Sunday, January 31, 2021
Since 2017, President Trump and his allies have hurtled the politics and policy of immigration in xenophobic directions to an extent without modern precedent, and with devastating effect. The Trump presidency has instituted hundreds of restrictionist measures, including high profile initiatives that have prompted significant public controversy and many less prominent, often technical measures that have erected a sprawling, “invisible wall” and placed millions at heightened risk of deportation. With the onset of the novel coronavirus pandemic, the administration has intensified this crackdown further, using the outbreak as a pretext to institute even more sweeping restrictions that it previously had tried but failed to achieve.
Because these measures have been implemented almost entirely through executive action, rather than new legislation, the incoming Biden administration will be well-positioned to roll back many of them—that is, provided that it commits the resources, energy, and political capital required. But even as it seeks to dismantle the Trump immigration legacy, the new administration should also lay the foundation for a more fundamental paradigm shift away from the entrenched regime of comprehensive immigration severity that enabled the Trump presidency’s xenophobic crackdown in the first place. In both its executive actions and legislative agenda on immigration, the new administration has an opportunity to embrace the more ambitious objective, as it has in other policy domains, to "build back better" in the aftermath of Trump.
The recordings from the 2021 AALS meeting are now available online. All you need to do is log in, click on "Schedule," search for the session you're interested in, and, finally, click "Watch Now."
Can't remember all the great immigration programming? No problem. Look for these sessions:
January 7 from 1:15-2:30 (Eastern): Outsourced Borders and Invisible Walls
January 8 from 11:00-12:15 (Eastern): Disability and Intersectionality: Celebrating 30 Years of Intersectionality and the ADA
January 8 from 1:15-2:30 (Eastern): The Future of Plyler v. Doe on Its 40th Anniversary
Britain Is Finally Living Up To Its Moral Responsibility To Hong Kong by Minyao Wang
Across the pond in the United Kingdom there is a momentous development which has the potential to unleash one of the biggest migration waves in modern times, comparable to the recent arrival of Middle Eastern refugees in Germany or the exodus of refugees from Southeast Asia after the end of the war in Vietnam. Effective January 31, up to 5.7 million people in Hong Kong (out of a population of 7.5 million) can apply for a new visa which will allow them live and work in the U.K. and eventually become British citizens. Even if only a fraction of the eligible Hong Kong residents accepts the offer (the British Government is formally projecting that only 300,000 will make the move), the upcoming exodus will have profound societal impacts in both the U.K. and Hong Kong. It is worth pausing for a moment to sketch out why, 180 years to the date of the initial British arrival in Hong Kong and almost 25 years after the British relinquished control of the territory to China, a government elected to implement Brexit concluded that it has a moral obligation to open the country’s doors to the Hong Kong people.
Reflecting the country’s imperial history, British nationality law is both complicated and convoluted. To my knowledge, it is the only democracy that has tiers of citizenship. There are currently six different types of British nationality, only one of which—straightforward British citizenship—allows its holders to live without restriction in the U.K. In the final years of colonial rule in Hong Kong, the majority of its residents were considered “British Overseas Citizens” who did not have the right to live in the U.K. That status was terminated on July 1, 1997, when Hong Kong’s sovereignty was restored to China and Hong Kong residents became Chinese citizens. In recognition of its historical association with Hong Kong, Britain enacted a unique and largely symbolic tier of nationality called “British National (Overseas).” British Overseas Citizens from Hong Kong qualified for this new status by undergoing a voluntary registration process before the 1997 handover. Over three million people in Hong Kong registered, eager to retain a linkage to (and a possible insurance policy with) their soon to be former colonial ruler. Holders of BN(O) nationality may travel internationally using a special British passport and in the unlikely event that they are in distress, call on a British consulate for assistance, but they cannot work or live in the U.K. And critically, BN(O) nationality cannot be transferred by descent. There is no way for a child of a BN(O) holder born after 1997 to acquire that status (in fact, there is no way to obtain that status after 1997 at all). As a result, with the passage of time, BN(O) will become a relic.
In a treaty signed with Britain and registered at the United Nations regarding the future of Hong Kong, the Communist government of China agreed that for 50 years after the handover “the current social and economic systems in Hong Kong will remain unchanged.” The Chinese further promised the people of Hong Kong that they could after 1997 democratically elect their leaders who would govern Hong Kong free from interference by Beijing. The understanding was after 50 years (by 2047) China would have evolved into a democracy with a standard of living close to that of Hong Kong so that the two places would converge politically and economically.
