Wednesday, September 30, 2020
Just Futures Law and Mijente are excited to welcome the very first cohort of Take Back Tech Fellows! The Take Back Tech Fellowship (TBTF) program is aimed at energizing organizing and policy campaigns against intrusive technology surveillance programs that disproportionately impact Black and Brown people, including immigrant communities.
The 2020-2021 cohort - made up of activists, advocates, technologists, law students and academic clinics - is impressive. Immigration law professors from University of Washington (Jennifer Koh), Minnesota (Linus Chan), Boston University (Sarah Sherman-Stokes), Villanova (Caitlin Barry, Frances Kreimer, Tania Valdez), and University of Chicago (Nicole Hallett) are participating. Edyael Casaperalta, Colorado Law school alumna and my former research assistant for the Immigration and Citizenship law program, is also a fellow. Congratulations!
Immigration Article of the Day: Undocumented Activism and Minor Politics: Inside the Cramped Political Spaces of Deportation Defense Campaigns by Austin Kocher and Angela Stusse
Undocumented Activism and Minor Politics: Inside the Cramped Political Spaces of Deportation Defense Campaigns by Austin Kocher and Angela Stusse, Antipode, 2020.
Abstract: Undocumented activism is on the rise. In response to the expansion of immigrant policing, detention, and deportation, immigrant rights organizers have increasingly deployed a longstanding approach to anti-deportation activism called “deportation defense campaigns” (DDCs). DDCs seek to disrupt the deportation regime by preventing or delaying individual deportations and providing immigrants a path to temporary or permanent legalization on a case-by-case basis. Yet in the process, campaigns must address questions about when and how to challenge dominant discourses and institutions while also achieving short-term goals. We examine DDCs through Deleuze and Guattari’s notion of the “minor” to examine how campaigns navigate difficult decisions about when and how to employ tactics that are typically characterized as either disruptive or conformist. Indeed, we argue that disruption and conformism should be understood not as a static evaluative framework, but as strategies that condition, and are conditioned by, the contexts in which undocumented activism unfolds. Using ethnographic methods, we examine two DDCs to show how the campaigns strategically navigated the cramped political spaces of undocumented organizing in the months following the new Trump administration’s surge of anti-immigrant policies. We find that DDCs simultaneously draw upon and subvert dominant forms of citizenship and belonging in order to pressure ICE to exercise legal discretion and stop deportation. We conclude that DDCs unfold under historically and geographically specific conditions that not only shape what counts as disruptive and conformist, but may call into question any easy division between the two altogether.
On October 13th, the comment period closes for a proposed rule by the Department of Homeland Security (DHS) that would radically change the collection and use of “biometrics” by U.S. Citizenship and Immigration Services (USCIS). This sweeping proposal would allow DHS to collect extremely personal data like DNA, increase the burden on an already strained USCIS adjudication system, and transform the application process for victims of domestic violence and human trafficking. So far only 262 comments have been submitted in response to this rule, as compared to the over 14,000 comments submitted in response to the proposal to impose fixed end dates on student visas.
Changes to “Biometrics”
DHS proposes to define the term “biometrics” to include a much wider information than the fingerprints, signatures, and photographs typically collected under the current system. If finalized, the rule would allow DHS to start collecting palm prints, iris scans and DNA samples in addition to the current information. When collected, an individual's DNA would then be either tested locally by an automated Rapid DNA machine or mailed to a traditional AABB-accredited laboratory for testing. As the Department explicitly acknowledges, “DHS does not know what the costs of expanding biometrics collection to the DHS in terms of assets and equipment; it is possible that costs could be incurred for the new equipment and information technologies and typologies needed to collect, process, store, and utilize biometrics, including software updates; cameras that are able to collect iris and facial images; devices used to record a voice print; and other equipment.” Nevertheless, DHS fails to recognize the practical challenges this rule would create for an agency already subject to furloughs and aggressive spending reduction measures.
