Friday, July 31, 2020
The Fight is a documentary following 4 lawsuits pursed by the ACLU. In terms of immigration, the documentary covers the fight against the Muslim ban as well as the fight against family separation, the right of a detained teenager to obtain an abortion, and the fight to remove the citizenship question from the census. In the non-immigration corner, the film follows the fight against President Trump's ban of trans individuals from serving in the military.
This write-up from WaPo explains how these different threads come together:
Gracefully toggling between these disparate but related cases, “The Fight” portrays its protagonists as superheroic Davids doing battle with a looming, largely unseen Goliath. Afforded unprecedented access to the ACLU’s offices and inner workings, the filmmakers have created a portrait of idealism and hard work that might be mistaken for a promo piece for the organization’s 100-year anniversary, which it’s celebrating this year. Still, directors Elyse Steinberg, Josh Kriegman and Eli B. Despres (who made the equally engrossing 2016 documentary “Weiner”) have found real-life characters who are every bit as pluralistic and paradoxical as the American citizens they represent. What’s more, they are on the scene when the ACLU decides to advocate for the white supremacists marching in Charlottesville in 2017, a move that’s met with outraged dissent within the ranks.
There are a lot of familiar faces -- Lee Gelernt features prominently, as you'd imagine.
On the Bookshelves: After the Last Border: Two Families and the Story of Refuge in America by Jessica Goudeau
After the Last Border: Two Families and the Story of Refuge in America by Jessica Goudeau (available August 4)
The story of two refugee families and their hope and resilience as they fight to survive and belong in America
The welcoming and acceptance of immigrants and refugees has been central to America's identity for centuries--yet America has periodically turned its back at the times of greatest humanitarian need. After the Last Border is an intimate look at the lives of two women as they struggle for the twenty-first century American dream, having won the "golden ticket" to settle as refugees in Austin, Texas. Mu Naw, a Christian from Myanmar struggling to put down roots with her family, was accepted after decades in a refugee camp at a time when America was at its most open to displaced families; and Hasna, a Muslim from Syria, agrees to relocate as a last resort for the safety of her family--only to be cruelly separated from her children by a sudden ban on refugees from Muslim countries. Writer and activist Jessica Goudeau tracks the human impacts of America's ever-shifting refugee policy as both women narrowly escape from their home countries and begin the arduous but lifesaving process of resettling in Austin, Texas--a city that would show them the best and worst of what America has to offer. After the Last Border situates a dramatic, character-driven story within a larger history--the evolution of modern refugee resettlement in the United States, beginning with World War II and ending with current closed-door policies--revealing not just how America's changing attitudes toward refugees has influenced policies and laws, but also the profound effect on human lives.
Jessica Goudeau has written for The Atlantic, The Washington Post, Los Angeles Times, Teen Vogue, among other places, and is a former columnist for Catapult. She has a Ph.D. in literature from the University of Texas and served as a Mellon Writing Fellow and Interim Writing Center Director at Southwestern University. Goudeau has spent more than a decade working with refugees in Austin, Texas and is the cofounder of Hill Tribers, a nonprofit that provided supplemental income for Burmese refugee artisans for seven years.
Migration Policy Institute -- Dismantling and Reconstructing the U.S. Immigration System: A Catalog of Changes under the Trump Presidency
In the fourth year of an administration that has placed immigration at the center of its policy agenda in a way no prior White House has done, a new Migration Policy Institute (MPI) report catalogs the more than 400 executive actions that have been taken since President Donald Trump assumed office in January 2017.
The report, Dismantling and Reconstructing the U.S. Immigration System: A Catalog of Changes under the Trump Presidency, chronicles these immigration-related actions, including 63 advanced as responses to the COVID-19 pandemic, and previews another three dozen anticipated changes.
From the original travel ban for visitors from Muslim-majority countries to termination of the Deferred Action for Childhood Arrivals (DACA) policy, overlapping policies narrowing asylum at the U.S.-Mexico border, curbs on legal immigration and access to benefits, deployment of active-duty military to the border, changed interior enforcement policies and reshaping of the immigration courts, the report describes each action in brief, by date and with reference back to the original source.