Whitehall bureaucrats might have believed the lofty Chinese promises, but the people in Hong Kong knew better. They found it impossible to entrust their future to a brutal dictatorship that unleashed disaster after disaster on the Chinese people and massacred thousands of unarmed young civilians in Tiananmen. Surveys from the time indicated that at least half the city would immediately leave if given the chance. People preferred taking the risk of starting anew in a foreign land to accepting their fate under communism. In their heart of hearts, the people of Hong Kong knew that the involuntary marriage of their prosperous, modern and cosmopolitan enclave to a repressive and impoverished communist behemoth was bound to be disastrous.
The Hong Kong people furiously lobbied for the right to move to the U.K. Their emotional plea was that a renowned anti-communist like Prime Minister Margaret Thatcher should not turn over six million souls to totalitarian communism without giving them an option B. This did not work. The best London would do (and it did it very reluctantly and only after the bloodshed in Tiananmen forced its hands) was to, using a point system, give 50,000 high-achieving Hong Kong families the opportunity to move to the U.K. One prominent political leader in London noted that prospective Hong Kong emigrants would be “a destabilizing factor in society” because they did not “share our culture, our language, [and] our ways of social conduct.” According to him, the British people did not want to be “swamped by people of different culture, history and religion. ... The fact is that most people in Britain did not want to live in a multicultural, multiracial society.” The people of Hong Kong saw the British indifference to their plight as thinly disguised racism. One common sign in Hong Kong was: “The issue is right or wrong, not white or Wong.''
Rebuffed by London, the people of Hong Kong looked elsewhere for safety. Exploring and executing a plan to emigrate became a daily obsession for the Hong Kong middle class. One Hong Kong person pensively told the British Parliament that “I sometimes wonder what the British people feel when they read about Hong Kong British subjects scurrying around the world to find somewhere else to take them in.” In the decade leading up to 1997, about 60,000 people left each year. Those departures are the most scathing rebuke imaginable of China and its failed government. People who could find a way out all voted with their feet. Canada was the preferred destination of the Hong Kong diaspora. They have remade large portions of metro Vancouver and Toronto into thriving Little Hong Kongs. Arguably the best Hong Kong cuisine and pastries in the world are now found in those two Canadian cities. Nearly 600,000 people in Canada speak Cantonese as their first language (while only 100,000 in Britain do).
The post-handover developments in Hong Kong have decisively vindicated the worst pessimism of its people. We are now at the mid-point of the 50 year period. The hoped-for convergence is not happening as China doubles down on its severe political repression at home. It has imprisoned millions of Uyghur people in concentration camps, which both the Trump and Biden administrations have correctly called an act of genocide. The Communist regime has made it clear that it has no intention of honoring its legally binding promise to allow democratic elections in Hong Kong. Instead, it enables its hand-picked cronies to rule Hong Kong, whose incompetence has led to a sharp deterioration in living standard for ordinary people. Meanwhile by virtue of language, culture and family connections, the people of Hong Kong have a unique window onto mainland China itself. They see that beyond the gleaming skyscrapers, high speed trains and other “Potemkin village” projects, there is no substance. They see that China’s present would unfortunately be Hong Kong’s future, not the other way around. They do not want their children to be a part of that very bleak future.
When the Hong Kong Government in the spring of 2019 attempted to introduce a new law that would facilitate extradition with the mainland, the Hong Kong streets exploded with rage. Millions of ordinary people marched in almost daily protests demanding that China honor its treaty obligations, confronting Hong Kong police officers who resorted to thuggish mainland police tactics to shut down peaceful assemblies. It was inevitable that it would come to a head like this. Even if the extradition bill was never introduced, something else would have certainly ignited the accumulated anger and frustrations of the Hong Kong people. And it was also inevitable that the Communists regime would respond to the historic uprising with an iron fist. While the rest of the world is distracted with COVID 19, the Chinese government is busy eliminating the last vestiges of freedom in Hong Kong. There is no question that Hong Kong is becoming another dour mainland Chinese city devoid of human hope.
