Appeals (BIA) decisions in the appropriate circuit court of appeals; however, contrary to the binding authority generally bestowed upon decisions issued by higher courts in the federal system, BIA decisions vacated by federal appellate courts are considered to retain their precedential value. This odd practice implicates a variety of concerns: including, e.g., the separation of powers, the horizontal relationship between circuit courts, and the uniformity of national immigration law, among other issues. The practice also provides an implicit rationale for legitimizing blatantly partisan Attorney General decisions. These decision may be poorly reasoned, politically motivated, or lead to absurd results with unintended consequences. This article explores these concerns, identifying proscriptive recommendations. Chevron deference receives particular emphasis as its theoretical underpinnings closely reflect many of the concerns implicated by the judicial deference shown vacated BIA decisions.

KJ

June 23, 2020 in Current Affairs | Permalink | Comments (0)

Monday, June 22, 2020

USCIS Rule Strengthens Employment Eligibility Requirements (i.e. Restricts Work Authorization) for Asylum Seekers

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In the time of the coronavirus, the Trump administration is making many aggressive immigration policy changes.  Besides the Presidential Proclamation extending the suspension of certain visas until the end of 2020, the U.S. Citizenship and Immigration Services posted this press release today:

WASHINGTON—U.S. Citizenship and Immigration Services today announced a regulatory change to deter aliens from illegally entering the United States and from filing frivolous, fraudulent, or otherwise non-meritorious claims for asylum to obtain an employment authorization document. This rule does not alter asylum eligibility criteria in any way and will be effective on Aug. 25.

This rule stems from the April 29, 2019, Presidential Memorandum on Additional Measures to Enhance Border Security and Restore Integrity to Our Immigration System, which emphasizes that it is the policy of the United States to manage humanitarian immigration programs in a safe and orderly manner, and to promptly deny benefits to those who do not qualify.

Safeguarding the integrity of our nation’s legal immigration system from those who seek to exploit or abuse it is key to the USCIS mission,” said Joseph Edlow, the USCIS Deputy Director for Policy. “The reforms in this rule are designed to restore integrity to the asylum system and to reduce any incentive to file an asylum application for the primary purpose of obtaining work authorization. It also deters frivolous and non-meritorious applications by eliminating employment authorization for aliens who have failed to file for asylum within one year of their last entry until USCIS or an immigration judge determines the alien’s eligibility for asylum.”

The rule prevents aliens who, absent good cause, illegally entered the United States from obtaining employment authorization based on a pending asylum application. Additionally, the rule defines new bars and denials for employment authorization, such as for certain criminal behavior; extends the wait time before an asylum applicant can apply for employment authorization from 150 days to 365 calendar days; limits the employment authorization validity period to a maximum of two years; and automatically terminates employment authorization when an applicant’s asylum denial is administratively final.

For more information read the final rule, scheduled to be published in the Federal Register on June 26.

KJ

June 22, 2020 in Current Affairs | Permalink | Comments (0)

The Empire Strikes Back: Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak

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After losing in the Supreme Court last week, President Trump today issued a "Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak"

The Proclamation begins as follows:

"The 2019 Novel Coronavirus (COVID-19) has significantly disrupted Americans’ livelihoods. Since March 2020, United States businesses and their workers have faced extensive disruptions while undertaking certain public health measures necessary to flatten the curve of COVID-19 and reduce the spread of SARS-CoV-2, the virus that causes COVID-19. The overall unemployment rate in the United States nearly quadrupled between February and May of 2020 — producing some of the most extreme unemployment ever recorded by the Bureau of Labor Statistics. While the May rate of 13.3 percent reflects a marked decline from April, millions of Americans remain out of work."

Extending a 60 day suspension announced in April, the proclamation provides that, effective through December 31, 2020 unless continued,

"[t]he entry into the United States of any alien seeking entry pursuant to any of the following nonimmigrant visas is hereby suspended and limited, subject to section 3 of this proclamation:

(a) an H-1B or H-2B visa, and any alien accompanying or following to join such alien;

(b) a J visa, to the extent the alien is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying or following to join such alien; and

(c) an L visa, and any alien accompanying or following to join such alien."

Jake Lahut for Business Insider reviews some of the details of the latest proclamation.

KJ

June 22, 2020 | Permalink | Comments (0)

Urban Institute: One in Five Adults in Immigrant Families with Children Reported Chilling Effects on Public Benefit Receipt in 2019

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Research from the Urban Institute found that in 2019, the Trump administration’s “public charge” rule caused one in five immigrant families with children to deny themselves critical resources like public health coverage and food assistance out of fear that it could hurt their chances of obtaining a green card or adjust their immigration status.