The developments are organized by topic:
- Immigration enforcement at the border and in the U.S. interior
- Asylum and refugee systems and other humanitarian programs
- Justice Department actions, including in the immigration courts
- Changes to vetting and visa processes at the State Department, U.S. Citizenship and Immigration Services and the Labor Department
- Pandemic response
Because the Trump administration has reshaped nearly every corner of the U.S. immigration system via executive action, policy guidance and regulatory changes, the policies and practices could be undone by a successor administration. Yet the authors note that the disciplined, “rapid-fire” pace of the campaign to redirect immigration policy could guarantee some longevity to the administration’s approach.
By Sydney France
The US Attorney General has the power in immigration proceedings to take cases from the Board of Immigration Appeals and issue a final ruling himself. This process of certification is controversial. The Immprof blog has discussed this power here and here.
Politico reports that Attorney General Barr is reopening the case of an asylee, granted asylum almost 15 years ago. It involves the killing of the Bangladesh president, a decades-old death sentence for the Bangladeshi military officer Rashed Chowdhury, and a hard-fought battle for asylum pitting this former Bangladeshi military officer against the U.S. Department of Homeland Security. In 2006, the BIA affirmed the Immigration Judge’s ruling that the applicant deserved asylum. In June, 2020, Barr directed the BIA to send the case to him. It is unclear why AG Barr reopened the case after so many years, but it appears to be motivated by a political favor to the Bangledeshi government after years of lobbying for Chowdhury's extradition. This is a controversial use of the certification power, and a sign that in asylum cases, “nothing can truly be final.”
“Immigration lawyers say the move sends a chilling message to people who have received asylum in the U.S. It signals, they argue, that even after years of successful legal battles, any protection could still be revoked out of the blue,” says Jeremy McKinney, the first vice president of the American Immigration Lawyers Association.
Sydney France is a student at the University of Colorado Law School (Class of 2021).
and for the Washington Post report the following:
Sharvari Dalal-Dheini & Royce Bernstein Murray on The Hill, "former U.S. Citizenship and Immigration Services (USCIS) employees, civil servants with a combined 18 years of experience under the Bush, Obama, and Trump administrations," offer thoughts on the upcoming furlough of USCIS employees. They critically analyze how USCIS has arrived to a place with furloughs on the horizon. Here is the conclusion:
"The story of immigration to the United States is ultimately one of human potential — the desire to work hard, support one's family, and contribute to the future of our powerful nation. We cannot allow the government agency tasked with welcoming newcomers to be stopped in its tracks. USCIS and its thousands of employees must be enabled to continue the important work they do each and every day. With funding and accountability from Congress, this vision is possible."
In the two years since the Supreme Court decided Trump v. Hawaii, federal district courts have adjudicated dozens of rights-based challenges to executive action in immigration law. Plaintiffs, including U.S. citizens, civil rights organizations, and immigrants themselves, have alleged violations of the First Amendment and the equal protection component of the Due Process Clause with some regularity based on the President’s discriminatory rhetoric. This Essay, written for a symposium on "The Presidency and Individual Rights," assesses Hawaii’s impact on these challenges to immigration policy. It offers two observations.
First, Hawaii has prompted some courts to privilege administrative law claims over constitutional ones. For example, courts considering separate challenges to the travel ban waiver process and the mass-rescission of humanitarian parole have concluded that plaintiffs have not stated constitutional claims under Hawaii’s “circumscribed inquiry,” but these courts remain receptive to plaintiffs’ claims that an agency violated its obligation to provide a reasoned justification, consider reliance interests, explain itself sufficiently, or follow its own procedures. Similarly, the Supreme Court recently held that the Trump Administration's rescission of DACA was arbitrary and capricious, but it concluded that plaintiffs had not adequately pled an equal protection claim. Second, Hawaii has prompted district courts to engage more deeply with the notion that different classes of immigrants are entitled to different levels of constitutional protection. This more open discussion of the contours of immigrants’ substantive rights is a welcome development but ultimately exposes the limits of a rights-based approach to protecting immigrants’ well-being.
Thursday, July 30, 2020
A Safe Place to Land by Sara Bareilles (and featuring John Legend) is a great accompaniment to your class on asylum or refugees. So many great lines but I like this verse:
Oh, imagine yourself in a building
Up in flames being told to stand still
The window's wide open
This is leap is on faith
You don't know who will catch you
Maybe somebody will
How to incorporate engaging remote activities is something we are all seeking this fall.
One terrific teaching tool worth calling attention to is the “Learning Legal Interviewing and Language Access Film Project” (“Learning”) by Professor Lindsay Harris of UDC David A. Clarke School of Law and Professor Laila Hlass of Tulane University School of Law.