Changes to the frequency of collection
The burden on USCIS would grow even larger when compounded with the proposed increases in the frequency of “biometrics” collection. The rule proposes to “flip the current construct from one where biometrics may be collected based on past practices, regulations, or the form instructions for a particular benefit, to a system under which biometrics are required for any immigration benefit request unless DHS determines that biometrics are unnecessary.” Even more egregious, the proposed rule would allow DHS to require individuals to submit additional biometric information “unless and until they are granted U.S. citizenship.” However, that does not mean U.S. citizens are exempt from the new, expansive biometric submission requirements if they previously filed an application which “is relevant to an application, petition, or benefit request currently pending with USCIS.” The rule also proposes to remove all age limitations or restrictions on the collection of information. If an applicant or beneficiary were to miss a scheduled interview at which biometrics were to be taken, they could face immediate termination of their permanent resident status. Aggressively requiring individuals to submit to invasive information collection throughout their lives can create serious burdens for immigrant communities and deter the filing of immigration benefit applications.
Changes to VAWA and T-Visas
Throughout the proposed rule, DHS claims the authority to institute changes based on the need to eliminate fraud in the immigration benefit system without providing any quantifiable benefits to that effect. Rather than attempting to reduce fraud, the proposed rule seems designed to intimidate applicants from applying and increase the burden if they decide to do so. This invidious motivation can be seen more clearly in the proposed rule's seemingly random attempt to change the framework for assessing the Good Moral Character of VAWA and T-visa applicants. Instead of presumptions and letters from respected law enforcement officers, these petitioners would be subject to DNA collection and associated background checks in a determination of their Good Moral Character. These changes are particularly troubling because the VAWA and T-visa programs are designed for victims of domestic violence and “severe forms of human trafficking,” who may have criminal records that they incurred while trapped in cycles of abuse and exploitation.
Comments can be submitted through the Federal Register portal until October 13th. Please make your voice heard regarding this important issue.
Hunter Knapp is a postdoctoral fellow at the University of Colorado Law School.
Immigration Revelation, a 13-episode podcast hosted by immigration attorney siblings, Fiona McEntee and Raymond McEntee, and immigration advocate, Carolina Solano, debuts today on all major podcast platforms and on ImmigrationRevelation.co. Each episode features candid conversations with immigrants whose origins and experiences span the globe.
"Immigration Revelation aims to amplify the inspirational voices of a diverse group of immigrants. As an immigration attorney, I'm so honored to have a front-row seat to these incredible stories and I am humbled that they are being shared with the world by the amazing immigrants themselves," says Fiona McEntee, creator, co-host, and executive producer of Immigration Revelation.
The debut episode features Belén Sisa, immigration activist and former National Latino Press Secretary for Bernie Sanders For President. Belén, a Deferred Action for Childhood Arrivals (DACA) program recipient who is originally from Argentina, was thrust into the national media spotlight in March 2017 when she challenged the myth that undocumented immigrants do not pay income tax by posting her tax return in an online video.
Future guests include Elliot Collier (Chicago Fire Football Club, New Zealand), Mert Hilmi Iseri (SwipeSense Co-Founder & CEO, Turkey), Jennifer Muldowney (also known as The Glam Reaper, Ireland) and Maeve Higgins (comedian, actress, writer, podcaster, Ireland).
"The world is living a very important moment," says co-host and executive producer Carolina Solano. "One that is seeing a collective shift in how we perceive social issues around us and what it means to be an immigrant in this time. As advocates, we have a privileged opportunity to magnify the voices in our communities and ensure those are the voices carrying the narratives around their stories."
Ray McEntee co-host of the show tells us that "Immigration Revelation shines a bright light on some amazing immigrants. It's such a joy to be surrounded by these incredible stories on a daily basis and now, you get to hear them too!"
Immigration Revelation reminds us that immigration is not just a system, or law, or policy. It is a human experience. Each one is as unique and deserving as the next.