“Although the public charge rule excludes benefits used by children as a factor in their parents’ public charge determination, reluctance to participate in public programs out of fear or confusion about immigration consequences could make it even harder for immigrant families with children to address their basic needs,” write Jennifer M. Haley, Genevieve M. Kenney, Hamutal Bernstein and Dulce Gonzalez. “This could place immigrant families’ health and well-being at risk, especially during the current COVID-19 pandemic and recession.”

KJ

June 22, 2020 in Current Affairs | Permalink | Comments (0)

U.S. Immigration Crackdowns Not Unusual During Times Of Crisis

 

Deborah Amos on NPR reports that President Trump is expected to sign an order to suspend some temporary work visas through the end of the year.  History shows a connection between pandemics and efforts to limit immigration.  Amos looks back at the 1918 flu pandemic to illustrate how, historically, “immigration crackdowns aren't unusual when the country faces a crisis.” 

Since the start of the COVID-19 pandemic, the Trump administration has issued at least 47 immigration-related policy changes, affecting almost every facet of our immigration system.

KJ

June 22, 2020 in Current Affairs | Permalink | Comments (0)

DACA in Three Acts: Genesis, Impacts, Future

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In light of the Supreme Court's decision last week on the attempted rescission of teh Deferred Action for Chilihood Arivals policy, I wrote this Policy Brief  (DACA in Three Acts: Genesis, Impacts, Future) for the UC Davis Global Migration Center.  The conclusion reads as follows:

"The Supreme Court’s DACA decision is in the books.  DACA lives another day.  However, its days may be numbered.  The Trump administration may again seek to end the policy.  Alternatively, it could allow DACA to continue in some form for the time being and avoid a political backlash.

Despite all the fanfare, it remains true that DACA is only a limited “fix” for some noncitizens without legal status.  Only Congress can bring about meaningful and lasting immigration reform.  It unquestionably has been a long time coming.  The saga of DACA kept immigration at the forefront of the national consciousness and spurred a robust political movement for meaningful immigration reform that shows no signs of going away anytime soon.  The nation will see how and when Congress will address immigration reform."

KJ

 

 

June 22, 2020 | Permalink | Comments (0)

Immigration Article of the Day: Banished and Overcriminalized: Critical Race Perspectives of Illegal Entry and Drug Courier Prosecutions by Walter Goncalves

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Banished and Overcriminalized: Critical Race Perspectives of Illegal Entry and Drug Courier Prosecutions by Walter Goncalves, Columbia Journal of Race and Law, Vol. 10, No. 2, 2020

Abstract

Scholarship on illegal entry and drug courier prosecutions fails to apply Critical Race Theory (CRT). Disregard of how these prosecutions contribute to racial stratification in and outside American prisons or how drug couriers experience intersectionality ignores sociological and cultural processes. Criminal justice professionals have racialized the system through implicit biases, but a CRT approach to criminal defense can ameliorate this problem. As such, scholars cannot refuse to take notice of CRT.

Jennifer Chacón and Ingrid Eagley have written on illegal entry, describing the convergence of immigration and criminal law. Mona Lynch and Caleb Mason have conducted studies on drug couriers, focusing on the selection of cases for prosecution and the market for couriers along the United States-Mexico border. These scholars failed to consider how post-colonialism or historical oppression (both CRT tools) influence legal processes. Their analyses also lack practical implications for defense lawyers.

This Article uses CRT to unpack the historical and contemporary reality of these prosecutions. With this new framework, it describes strategies for the defense lawyer with the aim of mitigating implicit bias, the main source of racial disparity in today’s federal criminal courts. In so doing, it is the first CRT investigation of two types of border crimes. It is also the first to describe a race-conscious criminal defense practice within the context of CRT.

KJ

June 22, 2020 in Current Affairs | Permalink | Comments (0)

Sunday, June 21, 2020

Will President Trump Make the Supreme Court's DACA Decision a 2020 Presidential Campaign Issue?


Will Weissert & Zeke Miller for the Associated Press consider whether  President Trump will make the Supreme Court's rejection of his attempt to dismantle the Deferred Action for Childhood Arrivals (DACA) policy an issue in the 2020 presidential campaign.  "The president is betting that he can energize his most loyal supporters by fighting the Supreme Court . . . . Trump, who often attempts to shift the nation’s focus to immigration when forced to defend himself on other fronts, said . . . he would renew his legal effort" to end DACA.

