Sunday, February 28, 2021
Pop culture has condemned the violence. Not long after the coronavirus was declared a global pandemic in 2020, hip-hop duo Year of the Ox released “Viral”—a track that addresses the rise in anti-Asian crimes linked to the health crisis. The video includes footage of attacks on Asian Americans at a time when political figures use xenophobic rhetoric in assessing blame for the pandemic. Former president Donald Trump was criticized for calling COVID-19 as the “China virus” and “kung flu.”
Photo courtesy of the White House
In "Biden’s immigration reset", John Hudak and Christine Stenglein for the Brookings Institution consider the efforts of the Biden administration to reshape immigration law and policy. They note that, to this point,
"Executive action served Mr. Trump fairly well in advancing his policy views, and Mr. Biden has taken the same approach. These executive actions—executive memoranda, presidential proclamations, and executive orders—fall into three basic categories: border/entry policy, interior enforcement, bureaucratic organization."
The report looks at President Biden's changes to
To this point, the changes are incremental in nature and basically limited to scaling back the excesses of Trump immigration policy:
"These early executive actions are fundamentally reactive and restricted to the powers the president can wield without Congress. Those actions also institute policies that last only as long as the president in power desires. What they cannot do is make the overall immigration system fair, efficient, responsive to labor market demand, and reflective of the majority of Americans’ values. Th[e] White House and congressional Democrats introduced the first major comprehensive immigration reform bill since 2013. In the last 20 years, two of these efforts have failed. But the alternative to legislating this issue is a status quo that at best keeps immigrants in a state of uncertainty and misses the opportunity to design a functioning system for 21st-century reality."
Saturday, February 27, 2021
"Most stories about immigrants adjusting to America take place in cities, environs where a newcomer may already have family or friends, or at least be able to find a community. The family in writer-director Lee Isaac Chung’s Minari takes a different route: Jacob and Monica (Steven Yeun and Yeri Han) have come to America from Korea to seek better opportunities—we don’t know much more than that. But we do learn that Jacob has a dream of growing things, of being a farmer. Jacob, Monica and their two young children, David and Anne (Alan Kim and Noel Cho), have lived for a time in California, but as the movie opens, we see them driving to what will be their new home: A blocky rectangle of a house propped on cinderblocks, adjacent to a stretch of land that looks like paradise to Jacob—but not to Monica. She says little at first, but her stern silence tells us what she’s thinking: Why have you brought us here? This is 1980s Arkansas; there may be a few Koreans here and there, but there’s not much of a community."
Immigration Article of the Day: Freedom of Movement, Migration, and Borders by Jaya Ramji-Nogales & Iris Goldner Lang
Freedom of Movement, Migration, and Borders by Jaya Ramji-Nogales & Iris Goldner Lang, Journal of Human Rights (2020)
COVID-19 policies in the European Union and the United States have severely restricted free movement, migration, and asylum rights, in particular putting into jeopardy the human rights of refugees. This article addresses these implications while indicating the particularities of anti-COVID-19 mobility measures on both sides of the Atlantic. The article will disclose that COVID-19 mobility measures represent extraordinary challenges to fundamental principles of both the European Union and the United States; free movement of persons without border controls is a central reason for the existence of the European Union, and protection of individuals fleeing persecution has been a core commitment of the United States since its founding. The human rights implications of all of these border closures are alarming, putting at grave risk vulnerable populations who are ostensibly protected by these domestic and international legal obligations.
Friday, February 26, 2021
Vera Institute -- A Federal Defender Service for Immigrants Why: We Need a Universal, Zealous, and Person-Centered Model
As most readers no doubt know, noncitizens -- including lawful permanent residents and minors -- are not guaranteed counsel in removal proceedings. The Vera Institute has released a policy brief arguing for a federal representation program for immigrants. Among other things, the brief notes that 77% of those in immigration court in 2019 did not have counsel, but that those with counsel are 3.5x more likely to be granted bond and 10% more likely to be able to remain in the United States.