“Learning” is a set of two dramatized videos for use in experiential education settings. One features clinical students interviewing a teenage asylum seeker and the second features a student interview of a U visa applicant. The videos work with any class teaching interviewing skills, but especially well in immigration law related courses. I have used the films in my class and they raise a range of important issues, including building rapport with clients, trauma-informed lawyering, working with an interpreter, and much, much more. The films could be provided as asynchronous course content to discuss later as a class, or included during an online session.
More information and a link to the videos is available here.
A federal judge for the U.S. District Court of Massachusetts issued a preliminary injunction Friday ordering that the Department of Education could not deny funding authorized by the Coronavirus Aid, Relief, and Economic Security (CARES) Act to a Bunker Hill Community College student based on her immigration status. The student, Farah Noerand, came to the U.S. from Haiti following an earthquake in 2010 and holds temporary protected status in the U.S. Sorokin found that the "CARES Act unambiguously authorized the provision of funds … to students without regard to their immigration status, i.e., without regard to whether the student is eligible for Title IV financial aid, and rejects the Department’s contention that the statute is ambiguous on this point." According to Inside Higher Ed injunction applies only to Noerand, but the judge indicated he is considering expanding it. The judge gave the department until July 31 -- subsequently extended until Aug. 7 -- to submit a brief arguing why the scope of the preliminary injunction should not be expanded.
Angela Morabito, a spokeswoman for the Department of Education, referenced a separate ruling by a federal judge in Washington State in a similar case that found in the department's favor. "A federal court in the State of Washington agrees with the Department on this issue," she said. "We expect to prevail on appeal in this case."
The ruling comes at the same time that Congress is debating whether to include immigrants in other COVID relief funding.
ImmigrationProf bloggers (here, here, here, for example) have frequently updated our readers on developments in the enforcement of the 1997 settlement in the Flores litigation. The settlement has played a big role in efforts to challenge the Trump administration's various detention and related policies affecting minors. The settlement of that case continues to set national standards for the detention, release, and treatment of immigrant children in federal custody.
Courthouse News reports on recent drama in the Flores litigation that involves challenges to class counsel, not challenges to the policies of the U.S. government.
U.S. District Judge Dolly Gee denied a motion from nonprofit legal service providers to intervene in the Flores case. Class members represented by the People’s Justice Center and Refugee and Immigrant Center for Education and Legal Services, sought to intervene in the case. They claimed that the interests of the proposed intervenors were not being “adequately represented and irretrievably at odds with the inexplicable objective of class counsel” regarding an aim to develop a protocol that would waive a class member’s right to be released. The group added that the worsening conditions at immigration facilities justified their motion to intervene.
Judge Gee denied the motion to intervene. “Given the history of this litigation and the remarkable results of Class Counsel’s advocacy from the inception of this action 35 years ago through the onset of the pandemic, the Court finds that Class Counsel have provided more than adequate representation and that Proposed Plaintiff Intervenors’ interests will not be impaired by denying their application to intervene as of right at this time,” Gee wrote.
This is no real surprise but PBS ran a news story by Candice Norwood about the Trump administration's use of the pandemic as a rationale for drastically reducing legal immigration:
"As the nation continues to grapple with a pandemic and a growing movement for racial justice and police reform, President Donald Trump’s administration has been implementing new immigration policies blocking many legal pathways to enter the country.
Since March, nearly 20 policy changes have affected potential tourists, refugees, asylum seekers, foreign workers and international students. The administration says the measures are meant to maintain public health by significantly restricting border crossings, as well as reserve jobs for American workers during the economic crisis by suspending visas for international workers."
The report lists the many steps taken by the Trump administration that reduce legal immigration.
Immigration Article of the Day: Milking Outdated Laws: Alt-labor as a Litigation Catalyst by Kati L. Griffith and Leslie Gate
Even though alt-labor does not have significant labor market power when compared to labor unions, its impacts are manifold. Alt-labor has given rise to novel state and local legislation improving wages and working conditions for low-wage workers across the country. It has fostered new collaborations with government enforcement agencies to improve the implementation of rights on the books — to “make rights real.” It has promoted new bargaining and worker organizing strategies, outside of traditional models. This article highlights another achievement of alt-labor. Alt-labor has served as a catalyst for creative litigation efforts that argue for application of existing workplace protections to non-traditional populations of workers and their organizing efforts. In this way, it has pushed to reinterpret, and thus to revitalize, what many perceive to be outdated labor and employment laws. We focus on initiatives that re-imagine the interpretation of these laws in light of new organizing strategies and new global economic realities, all the while staying true to the existing laws on the books. Along with raising questions, and proposing new interpretations of New Deal and civil rights era gains, sometimes alt-labor’s litigation efforts are successful and lead to case law “wins.” To build its approach, the article draws from literature on litigation as a social movement strategy and provides an in-depth analysis of the ways courageous dairy workers in upstate New York have inspired innovative litigation theories and successes. Alt-labor’s achievements as a litigation catalyst are laudable — given the challenge of enacting federal legislation to address income inequality and the decline of labor union power — in the current era.