The push could allow Trump to fire up his base on an issue that was a centerpiece of his 2016 victory while highlighting Democratic challenger Joe Biden’s struggle to win over Latino voters. But it could also further alienate swing voters. “It doesn’t make any political sense, or moral sense or ethical sense,” said Republican strategist Tim Miller, a frequent Trump critic and veteran of Jeb Bush’s unsuccessful 2016 presidential run. “Anybody that likes (Trump) because of his willingness to ‘go there’ on racial and immigration issues is already with him, and he’s not picking up anybody else.”

KJ

June 21, 2020 in Current Affairs | Permalink | Comments (1)

Immigration Article of the Day: Discriminatory Cooperative Federalism by Ava Ayers

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Immigration Article of the Day: Discriminatory Cooperative Federalism by Ava Ayers

Abstract

This article looks at how Congress allows states to discriminate against noncitizens through cooperative federalism.  Clarifying the federal and state components provides a plan of attack.

KJ

June 21, 2020 in Current Affairs | Permalink | Comments (0)

Saturday, June 20, 2020

“DREAMers” versus the Labels Used in Government Documents and Judicial Opinions in Department of Homeland Security v. Regents of the University of California by Professor Maritza Reyes

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“DREAMers” versus the Labels Used in Government Documents and Judicial Opinions in Department of Homeland Security v. Regents of the University of California by Professor Maritza Reyes

On November 20, 2015, I published The Fifth Circuit in Texas v. United States Chose and Advocated the Term “Illegal Alien” in the online symposium featuring that decision. My contribution analyzed the Fifth Circuit majority panel’s deliberate and subjectively supported choice of the term “illegal alien,” as explained in a footnote of the decision. The two federal appellate judges applied that term to the group of individuals also known as “DREAMers,” immigrants covered by the “Deferred Action for Childhood Arrivals” (DACA) exercise of prosecutorial discretion that was enacted during the Obama Administration.

In Department of Homeland Security v. Regents of the University of California, the Supreme Court of the United States reviewed the attempt by the Trump Administration to rescind DACA.  Chief Justice Roberts, in a majority opinion joined by Justices Breyer, Ginsburg, Kagan and Sotomayor, ruled that “the Acting Secretary [of the Department of Homeland Security] did violate the [Administrative Procedure Act], and that the rescission [of DACA] must be vacated.” Documents referenced by the Court show that the majority of immigrants covered by DACA are Latinos. In his Equal Protection analysis, Chief Justice Roberts readily dismissed the plausibility of the discriminatory purpose of the Trump Administration’s rescission of DACA. He basically made factual findings with regard to President Trump’s “critical statements about Latinos” as “remote in time and made in unrelated contexts.” Justice Sotomayor criticized this determination as “unwarranted on the existing record and premature at this stage of the litigation.”

I dare to say that Justice Sotomayor agrees that words matter. Quoting herself, in her explanation for not joining in Part IV of the majority opinion (the Equal Protection analysis), she concluded that “[t]aken together, ‘the words of . . . President [Trump]’ help to ‘create the strong perception’ that the rescission decision was ‘contaminated by impermissible discriminatory animus.’” She also elaborated that the “the plurality minimizes the disproportionate impact of the rescission decision on Latinos after considering this point in isolation.” She cautioned: “But the impact of the policy decision must be viewed in the context of the President’s public statements on and off the campaign trail.”

Immigrants have helped to build this nation. We must continue to speak truth to power. The labels people with power use to refer to groups of people in this country matter. The names people call the DREAMers matter. We should scrutinize the choice of terminology and the message these choices may signal about the animus of institutional actors with decision-making power over the future of DREAMers and other undocumented immigrants. Some DREAMers are risking their lives as they help to save lives during the COVID-19 pandemic; they are essential to the future of this country. The pandemic has confirmed that undocumented immigrants are also essential to the sustenance of the country’s population. They should all be called heroes.

The Obama Administration’s 2012 DACA Memo establishing DACA described DREAMers as “individuals” and as “young people who were brought to this country as children and know only this country as home.” The Trump Administration’s 2017 DACA Memo purporting to rescind DACA described DREAMers as “illegal aliens.” Both memos were cited in the Court’s decision. In the majority opinion, Chief Justice Roberts referred to DREAMers as “unauthorized aliens” and as “DACA recipients.” In his dissenting in part, concurring in part opinion, Justice Thomas, joined by Justices Alito and Gorsuch, referred to DREAMers as “illegal aliens.” In his dissenting in part, concurring in part opinion, Justice Kavanaugh referred to DREAMers as “immigrants.”