Recognizing the current moment in time, Fiona says, "With the election looming, our show aims to refocus the narrative around immigration and center humanity into these conversations."
Immigration Revelation is available for download through major streaming services and at ImmigrationRevelation.co.
A timely and groundbreaking argument that all Americans must grapple with Latinos’ dynamic racial identity—because it impacts everything we think we know about race in America
Latinos have long influenced everything from electoral politics to popular culture, yet many people instinctively regard them as recent immigrants rather than a longstanding racial group. In Inventing Latinos, Laura Gómez, a leading expert on race, law, and society, illuminates the fascinating race-making, unmaking, and re-making of Latino identity that has spanned centuries, leaving a permanent imprint on how race operates in the United States today.
Pulling back the lens as the country approaches an unprecedented demographic shift (Latinos will comprise a third of the American population in a matter of decades), Gómez also reveals the nefarious roles the United States has played in Latin America—from military interventions and economic exploitation to political interference—that, taken together, have destabilized national economies to send migrants northward over the course of more than a century. It’s no coincidence that the vast majority of Latinos migrate from the places most impacted by this nation’s dirty deeds, leading Gómez to a bold call for reparations.
In this audacious effort to reframe the often-confused and misrepresented discourse over the Latinx generation, Gómez provides essential context for today’s most pressing political and public debates—representation, voice, interpretation, and power—giving all of us a brilliant framework to engage cultural controversies, elections, current events, and more.
UPCOMING EVENTS IN DUKE LAW’S IMMIGRATION SPEAKER SERIES
October 7, 2020 at 12:30 pm EST
The Role of Local Elections in Shaping Immigration Policy
Moderator: Gunther Peck, Sanford School of Public Policy
Speakers: Stefania Arteaga (Statewide Immigrants’ Rights Organizer at the ACLU of North Carolina); Spencer Bloom (Civic Engagement Organizer at El Pueblo (Raleigh)
While immigration law is federal, the policies enacted by local elected officials can shape immigration enforcement measures and efforts to include and support immigrants and refugees. Please join us for a panel discussion with Spencer Bloom, Civic Engagement Organizer at El Pueblo in Raleigh, and Stefania Arteaga, Immigrants’ Rights Organizer at ACLU of North Carolina and the co-founder of both Comunidad Colectiva, a grassroots immigrant rights organization in Mecklenburg County, and the Carolina Migrant Network, which provides free legal representation in immigration bond proceedings to individuals in North Carolina whom ICE has detained. Both Comunidad Colectiva and Stefania are featured on the Netflix series Immigration Nation, which aired on August 3rd, 2020. The speakers will address the advances achieved through local elections in the past and the stakes involved in the upcoming local elections this fall.
October 20, 2020 at 12:30 pm EST
Immigration in the 2020 Election
Speaker: Gregory Chen, Director of Government Relations for the American Immigration Lawyers Association (AILA)
Join us as we learn about the role of immigration policy in the 2020 Presidential Election. Greg Chen, Director of Government Relations for the American Immigration Lawyers Association (AILA), will discuss how the president shapes immigration policy separately and in conjunction with Congress and how immigration issues have influenced the 2016 and 2020 presidential campaigns. We will discuss the major policy initiatives of both the Trump and Obama administrations, as well as the prospects for immigration reform following the election.
November 10, 2020 at 12:30 pm EST
Pursuing Immigration Pro Bono Opportunities in Private Practice
Moderator: Stella Boswell (Assistant Dean of Public Interest and Pro Bono)
Speakers: Jennifer Grishkin (Pro Bono Coordinating Attorney at CAIR Coalition) and Steven H. Schulman (Pro Bono Partner at Akin Gump Strauss Hauer & Feld LLP).
Will you be at a law firm at some point in your career? Going into private practice does not have to mean turning your back on issues and communities that need your help! In fact, many non-profits rely on pro bono attorneys at law firms to help them reach as many people as possible. Immigration is one of the best fields to get involved with as a pro bono attorney. Please join us in a conversation with two people working with immigration pro bono cases and hear their thoughts on the importance of getting involved with immigration pro bono opportunities in private practice and they best way to do that as a young attorney.