Faced at last with the irrefutable proof that its treaty with China is a worthless scrap of paper, the British Government decided to go beyond verbal condemnation. To his everlasting credit, Prime Minister Boris Johnson decided that all BN(O) registrants, as well as their family members (including in some circumstances adult children) who are not themselves BN(O) passport holders, are eligible to move to the U.K to start a new life. To quote Mr. Johnson, “[t]his would amount to one of the biggest changes in our visa system in British history” but Britain must “uphold our profound ties of history and friendship with the people of Hong Kong.”
In other words, the people of Hong Kong are finally getting what they asked for unsuccessfully 30 long years ago. It is a remarkably magnanimous gesture by a government that campaigned on restricting immigration. Even more remarkably, the country’s most ring-wing political figures and newspapers are either silent or outright supportive. Even though immigration is such a controversial topic in the U.K. (as it is here in the U.S.), there is unanimous recognition across the political spectrum that China’s breach of its obligations to Hong Kong is beyond the pale and it is time for Britain to correct a serious historical wrong.
Saturday, January 30, 2021
Immigration Article of the Day: American Muslims: The Untouchables of American Constitutional Democracy? by Sohail Wahedi
This article is about the future of Muslims in the American constitutional democracy. How this future will look like depends highly on how the dominant majority as well as those sitting in the political, executive and judicial branches of power will deal with the emergence of Islamophobia. This article explores the roots of American fear of Muslims and their faith and reflects on what Islamophobia and its reinforcement bring for the future of American democracy. This article contends that the American anxiety about Islam will create huge disparities and advance a political agenda tainted with animus toward Muslims. This insidious dis-invitation to Muslims to participate in the American democracy needs to be halted to cleanse the American political scene from anxiety, bigotry and exclusion.
Friday, January 29, 2021
We previously posted here about the end to former U.S. Attorney General Jeff Sessions's policy of zero tolerance for illegal entry prosecutions. With immigration prosecutions being the most prosecuted category in the Trump Department of Justice, continuing developments at the DOJ are an important piece of immigration policy.
Today Acting Attorney General Monty Wilkinson rescinded a 2017 memo from former AG Sessions on prosecutorial charging policy. In its place, former Attorney General Eric Holder's May 19, 2010 charging policy has been reinstated. The new memo stresses that "reasoned exercise of prosecutorial discretion is critical to the fairness, effectiveness, and integrity" of the system, something that professor Shoba Sivaprasad Wadhia has published on widely in the immigration field.
The reinstated Holder policy requires that DOJ prosecutors conduct an individualized assessment of relevant facts in making charging and sentencing decisions and ends the Sessions policy that prosecutors must “charge and pursue the most serious, readily provable offense.”
Today, Acting DHS Secretary David Pekoske extended the Temporary Protected Status (TPS) designation for Syria for 18 months through September 30, 2022. He also re-designated Syria for TPS, effective March 31, 2021, through Septemeber 30, 2022.
Why do Syrians need TPS? Well, one answer can be found in this fascinating article in the magazine Nature: The impact of the Syrian conflict on population well-being. Check out this compelling abstract:
The United Nations described the Syrian conflict as the worst man-made disaster since World War II. We adopted a global perspective in examining the impact of the Syrian conflict on Syrians’ physical, mental, and social well-being using the Gallup World Poll. Face-to-face interview data of 11,452 Syrian participants from 2008 to 2015 show that Syrians’ physical (e.g., access to shelter), mental (e.g., life satisfaction), and social (e.g., social support) well-being decline substantially. Syrians who reported being exposed to the conflict are similarly affected compared to those without direct exposure, suggesting country-wide spillover effects. Global data covering 1.7 million participants across 163 countries from 2006 to 2016 show during the conflict, Syria’s precipitous decline in well-being is unparalleled in the world, even when compared to countries similarly experiencing war, protests, and disasters. Our findings reinforce the vital importance of an accelerated peace process to restore well-being in Syria.
From the Bookshelves: Is America Fulfilling Its Promise? Safeguarding Legal Protections for Immigrants
Is America Fulfilling Its Promise? Safeguarding Legal Protections for Immigrants, published by the New York State Bar Association. Editor(s): Scott Fein, and Rose Mary Bailly,
This book shows how a nation built by immigrants can and should treat those who come to our shores in search of better lives. It draws on the combined efforts of dedicated jurists, law professors, legal service organizations, lawyers and local law enforcement to address today’s immigration challenges in a constructive, humane way. Though created and written primarily by lawyers, the book is not just for the legal community. Public officials will find insightful information here as will anyone, lawyer or not, committed to the rule of law.