Wednesday, July 29, 2020
Suzanne Monyak for Law360 reports that U.S. District Judge George Daniels (S.D.N.Y) just minutes ago enjoined the Trump administration from implementing the proposed public charge rule, which allows the U.S. government to deny green cards to those found likely to need public benefits. The court ruled that the plaintiffs had provided "ample evidence" that new rule deters immigrants from seeking out COVID-19 testing and could threaten efforts to curb the spread of the disease.
"[A] Manhattan federal court issued two nationwide injunctions temporarily blocking the Trump administration’s “public charge” rules. An injunction issued against the U.S. Department of Homeland Security (DHS) prevents DHS from enforcing, applying, implementing, or treating as effective the “public charge” rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak. The ruling came after immigrant rights attorneys successfully argued that the COVID-19 pandemic has made the DHS public charge rule lethal to immigrant communities by chilling the use of health care and other benefits. The court also enjoined the U.S. State Department from applying its parallel “public charge” rules, including the president’s Health Care Proclamation, to applicants for visas at U.S. embassies and consulates abroad."
Want to dramatically reduce legal immigration? One way is to defund U.S. Citizenship and Immigration Services, which processes the paperwork of legal immigrants. Researchers for the Migration Policy Institute explain how the Trump administration may be doing exacting that in this report.
Guest Post: The Supreme Court’s DACA Decision Did Not Authorize an Authoritarian Power Grab by Carrie Rosenbaum and Geoffrey Hoffman
The administration appears to be seeking legal cover for sending militarized Customs and Border Protection agents to Democratic leaning cities, where local governments say they are not welcome, and not needed. In addition, the president seems to be inquiring about how far he can push the power of the president. John Yoo reportedly told the White House that the Supreme Court’s recent DACA decision gave the president the authority to essentially to rule as an authoritarian and make law on health care, tax policy, criminal justice and inner-city policy. Yoo’s advice is wrong, for 6 reasons. Nothing in the Constitution or federal law authorizes the president to subvert Congress and single-handedly rule the country.
The Supreme Court’s June 18, 2020 decision invalidated Trump’s attempted rescission of Deferred Action for Childhood Arrivals (DACA) on a narrow, procedural ground, as we wrote about on June 17, 2020. The Court found that the administration had not followed proper federal law, specifically, Administrative Procedure Act (APA) rules in rescinding the program. The effect of the decision as a lower district court recently held, was to allow the DACA program to be reinstated as it existed pre-September 2017.
The Supreme Court’s ruling does not do what Yoo suggests it did for the following reasons:
The Supreme Court’s decision does not purport to address the "soundness" of the underlying DACA program. In other words, the Supreme Court did not find that the Obama Administration’s DACA policy was either an authorized use of executive authority under Immigration and Nationality Act (INA) or otherwise. Nor did it resolve any Constitutional issues as was made apparent by Chief Justice’s rejection of plaintiffs’ equal protection claim, over the staunch objections of Justice Sotomayor.
The Supreme Court’s DACA ruling solely concerned APA procedural compliance issues concerning the Trump administration’s DACA rescission. The decision did not address nor authorize the president to rescind any other law or policy in any other context. It was not a vast authorization of executive authority, as alleged by Yoo.
A president’s use of "executive orders" was not the subject of the DACA decision at all because former President Obama did not use an executive order to create DACA in the first place. The DACA decision did not require an executive order, but it was also incredibly narrow and specific to immigration law prosecutorial discretion. DACA was a policy change determining the amount and type of federal immigration law prosecutorial discretion the administration would exercise in deciding which groups of undocumented immigrants to focus limited federal immigration enforcement money on targeting for removal.