Here is the overview of the report:
"The Vera Institute of Justice . . . recommends that the Biden administration draw from time-tested models, data, and knowledge to build a federally funded, universal legal defense service that provides universal, zealous, and person-centered defense to all immigrants. This federal defender service should be modeled on the criminal federal defender system, which is generally regarded as more successful at realizing the values of high-quality, appropriately funded representation than its state counterparts. Vera makes this recommendation based on years of experience building and managing national immigrant legal defense programs. A federal defender service built on these core values is effective and achievable, and it would help ensure that the lives, liberty, and community health of immigrants are given full and equal protection under the law regardless of status. This policy brief highlights that a federal defender service would address systemic inequities of the immigration system and has widespread support in the United States."
A federally funded, universal legal defense service that provides universal, zealous, and person-centered defense to all immigrants would help address systemic inequities within the immigration system, and would represent a safeguard that is already proven, effective, achievable, and has widespread public support.
The Hill covered the release of the report.
This Black History Month, we lift up undocumented Black entrepreneurs making Black history today with the launch of Black Immigrants Got Talent (BIG Talent)! Created and led by undocumented Black entrepreneurs Denae Joseph and Edem Tomtania, BIG Talent celebrates the journey, the drive, and the resilience of Black immigrants regardless of status. Immigrants Rising is proud to support BIG Talent through our Entrepreneurship Fund. Visit BIG Talent for more information.
A new film, The Marksman, starring action star Liam Neeson, has an immigration plot line: A rancher on the Arizona border becomes the unlikely defender of a young Mexican boy desperately fleeing the cartel assassins who've pursued him into the U.S.
Kala Fryman, a 4E University of Baltimore Law student who has long been active in immigration law and policy, is taking part in the UB's Legal Data and Design Clinic, where she produced this "SCOTUS map" linking the 1943 Hirabayashi v U.S. decision (holding that President Roosevelt’s executive orders enacting curfews for individuals of Japanese descent living in the United States following the Pearl Harbor attack were constitutional) to the 2020 DACA decision (DHS v. Regents of Univ. of California).
-KitJ (with hat tip to immprof Liz Keyes!)
The terminology of immigration law has been on my mind this week. A piece that I did on The Conversation has spurred some commentary, from claims that I am advocating "open borders" (I have argued for more liberal admissions elsewhere) to engaging in Orwellian speak (actually, I think that "alien" is the Orwellian term) to endorsing crime, poverty, and "slave"" labor.
In writing the piece, I did not know about a film on immigration terminology. Change the Subject (2019) is a 54-minute documentary film about a group of Dartmouth students who challenged anti-immigrant language in the Library of Congress subject headings.
Charlotte Albright for the Dartmouth News describes the student activism that was the subject of the film:
"Nearly five years ago, a group of Dartmouth students, working with Dartmouth librarians, started waging a daunting battle at the highest levels of government—and almost won.
Outraged by the fact that the Library of Congress uses the phrase `illegal aliens' to describe works about noncitizens who have entered the United States without authorization, they petitioned the LOC to replace the subject heading. Their activism grabbed headlines and spurred speech-making in Congress, but, ensnared in a political debate, the controversial heading has still not been changed."
Change the Subject tells the story of the Dartmouth students who challenged anti-immigrant language in the Library of Congress subject headings. Their advocacy took them to the halls of Congress, showing how an instance of campus activism entered the national spotlight, and how a cataloging term became a flashpoint in the immigration debate on Capitol Hill. In partnership with staff at Dartmouth, these students – now alumni – produced a film to document this story.
I heard about the film from Elizabeth Webster, who dropped me an e-mail about my piece in The Conversation. Elizabeth is a teacher at Warren Township High School in Gurnee, Illinois, north of Chicago. She wrote that "[o]ne of our alums, Mr. Oscar Ruben Cornejo Casares, went to Dartmouth after leaving Warren and helped make the 2019 documentary film Changing the Subject."
The Dartmouth Library provides free streaming access to Change the Subject (2019), and to a digital collection of materials related to the original action and to the production of the film.