Lila Downs has a new song, Dark Eyes, supporting our essential workers. The song benefits the Binational Center for the Development of Oaxacan Indigenous Communities (CBDIO), a non-profit organization created by the Indigenous Front of Binational Organizations (FIOB).
Doordash business has ticked up a tad with the pandemic. Here is another reason to be a fan.
DoorDash has published a blog post highlighting its ongoing efforts on immigration. DoorDash was among the nearly 200 voices calling for bipartisan leadership on immigration reform, including prioritizing a pathway to citizenship for Deferred Action for Childhood Arrivals (DACA) recipients. The company says they are focused on "advocating for public policies that better serve immigrants and other groups who contribute so much to the United States. We recognize that there is always more to be done and we look forward to continuing to use our voice to make a meaningful difference."
Rebecca Morin for USA Today ("Meet the 7 congresswomen who are steering Biden's immigration agenda in the House") reports on a group of seven pushing President Biden's immigration agenda. The group, who call themselves the Closers, is led by Rep. Linda Sánchez (D-CA). Others in the group are Representative Zoe Lofgren (D-CA), Lucille Roybal-Allard (D-CA), Nydia Velázquez (D-NY), Judy Chu (D-CA)., Yvette Clarke (D-CA), and Karen Bass (D-CA). Accoring to the story, "Sánchez, chairwoman of the Congressional Hispanic Caucus’ Immigration Task Force, said she chose this group of congresswomen for the group because of their past work on immigration, in addition to several of the congresswomen serving districts that have large migrant communities."
Freedom of movement is one of the great issues of our time. Expanding opportunities for both international and internal migration can greatly expand freedom and opportunity for hundreds of millions of people. The same goes for expanding freedom of choice in the private sector. “Voting with your feet” in any of these three ways is also, in crucial ways, superior to ballot box voting as a mechanism of political choice.
In this article I summarize the key advantages of foot voting over ballot box voting, describe how they apply to the three major types of foot voting, and outline answers to several types of standard objections to expanded migration rights. I address these issues in much greater detail in my book Free to Move: Foot Voting, Migration, and Political Freedom, on which this article draws..
Thursday, January 28, 2021
Guest post by Tania Valdez, Clinical Fellow, University of Denver Sturm College of Law
Episode 1 of Immigration Nation has several scenes that provide fodder for substantial discussion and participatory class exercises around suppression and termination. For background on these issues, the American Immigration Council has published a Practice Advisory that provides excellent information on motions to suppress and terminate.
The first scene in the episode (from around 30 seconds in to around 03:05) provides enough facts for a rich discussion of potential suppression issues based on regulatory violations.
The regulations at 8 C.F.R. § 287.8 provide parameters for ICE officers’ conduct. There are echoes of constitutional protections in some of these regulations, which students might recognize based on what they learned in their Criminal Procedure class.
- To detain someone temporarily requires reasonable suspicion that the person has committed an offense against, or is illegally in, the United States. Arrest requires “reason to believe” essentially the same. 8 C.F.R. § 287.8(b)(2), (c)(2)(i).
- A warrant is required, unless ICE can show that the person is “likely to escape” before a warrant can be obtained. 8 C.F.R. 287.8(c)(2)(ii).
- ICE may not enter a home or other non-public area without consent. 8 C.F.R. 287.8(f)(2).
- Use of force must be reasonable. 8 C.F.R. 287.8(a)(1).
- An officer must identify themselves as immigration officer at the time of arrest and state the reasons for the arrest. 8 C.F.R. 287.8(c)(2)(iii).
- An officer may not use “threats, coercion, or physical abuse” to induce someone to waive their rights or make a statement. 8 C.F.R. 287.8(c)(2)(vii).
One issue in the first scene that troubled students this past semester was that ICE officers represented, both verbally and by patches on their clothing, that they were “police.” This struck students as a misrepresentation—and possibly an illegal or at least unethical one.
Yet, there is no ban on ICE officers identifying themselves as “police.” The regulations only provide that an officer must identify themselves as an immigration officer “[a]t the time of arrest . . . as soon as it is practical and safe to do so.” 8 C.F.R. § 287.8(c)(2)(iii).