"The Trump administration is preparing a series of immigration enforcement operations targeting illegal immigrants in at least three sanctuary jurisdictions, a source familiar with the operations told Fox News Tuesday. The Immigration and Customs Enforcement (ICE) operations will be in California, Denver and Philadelphia, and could potentially include other cities and jurisdictions across the country.
The Washington Post first reported about the operations, which could take place as soon as this week in California. Acting Homeland Security Secretary Chad Wolf may travel to at least one of the areas, it said.
`We do not comment on any law enforcement sensitive issues that may adversely impact our officers and the public,” an ICE spokesperson said in a statement. “However, every day as part of routine operations, U.S. Immigration and Customs Enforcement (ICE) targets and arrests criminal aliens and other individuals who have violated our nation’s immigration laws.'”
Elliott Hannon for Slate sees the immigration raids as part of the Trump/Pence re-election campaign.
Tuesday, September 29, 2020
Days before they were to go into effect, a federal court in the Northern District of California issued a national injunction blocking a dramatic fee hike for appliations for naturalized citizenship, permanent residency, asylum, and access to other immigration benefits. The new fees would have made immigration benefits unattainable for many. It would have nearly doubled citizenship from $640 to $1,170; increased lawful permanent residency and related application fees from $1,125 to $2,270; and added a $50 fee for asylum applications (the first time a fee has been assessed for asylum applications). The rule would have also eliminated most fee waivers for immigrants who cannot afford to pay the fees.
Judge Jeffrey White ruled that the nonprofit organizations that had challenged the fee increases would be likely to prevail in showing that Wolf's appointment as Acting Director of the U.S. Department of Homeland Security, without Senate confirmation, violated the rules of succession. As a result, the fees ordered under his stewardship cannot take effect while the litigation progresses. Similar reasoning had been used in a separate lawsuit regarding Ken Cucinelli and his asylum directives.
Tonight marked the first presidential debate between President Trump and Vice President Biden. Many experts had predicted that immigration would be central in any presidential debate. To be sure, where the candidates stand on immigration issues has been a topic of considerable public concern. Although immigration has been an important issue over the course of the Trump presidency, the moderator did not pose any questions during the debate on crucial topics of federal immigration policy such as detention and deportation. Across the name calling in the chaotic debate, President Trump refused to categorically denounce white supremacy. He also repeatedly blamed China for the COVID-19 pandemic, referring to it as the "China Plauge." Any future debates should engage seriously in the crucial immigration issues at stake in the election, including legalization, the growing immigration court backlog, and border enforcement.
Gallup's latest polling information reveals a world that has been growing less accepting of migrants.
Here are some of the nations with the largest declines in their acceptance of migrants. Gallup notes that many of the nations with the largest declines have been affected by the mass exodus of Venezuelans.
Happily, not every nation registered a decline in their attitudes towards migrants. Some countries' acceptance of migrants grew:
Also - here's some exciting news. The United States doesn't show up in the top 10 least accepting countries. We're actually the 6th most accepting country! Someone should clue our government into that stat.
Suzanne Monyak at Law360 offers this prediction of what immigrationprofs should expect if the Seventh Circuit judge is elevated to the Supreme Court: "U.S. Supreme Court nominee Amy Coney Barrett's tendency to defer to the executive branch's authority could pave the way for the Trump administration to prevail against challenges to its immigration policies."
Her reasoning is that, while Judge Barrett's record on immigration is mixed (as reported in prior ImmigrationProf blog posts), she has demonstrated "a clear preference for interpreting laws based on their strict textual meaning. And when the text is unclear, she tends to rely on the federal government's own interpretation." This textualist approach could result in narrow adherence to the federal immigration statute, an approach that is often relied on to support restrictionist immigration policies.