For noncitizens facing removal, habeas corpus provides one of a very few avenues for Article III review. And, for decades, habeas proceedings have been interpreted as falling under the ambit of the Equal Access to Justice Act (EAJA), which provides for the award of attorneys’ fees to prevailing parties in suits against the federal government. But this understanding is being challenged, threatening the judicial backstop to executive and legislative overreach in immigration. Reducing the ability of lawyers to recover their fees in these circumstances will reduce the number and quality of habeas challenges by individuals being detained while they await removal—a particularly salient worry given the recent history of aggressive enforcement and misconduct by U.S. Immigration and Customs Enforcement.
The Article demonstrates that reading out habeas proceedings from the EAJA is best understood as an example of the federal courts’ jurisprudential shift against the private enforcement of civil rights—that is, the rights retrenchment movement. This case study also shows how non-acquiescence permits agencies to selectively tee up issues for retrenchment and magnify the structural power differences between them and the individuals they face in litigation. The Article then applies a procedural justice lens to normatively assess whether the EAJA should cover immigration habeas. Using the Mathews v. Eldridge framework for this inquiry, the Article identifies the strong private interests at stake, the value of the process, and the government’s interest, mapping these factors to the accuracy, efficiency, and participation norms.
Thursday, February 25, 2021
In 2017, the Trump administration began separating families at the Southern border, prosecuting parents for unlawful entry into the United States and placing their accompanying children into foster care. By the time lawsuits were filed to challenge this program, many parents had already been deported, without their children.
Back in October, I noted that lawyers charged with reunifying migrant families separated by the Trump administration were unable to find the parents of 545 children left behind in the United States. It turns out that the number of children without identified parents was larger than that count. Since then, we've learned the following:
NBC reports that, just this month, lawyers have located the parents of 105 migrant children who'd remained separated from their families.
Lawyers have yet to locate the parents of another 506 migrant children.
Deadline for submissions: 1st March 2021
The COVID-19 pandemic has brought to the fore some of the challenges relating to public health and WASH (water, sanitation and hygiene), and the many factors involved. This issue of FMR – to be published in June 2021 – will explore public health and WASH in contexts of displacement, including a focus on the response to and reduction of the risk of epidemics and pandemics. We welcome submissions relating specifically to COVID-19 but also strongly seek to explore policy and practice in public health/WASH affecting displaced populations more broadly.
This issue of FMR will provide a forum for affected communities, practitioners, policymakers and researchers to explore challenges, share good practice, highlight innovations and offer recommendations. In particular, the FMR Editors are looking for practice-oriented submissions, reflecting a diverse range of experience and opinions, which address topics such as the following:
- Monitoring, addressing and mitigating public health risks in contexts of displacement – in emergencies (including on the move), protracted situations, and in urban or rural contexts.
- Community engagement in public health and WASH services: participation in design, maintenance and running of facilities and services.
- Inclusion of displaced persons in national public health/WASH systems and in planning and monitoring around health-related Sustainable Development Goals.
- Communication, awareness-raising and use of ICT in public health, including alert systems, registration, monitoring, public health messaging, provision of translation and interpreting, and use of social media and other digital channels.
- Data gathering, interpretation and sharing.
- Identifying and addressing needs in provision of supplies, infrastructure, staffing and training.
- Applying learning from the impact of and response to COVID-19 and epidemics such as cholera and Ebola in areas of preparedness, prevention and response.
- The extent to which considerations of gender, disability, sexual orientation, age, language and ability to pay are taken into account in assessing vulnerabilities and protection needs relating to the provision of public health and WASH in contexts of displacement
BEFORE WRITING YOUR ARTICLE: If you are interested in contributing, please email the Editors at [email protected] with a few sentences about your proposed topic so that we can provide feedback and let you know if we are interested in receiving your submission. Do not send us articles that you have not discussed with us.
WHEN WRITING/SUBMITTING YOUR ARTICLE: Please take note of our guidelines for authors and ensure your article, when submitted, complies with our submission checklist: details at www.fmreview.org/writing-fmr. We do not accept articles that do not comply with our checklist.