There have been some attempts to change ICE’s practice. In 2017, Representative Nydia M. Velazquez (D-NY) introduced H.R. 2073, a bill seeking to amend INA § 287 “to prohibit immigration officers or agents of the Department of Homeland Security from wearing clothing or other items bearing the word ‘police.’” Also in 2017, Los Angeles city officials asked ICE to stop identifying themselves as “police,” because the practice affects the willingness of immigrants to cooperate in criminal investigations and prosecutions.
Even though ICE officers stating that they are “police” is technically legal, the topic is certainly worth discussing as a class. There are also other regulations implicated in this same scene. For example, several of the facts raise a question regarding whether the officers truly obtained “consent” to enter the home: the operation is occurring in the wee hours of the morning when the household is asleep (causing obvious confusion for the occupants of the household), the officers bang on the door as if there is an emergency, they yell “Police!,” state they have a warrant but refuse to present it, and gain entry to the home by saying they want to show the woman pictures. These tactics at least cast doubt regarding consent and could lead to a lively class discussion.
A useful case to assign as class reading to prime discussion on the topic of consent to enter a home is Oliva-Ramos v. Attorney General, 694 F.3d 259 (3d Cir. 2012). Oliva-Ramos was a ground-breaking case (litigated by the NYU Immigrant Rights Clinic) where the court discusses at length ICE’s coercive tactics and the use of ruses to gain entry to a home.
Here is a skeletal lesson plan (for Zoom or in person):
- Watch Episode 1 of Immigration Nation. In the Immigration Nation episode, look for constitutional or regulatory problems you see with ICE’s conduct in the scenes where officers gain entry to homes, question, detain, and/or arrest people.
- Assign a case from your circuit. Since I was teaching in the Third Circuit, I assigned Oliva-Ramos v. Attorney General, 694 F.3d 259 (3d Cir. 2012), a fabulous clinic case.
Debrief film. I found this to be important to do first because of the heavy emotional content.
Present, or facilitate a discussion, on suppression and termination.
Argument exercise. I allocated 25 minutes for this exercise but would now plan for more like 45 minutes because the 10 students really got into it.
- Choose a “case” to litigate from among the violations students noted in the film. I selected the first scene.
- Divide class into breakout groups where teams come up with the best arguments for each side (citing facts and legal authority). We divided into two Zoom Breakout Rooms (5 students per room), one for Respondent’s counsel and one for DHS counsel.
- Come back together as a whole and hear arguments from each side, with professors (or students if they are comfortable) playing the IJ.
-posted by KitJ on behalf of Tania Valdez
11 Years of Government Data Reveal That Immigrants Do Show Up for Court
WASHINGTON, Jan. 28, 2021—A new report released today by the American Immigration Council examines 11 years of government data on the rate at which immigrants appear for hearings in U.S. immigration court. The report, “Measuring In Absentia Removal in Immigration Court,” concludes that an overwhelming 83% of immigrants attend their immigration court hearings, and those who fail to appear in court often did not receive notice or faced hardship in getting to court.
As the new administration of President Joe Biden considers how to reform the immigration system, including the immigration courts, this report reveals how reliance on detention, access to legal representation, and immigration judges’ docket management impact immigrants’ appearance rate.
The report draws on government data from 2,797,437 immigration court removal proceedings held between 2008 to 2018. It documents how individuals who were never detained and those who were released from detention proceeded through court and what obstacles they faced in pursuing their immigration cases.
The report finds that people released from immigration detention and individuals with attorneys overwhelmingly attend their hearings. Data also show that immigration judges have a vital role in maintaining due process. The findings further demonstrate that the creation of an independent structure for the immigration courts would help reduce the prevalence of unwarranted in absentia removal orders and give immigration judges more discretion in managing their dockets and individual case decisions.
The main findings of the report include:
“The empirical research presented in this report debunks the myth that immigrants don’t show up for court,” said Ingrid Eagly, professor of Law at UCLA School of Law. “Relying on the government’s own immigration court data, co-author Steven Shafer and I find that, since 2008, 83% of all immigrants in nondetained deportation cases have attended all of their court hearings. In addition, over the 11 years of our study, 96% individuals represented by an attorney attended all of their court hearings.”