In 2009, in Mohawk Industries, Inc. v. Carpenter, Justice Sotomayor delivered the opinion of the Court and introduced the term “undocumented immigrant” to the Court’s jurisprudence. In 2011, in Chamber of Commerce v. Whiting, the Court analyzed employment provisions of the Immigration Reform and Control Act of 1986 (IRCA).  The relevant section of IRCA at issue in the case stated the term “unauthorized alien;” however, as demonstrated in Justice Sotomayor’s dissent in that case, prior opinions of the Court ignored the statutory term and replaced it with “illegal alien” when analyzing the statute.

After the decision in Whiting was issued, in a story titled Supreme Court Upholds Arizona Immigration Law; Chief Justice is PC with terminology, the American Bar Association Journal noted the allegedly “politically correct” use of “unauthorized aliens” or “unauthorized workers,” as opposed to “illegal aliens” or “illegal immigrants.” However, aside from any alleged “political correctness,” Justice Roberts simply stated the statutory terminology, what those trained in the law are supposed to do. “The term ‘unauthorized alien’ means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this Act or by the Attorney General.” Some federal courts have used the terms “unadmitted” and “nonadmitted” alien. These terms have a basis in law because it is reasonable to conceive, based on current immigration statutes, that the terms “nonadmitted” and “unadmitted” describe noncitizens that did not make a lawful entry and were not inspected or authorized by an immigration officer.

Regretfully, the debate over immigration reform has been fueled and railroaded by rhetoric that is counter-productive, divisive, and dangerous. It is one thing for people who are not knowledgeable of the law and its history to use the pejorative terms “illegal alien” and “illegal immigrant;” however, it should become unacceptable for government officials and judges to use labels like “illegal alien” and “illegal immigrant.” When placed in the historical and current context of the United States, these terms carry racial animus. They have developed to attach an identity as inferior human beings to a group of people who are not wanted in the United States, including citizens and noncitizens. The term “illegal” has also become code language for Latinos. If government officials and judges will not do the right thing and stop using such pejorative terms, the people, especially lawyers, must challenge their use.

KJ

June 20, 2020 in Current Affairs | Permalink | Comments (0)

The Equal Protection Claim in the DACA Cases

SCOTUSBlog is featuring a symposium on the Supreme Court's decision in Department of Homeland Security v. Regents of the University of California, which held that the Trump  administration's attempt to dismantle the Deferred Action for Childhood Arrivals (DACA) policy was arbitrary and capricious in violation of the Administrative Procedure Act.    The symposium contributions come from public interest attorneys, state officials, law professors, and others and are well worth reading.

Nina Perales of the Mexican American Legal Defense and Educational Fund discusses a important issue in the Court's decision that is not getting much attention.  Part IV of Chief Justice Roberts' opinion, which is not joined by Justice Sotomayor and thus represents the views of only four justices, concludes that there was not sufficient facts pleaded to support the plausible inference that racial animus against Latina/os motivated the Trump administration's decision to end DACA in violation of the Equal Protection guarantee. Roberts specifically writes for the plurality that  the facts alleged fail to "raise a plausible inference that the rescission was motivated by animus."

Justice Sotomayor, who joined Chief Justice Roberts' opinion concluding that the rescission of DACA was arbitrary and capricious and therefore violated the Administrative Procedure Act, did not join Part IV of the opinion.  In her view, "[t]he complaints each set forth particularized facts that that plausibly allege discriminatory animus." 

In her contribution to the SCOTUSBlog DACA symposium, Nina Perales comments on the Equal Protection claim:

"The court did agree with the administration that the rescission challengers failed to plead sufficiently their claim of intentional racial discrimination. In order to reach this result, the majority had to brush aside the president’s statements that Latinos are `people that have lots of problems,' `the bad ones' and `criminals, drug dealers, [and] rapists.' However, it’s no coincidence that Latinos are located at the center of both of the court’s recent decisions on illegal agency actions. In [the 2019 ruling on the inclusion of a U.S. citizenship question on the 2020 Census], the administration sought to undercut Latino political representation, and in Regents, it sought to end protections for primarily Latino immigrant youth. Twice the administration made hasty, improper and injurious decisions aimed at Latinos and twice the court stepped in to enforce the basic requirements of the [Administrative Procedure Act]. The ball is once again in the administration’s court. Let’s hope our leaders abandon the effort to end DACA."