"In the immigration space, an expansive view of executive power can translate, frankly, into a blank check to the president about who can immigrate to the U.S.," said Bradley Jenkins, federal litigation attorney at the Catholic Legal Immigration Network Inc.
The Law360 in-depth analysis draws on perspectives from Immprof Blog co-editor Dean Kevin Johnson, Professor Stephen Yale-Loehr, and Professor Jennifer Koh and delves into Judge Barrett's decisions in the public charge case and the consular nonreviewability case. It is one of the most substantive analyses I've seen in this genre since Barrett's nomination.
Today, two systems exist for addressing the humanitarian claims of persons fleeing persecution. One system consists of refugees living in host countries, often in large camps, who ideally are then resettled in other countries or repatriated when it is safe to do so. The other system involves refugees arriving in a country and seeking asylum—a right with ancient religious roots. The first “encampment model” is fundamentally broken, as most refugees are housed in the developing or least developed world in terrible conditions for extended periods of time, with little or no realistic hope of resettlement elsewhere or repatriation. The developed world, which takes in only a tiny percentage of refugees worldwide, has tacitly acquiesced to this humanitarian catastrophe occurring outside its borders. Yet it has been forced in recent years to confront the worldwide refugee crisis as the number of persons traveling to wealthy countries to seek asylum has increased. Rather than respond with policies that address the roots of refugee flows, many developed nations have pursued a variety of strategies to interdict and otherwise distance asylum seekers.
Refugee distancing is a way to import the encampment model into the asylum systems of the developed world. This blurring of the lines between encampment and asylum is strikingly clear, for example, in the tent cities that have cropped up along the U.S.–Mexico border under the Trump Administration’s “Migrant Protection Protocol” (MPP), which requires asylum seekers to wait in Mexico while their claims are adjudicated. The overreaching impact of such policies is to dismantle the normative force of asylum by creating physical, psychological, and legal distance between the public and the asylum seekers who make a moral claim on them.
This Article assesses refugee distancing policies—offering a history and analysis of their causes, as well as a commentary on their future. It contends that current policies may have unintended consequences, as did the U.S. government’s efforts to thwart asylum for Haitian and Central American claimants in the 1980s–1990s. These efforts led to legal precedent allowing for the extraterritorial reach of the Constitution and to a political movement that created new immigration benefits for many asylum applicants. The Article sketches out the legal challenges to one prominent refugee distancing policy, the MPP, and describes how a transnational legal process might contest refugee distancing over the long term.
Monday, September 28, 2020
Immigration Article of the Day: Sites of (Mis)Translation: The Credible Fear Process in United States Immigration Detention by Kif Augustine-Adams and D. Carolina Núñez
Sites of (Mis)Translation: The Credible Fear Process in United States Immigration Detention by Kif Augustine-Adams and D. Carolina Núñez, 35 Georgetown Immigration Law Review (2021 Forthcoming)
The credible fear interview presents a high-stakes encounter in the circumscribed legal process afforded to individuals in immigration detention as they seek to claim asylum in the United States. Limited research, however, exists on the sociolegal consequences of translation and interpretation in the asylum process generally and the credible fear context specifically. Our paper advances that scholarship in the context of the credible fear process for detained individuals by focusing on two sites of potential (mis)translation and (mis)interpretation: 1) explaining “credible fear” and 2) transposing individual facts and trauma into the legal categories that United States and international asylum law recognize as forming the basis for an asylum.
Proposed Regulation on the Change of Admission Period of F, J, and I Nonimmigrants from Duration of Status: What You Need to Know
As previously reported, the Trump administration is tightening up on student visas. Please read the FAQ prepared by the Penn State Center for Immigrants' Rights Clinic and Presidents’ Alliance on Higher Education and Immigration on the proposed rule for international students: states, among other things, that "[o]verall, if finalized without change, the rule would constitute the largest changes to regulation of international students and scholars in 20 years."