“Today’s report verifies what those who have worked in the immigration court system already knew: immigrants overwhelmingly show up in court. We hope that this data finally puts to rest a false narrative about immigrants’ appearance rates that past administrations used to justify restrictive and cruel immigration policies,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council. “After previous administrations spent years funding immigration enforcement to address a small set of individuals who miss court, the Biden administration has the opportunity change course. To ensure even higher appearance rates, the new administration should focus on updating immigration court technology, providing better resources to orient immigrants, and working to ensure that all immigrants navigating our removal system are represented by counsel. As Congress debates immigration reform, this report shows that it’s time to revisit harsh and punitive laws that require judges to enter deportation orders for a single missed hearing and which limit the ability of the government to appoint counsel.”
“The findings of this timely report confirm what many of us formerly on the immigration bench have known for years: represented asylum seekers appearing before fair, knowledgeable judges show up for virtually all of their immigration court hearings,” said Paul Wickham Schmidt, former immigration judge and board member for the Board of Immigration Appeals. “The findings refute one of the many ‘big lies’ and ‘bogus narratives’ promoted by the last administration to demean and dehumanize asylum seekers and wrongfully deprive them of their legal and constitutional rights. The Biden administration should pursue changes that would provide immigration judges greater independence and discretion and support the creation of an independent structure for the immigration courts.”
For more information, contact:
Maria Frausto at the American Immigration Council, at firstname.lastname@example.org or 202-507-7526.
Amanda Frost Interviewed on her New Book You are Not an American: Citizenship Stripping from Dred Scott to the Dreamers
Amanda Frost's book You are Not an American: Citizenship Stripping from Dred Scott to the Dreamers (2021) is getting quite the play. Check out this SCOTUSBlog interview with Frost about the book by Jack Chin.
Frost writes the Academic Round-up column for SCOTUSblog, highlighting noteworthy scholarship on the Supreme Court. Today, at 8 p.m. EST, Politics & Prose will host a virtual book launch. To register for the event, click here.
Measuring Immigrants’ Appearance Rate in Immigration Court
What: For four years the Trump administration repeatedly relied on the flawed narrative that immigrants with pending court dates rarely show up for their hearings to justify cruel immigration policies including the zero-tolerance policy that resulted in horrific separations of thousands of children from their parents, the “Remain in Mexico” program, increasing immigration detention to record numbers, and asylum bans. However, the government’s own data tells a far different story and provides the Biden administration the opportunity to take a fresh look at immigration policy and implement data-driven policies.
Join experts who will discuss findings from a national study of government data on the rate at which immigrants appear for their hearings in immigration court and a discussion of how this information should inform policy decisions by the Biden administration and new Congress.
When: Jan. 28, 2021 at 1 p.m. EST / 10 a.m. PST
RSVP: For dial-in information RSVP to Maria Frausto at email@example.com.
Linda Greenhouse offers an op-ed in the New York Times about the meaning of Trump v Hawaii now that President Biden has rescinded the Muslim travel ban that gave rise to it. After all, the legal precedent remains even though the policy is now gone. The whole piece is worth reading - especially the immigration law professors teaching the foundation cases in plenary power, as I am this week - but two passages especially caught my attention.
First, Greenhouse offers a retrospective with more knowledge of President Trump's antipathies and the Supreme Court's sensitivity to religious liberty, likely enhanced with the addition of Justices Cavanaugh and Coney Barrett. From Sonia Sotomayor's dissent
The majority’s “highly abridged account does not tell even half of the story,” Justice Sotomayor began. What was left out was an inventory, which she provided, of oral and written statements by Donald Trump, as both candidate and president, attesting to his desire to keep Muslims out of the country — directly if possible, or by “politically correct” means if required by the courts. "The full record paints a far more harrowing picture,” Justice Sotomayor went on, “from which a reasonable observer would readily conclude that the proclamation was motivated by hostility and animus toward the Muslim faith.” She added, “Given the overwhelming record evidence of anti-Muslim animus, it simply cannot be said that the proclamation has a legitimate basis.” To the contrary, she concluded, “It runs afoul of the Establishment Clause’s guarantee of religious neutrality.”
The second is a reminder of the federal government's responsibility to exercise its vast executive powers and enforcement discretion in responsibly - in immigration law and elsewhere. Quoting a passage from Justice Kennedy (his last on the Supreme Court before retiring):
There are numerous instances in which the statement and actions of government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the judiciary can correct or even comment upon what those officials say or do. Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.