To date, the executive orders which have been upheld by courts have related to external policies within the “exceptional” realm of the federal government to make law in the context of immigration law, and specifically with respect to exclusion and deportation, or preventing people from entering the United States, and to a lesser extent, deporting people. The Travel ban, restricting entry to the U.S. by persons of specific Muslim majority countries was recently upheld on the basis of INA sec. 212(f), though scholars have argued that the Court’s decision was contrary to law.
The plenary power doctrine is the unwritten law or principle, not within the Constitution, nor federal statute, that the Court has invoked over the years when seeking to exclude particular groups en masse, like Chinese immigrants, or to intern or imprison groups, like Japanese internment. That authority has been expressly limited to immigration law and there is no basis to expand it beyond immigration law. Even then, it has been justified on the basis of national security and sovereignty, but it has also been acknowledged that such justifications have been a shield for racism and otherwise lacked a genuine national security concern or threat.
An executive order may not conflict with a pre-existing federal statute and is subject to Constitutional constraints. What the Trump administration has allegedly been advised may be authorized pursuant to executive authority would almost certainly be invalidated as in conflict with existing federal law, or Constitutional requirements.
Finally, the use of executive orders as an end-run around states' rights and local control would be seen for what it is, usurpation under 10th Amendment. The 10th Amendment gives the states and localities all powers not specified as within the authority of the federal government, including police powers.
Ultimately, the Trump administration may be intent on subverting the Constitution and federal law and doing whatever the president likes, knowing full well that the courts may eventually deem his acts unlawful. In the meantime, it is important to recognize that the Supreme Court’s DACA decision, and the Trump v. Hawaii decision, did not give the president free reign to rule domestically as he sees fit, usurping the role of Congress, the states and federal law. While some may argue he has more power, for now, in the realm of immigration law and foreign matters than he did before the Trump v. Hawaii travel ban case, no law, including INA 212(f), authorizes him to subvert the letter and spirit of the supreme law of the land, the U.S. Constitution. As long as we are a Democratic republic, it does not countenance an authoritarian power grab of the kind suggested by Yoo.
*Geoffrey Hoffman is a Clinical Professor of Law at the University of Houston Law Center and Carrie Rosenbaum is a Lecturer & Visiting Scholar, University of California-Berkeley (both individual capacity; institutions listed for identification only).
A Sign of the Times: "Want To Escape From America? 12 Countries Where You Can Buy Citizenship (And A Second Passport"
Laura Begley Bloom for Forbes ("Want To Escape From America? 12 Countries Where You Can Buy Citizenship (And A Second Passport") reports that "with the coronavirus pandemic restricting travel for U.S. citizens and the power of the US passport on the decline, it’s no surprise that many Americans are investigating how they can buy a second passport, whether it’s to seek shelter in another country or just to be able to travel more freely."
Bloom identifies "some of the best places where you can buy citizenship . . . ." Here are the 12 nations on her list:
1. St. Kitts & Nevis
2. St. Lucia
3. Antigua and Barbuda
11. New Zealand
12. Vanuatu, a "country in the southwestern Pacific Ocean, consisting of a chain of 13 principal and many smaller islands located about 500 miles (800 km) west of Fiji and 1,100 miles (1,770 km) east of Australia."
Click the link above to read details on the rules for securing citizenship in each of these nations.
As increasing numbers of immigrants face deportation, a major asymmetry in existing immigration procedures requires attention. Individuals who are deported from the United States and attempt to reenter are afforded an opportunity to prove their fears of return to their home countries, whereas those with prior deportation orders who have remained in the United States are not. This difference is based on the false premise that the latter have already had their day in court and do not need an additional layer of screening. This article fills a critical gap in the existing scholarship, which has thus far failed to focus on the asymmetrical application of reasonable fear screening procedures. It proposes a novel solution: adoption of a uniform pre-removal risk screening process to safeguard all immigrants from return to serious harm, torture, or even death. This approach would ensure that the United States fulfills its obligations under domestic and international law to protect refugees and provides all immigrants with due process and a meaningful opportunity to be heard. Other countries already engage in such universal pre-removal risk screenings, and the United States has an obligation to do the same.
Tuesday, July 28, 2020
CALL FOR PAPERS
“New Voices in Immigration Law”
Association of American Law Schools · Section on Immigration Law
January 5-9, 2021 · Online
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 2021 AALS conference, which will take place January 5-9, 2021 online. 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).
CALL FOR PAPERS
“Outsourced Borders and Invisible Walls”
Association of American Law Schools · Section on Immigration Law
January 5-9, 2021· Online
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, which will take place January 5-9, 2021 online. 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).