            The Equal Protection claim in the DACA rescission litigation deserves attention.  DACA provided relief to hundreds of thousands of young undocumented immigrants.  Close to ninety percent of the DACA recipients were Latinx, with the top four sending countries Mexico, El Salvador, Guatemala and Honduras.  Top Countries of Origin for DACA Recipients, Pew Research Center (Sept. 25, 2017).  Many other Trump immigration initiatives, such as removals, immigrant detention, ending Temporary Protected Status for Salvadorans, Hondurans, and Nicaraguans, the revamped public charge rule, and much more  for have had devastating impacts on Latina/o noncitizens and U.S. citizens.  The President's derogatory comments about Mexicans as criminals, MS-13 members as "animals," and El Salvador as a "s---hole" country whose citizens should not be afforded relief to stay in the United States, among many other comments, suggest that race influences his immigration views.

UPDATE (June 25):  A detailed post on George Washington Law Review On the Docket by two senior NAACP attorneys looks at the Equal Protection claim:

"Regents . . . . represents a troubling missed opportunity for the Court to confront the evidence that DACA’s rescission was motivated, at least in part, by unconstitutional racial animus. Rather than acknowledge the harms caused by statements of overt racial hostility by presidential candidates—and the constitutional significance of those statements—a plurality of the Court appears to have exempted such statements from meaningful scrutiny. As Justice Sotomayor pointed out, that decision cannot be squared with precedent. It also fails to recognize the severe consequences of racist campaign rhetoric and signals a troubling reluctance by the Court to fairly adjudicate race discrimination claims."

Laura Gomez also comments on the racial discrimination claim.

KJ

June 20, 2020 in Current Affairs | Permalink | Comments (0)

World Refugee Day – June 20, 2020

Each June 20, the world celebrates World Refugee Day. The United Nations General Assembly launched the holiday in 2000, and since then, the worldwide community has spent the day focused on ways to improve the lives of refugees.

Most of us know that refugees are forced to leave their homes due to war, terror, or other crises—but fleeing their home country is often just the beginning of a difficult journey. Many refugees find themselves living in camps until they are resettled—some of which are dangerous or not well-equipped for long term living. Refugees don’t always have a say in which country they are ultimately relocated to, and the bureaucratic process involved in finding their new home can take years. Worldwide refugee crises have taken center stage in the news in recent years, so it’s more important than ever to share support and to celebrate World Refugee Day.

How to observe World Refugee Day:

  1. Attend a United Nations event

    The UN plans to host live digital events on World Refugee Day discussing the world refugee crisis, future goals surrounding the topic, and how to make a difference. Be on the look out for summaries of the events’ happenings, or see if you can attend for yourself.

  2. Be a friend to refugees in your community

    Reach out to refugees in your area. Consider inviting them into your home for dinner, or to spend a few nights in your guest room if they’re in need of somewhere to stay. Introduce them to your local community so they’ll have an easier time getting to know their new neighborhood. Simply being a friend can make a major positive impact in someone’s life, and serving as a guide to the community can be incredibly helpful.

  3. Use your job to make a difference

    No matter what you do for a living, there’s a good chance that your professional skills can be used to improve the lives of others. 

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    Photo courtesy of UNHCR

    KJ

June 20, 2020 | Permalink | Comments (0)

Friday, June 19, 2020

DACA Victory at Supreme Court Is Precarious at Best

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Ediberto Roman, Carrie Rosenbaum and Geoffrey Hoffman in commentary in Newsweek call for caution in the wake of the Supreme Court's decision yesterday:

"Yesterday, the Supreme Court rejected President Trump's plan to shut down the Deferred Action for Childhood Arrivals (DACA) program, which allowed some 800,000 DREAM-ers avoid deportation.  While the decision is a blow to President Donald Trump, it is far from a permanent victory for DREAM-ers. Nothing short of legislative action will protect these young Americans." (bold added).

The trio undoubtedly are correct.  Congress very much needs to return in earnest to work on some kind of comprehensive immigration reform.  Decades of immigration debates have failed to bear fruit.  The noncitizens who remain in limbo are not only young DACA recipients but millions more undocumented immigrants, many of whom have lived in the United States for years. 

Only time will tell what impact the DACA saga will have on the politics of immigration and the trajectory of immigration reform  But what does seem certain is that the political activism that DACA tapped into over the last eight years is not going away anytime soon. 

KJ

June 19, 2020 in Current Affairs | Permalink | Comments (0)