It has only been a few weeks since the insurrection spurred on by President Trump in Washington D.C. Now, the Biden Department of Homeland Security is doing something that the Trump administration would not.
"[t]ere is currently a heightened threat environment across the United States that is likely to persist over the coming weeks. DHS does not have any information to indicate a specific, credible plot; however, violent riots have continued in recent days and we remain concerned that individuals frustrated with the exercise of governmental authority and the presidential transition, as well as other perceived grievances and ideological causes fueled by false narratives, could continue to mobilize a broad range of ideologically-motivated actors to incite or commit violence."
"Throughout 2020, Domestic Violent Extremists (DVEs) targeted individuals with opposing views engaged in First Amendment-protected, non-violent protest activity. DVEs motivated by a range of issues, including anger over COVID-19 restrictions, the 2020 election results, and police use of force have plotted and on occasion carried out attacks against government facilities.
Long-standing racial and ethnic tension—including opposition to immigration—has driven DVE attacks, including a 2019 shooting in El Paso, Texas that killed 23 people."
Human Rights Watch reports that, two years after the implementation of the Migrant Protection Protocols (MPP), newly released government records reveal U.S. immigration agencies’ efforts in 2019 to rapidly deport thousands of people from the United States through the Electronic Nationality Verification (ENV) program. The records reveal details about how the Department of Homeland Security (DHS) and its component agencies, U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE), touted the ENV program to expedite the repatriation of many Central Americans without obtaining travel documents from their home country, a process that traditionally involved contact with foreign consulates. US and international law give foreign nationals a right to contact their consulate when arrested. The American Immigration Council, the American Immigration Lawyers Association, Human Rights Watch, and the law firm Winston & Strawn LLP obtained the documents through a lawsuit to compel the release of records about the MPP. The documents include a 2019 DHS memo describing how the governments in El Salvador, Guatemala, and Honduras agreed to pilot ENVs.
Wednesday, January 27, 2021
We've been following the Texas lawsuit challenging recent immigration decisions from the Biden administration. (Read here and here.) It's worth taking a step back to discuss what's got Texas all hot and bothered. It's a January 20, 2021 memo from Acting DHS Secretary David Pekoske entitled Review of and Revision to Civil Immigration Enforcement and Removal Policies and Priorities.
The memo opens: "This memorandum directs Department of Homeland Security components to conduct a review of policies and practices concerning immigration enforcement. It also sets interim policies during the course of that review, including a 100-day pause on certain removals to enable focusing the Department’s resources where they are most needed."
That pause doesn't apply across the board. Exempted is anyone who:
1. According to a written finding by the Director of ICE, has engaged in or is suspected of terrorism or espionage, or otherwise poses a danger to the national security of the United States; or
2. Was not physically present in the United States before November 1, 2020; or
3. Has voluntarily agreed to waive any rights to remain in the United States, provided that he or she has been made fully aware of the consequences of waiver and has been given a meaningful opportunity to access counsel prior to signing the waiver; or
4. For whom the Acting Director of ICE, following consultation with the General Counsel, makes an individualized determination that removal is required by law.
What else is in the memo? Well, as the title of the memo suggests, all departments have 100 days to review their immigration enforcement polices and practices. And they're supposed to identify how to prioritize the use of their assets going forward.
The memo also contemplates a future framework for prioritizing deportations. (Prioritization existed during the Obama administration, but President Trump eschewed prioritization.) And while priorities may shift as a result of the 100-day internal analysis, the memo sets out some temporary priorities that will kick in on Feb. 1, 2021:
1. National security. Individuals who have engaged in or are suspected of terrorism or espionage, or whose apprehension, arrest and/or custody is otherwise necessary to protect the national security of the United States.
2. Border security. Individuals apprehended at the border or ports of entry while attempting to unlawfully enter the United States on or after November 1, 2020, or who were not physically present in the United States before November 1, 2020.
3. Public safety. Individuals incarcerated within federal, state, and local prisons and jails released on or after the issuance of this memorandum who have been convicted of an “aggravated felony,” as that term is defined in section 101(a) (43) of the Immigration and Nationality Act at the time of conviction, and are determined to pose a threat to public safety.