Over the weekend, The Daily podcast looked at climate migration. Here is the description of the episode:
"In August, Abrahm Lustgarten, who reports on climate, watched fires burn just 12 miles from his home in Marin County, Calif.
For two years, he had been studying the impact of the changing climate on global migration and recently turned some of his attention to the domestic situation.
Suddenly, with fires raging so close to home, he had to ask himself the question he had been asking other people: Was it time to move?
This week on The Sunday Read, Abrahm explores a nation on the cusp of transformation."
Sunday, September 27, 2020
I would add Sessions v. Morales-Santana to the discussion. In that case, Justice Ginsburg, writing for the Court, struck down gender distinctions in the derivative citizenship laws.
Al Jazeera reports that Swiss voters will decide whether to annul a pact with the European Union on the free movement of people. The right-wing Swiss People’s Party (SVP) – the largest in the Swiss parliament – has led the support for the referendum, known as the Limitation Initiative, to regain control over immigration, echoing some of the arguments pro-Brexit politicians used in the run-up to Britain’s exit from the EU.
The first sentence of the Fourteenth Amendment provides: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This language raises two substantial questions of scope. First, what does it mean to be born “in” the United States? Does that include birth in U.S. overseas possessions, territories, bases, or places under temporary U.S. occupation? Second, what does it mean to be born “subject to the jurisdiction” of the United States? Does that include persons born in the United States to parents who are only temporary visitors or parents not lawfully present in the United States?
The original meaning of the citizenship clause’s text indicates a broad scope for constitutional birthright citizenship as to both places and persons. At the time of enactment, places subject to the permanent U.S. sovereign authority were considered “in” the United States without regard to whether they were territorially contiguous or culturally integrated into the U.S. political system. In mid-nineteenth-century terminology persons born within U.S. territory were “subject to [its] jurisdiction” unless excluded legally by international rules of immunity or practically by military or political realities.
But these originalist solutions in turn raise a challenge for originalism as a theory of modern constitutional interpretation. There is little evidence that the Amendment’s enactors considered or could have foreseen the modern implications of either question. The United States had no material overseas possessions when the Amendment was drafted and ratified. Restrictive federal immigration laws did not materially take hold in the United States until the late nineteenth century. Application of the citizenship clause thus requires originalism to confront the role (or lack thereof) of intent in modern originalist theory. Modern originalists generally claim to be bound by the original meaning of the text rather than the original intent of the enactors. But in the case of the citizenship clause, the text’s resolution of key questions of its scope appears to be largely accidental. The citizenship clause presses originalism to explain why original meaning should be binding in modern law when it does not reflect the enactors’ policy choices. As the Article will discuss, explanations are available, but they may take originalism away from some of its apparent common ground.
Saturday, September 26, 2020
Looking for a new song to play in your immigration class? Consider Rage Against The Machine's Without A Face (1996):
Here's what the band's lead singer Zack De La Rocha said about this song: "It seems as soon as the wall of Germany fell, the US government was busy building one between the border between the US and Mexico. Since 1986 as result of a lot of the hate talk and hysteria that the the government of the United States has been speaking, 1500 bodies have been found on the border. We wrote this song in response to it."
What does it mean to be American? In this starkly illuminating and impassioned book, Pulitzer Prize–finalist Laila Lalami recounts her unlikely journey from Moroccan immigrant to U.S. citizen, using it as a starting point for her exploration of the rights, liberties, and protections that are traditionally associated with American citizenship. Tapping into history, politics, and literature, she elucidates how accidents of birth—such as national origin, race, and gender—that once determined the boundaries of Americanness still their shadows today.
Lalami poignantly illustrates how white supremacy survives through adaptation and legislation, with the result that a caste system is maintained that keeps the modern equivalent of white male landowners at the top of the social hierarchy. Conditional citizens, she argues, are all the people with whom America embraces with one arm and pushes away with the other.
Brilliantly argued and deeply personal, Conditional Citizens weaves together Lalami’s own experiences with explorations of the place of nonwhites in the broader American culture.