- We ask all authors to give appropriate consideration to the particular relevance of their responses to persons with disabilities, to LGBTIQ+ persons, to older persons, and to other groups with specific vulnerabilities, and to seek to include a gendered approach as part of their articles. We also ask authors to consider, where appropriate, the impact of climate change in their analysis and recommendations.
- While we are looking for examples of good, replicable practice and experience as well as sound analysis of the issues at stake, we also urge writers to discuss failures and difficulties: what does/did not work so well, and why?
- We are particularly keen to reflect the experiences and knowledge of communities and individuals directly affected by this topic. If you have suggestions of colleagues or community representatives who may wish to contribute, please do email us; we are happy to work with individuals to help them develop an article and very keen to have displaced people’s perspectives reflected in FMR.
Deadline for submission of articles: 1st March 2021
Maximum length: 2,500 words (shorter articles welcome)
Yesterday, Alex Garcia, an Honduran immigrant (and married father of five) who sought sanctuary in Maplewood Church in St. Louis nearly 3½ years ago, went home. Supporters cheered for him as he walked out of the church, where he has lived in sanctuary for more than 3 years, away from his family. Garcia left after U.S. immigration authorities said he is no longer a priority for deportation, his lawyers said.
Garcia sought refuge inside the church because federal authorities had ordered him deported and he wanted to remain in the United States family.
Dozens of masked church members and community supporters cheered him, as he left the church. Many wore T-shirts and carried signs that said, “Alex Belongs Here.”
According to an AP story on Garcia's release, "Myrna Orozco, organizing coordinator at Church World Service said 33 immigrants remain inside churches across the U.S. and that number should continue to drop.'"
I had the pleasure of talking today with Sister Simone Campbell about immigration reform. (the video above is her speech at the Democratic National Convention in 2012.). Sister Simone has served as Executive Director of NETWORK since 2004. She also is an alumna of UC Davis School of Law. She has extensive experience in public policy and advocacy for systemic change. In Washington, she lobbies on issues of economic justice, immigration reform, and healthcare. Around the country, she is a noted speaker and educator on these public policy issues.
Sister Simone is optimistic on immigration reform, perhaps in incremental form. The Dream Plus Act, sponsored by Senators Dick Durbin (D-Ill) and Lindsey Graham (R-SC) may move quickly to the Senate. A bill that would provide immigration benefits to farm labor also may gain traction. By just about everyone's estimation, the comprehensive U.S. Citizenship Act of 2021 faces stiffer odds.
Revised March 4
Ftom Refugees International:
n the prior presidential administration, policy-makers stoked a “border crisis” narrative that willfully ignored both the capacity and the will of Americans to welcome people seeking safety from persecution and gross violations of their human rights. Non-profits, faith groups, and local officials are eager to coordinate with the federal government to receive with dignity those seeking refuge at the border. And with smart and humane policies, these noble objectives can and must be secured.
As part of our ongoing Voices from the Border campaign, over the next few weeks, Refugees International will be sharing the stories of individuals—including asylum seekers, public officials, volunteers, and faith leaders—who are on the frontlines of creating and contributing to welcoming communities across the country.
These stories illustrate an important message: that #WeCanWelcome asylum seekers.
The first video in the series follows the journey of Mirna Linares de Batres, a mother and asylum seeker who fled from El Salvador and has rebuilt her life in Colorado.
“I can finally feel safe. I can finally talk. My daughters can finally play,” said Mirna. “I would really like to become a nurse. And my dream is to help my daughters strive forward and fulfill their dreams.”
Read her full story here and watch her video below.
One of my sabbatical goals has been to read an immigration book a week. Six months in, I've finally read a single book. Lucky for me, I picked up My Trials: Inside America's Deportation Factories by former CARCEN attorney, immigration clinic director, refugee officer, and immigration judge Paul Grussendorf. Y'all, this book did not disappoint.
The Forward to the book notes that it is self-published and intentionally so. Grussendorf observes that publishing with a traditional outlet would have required taking out "political content" and turning the work into more of a "scholarly treatise." Grussendorf wasn't having that, and we are so lucky he made the choice he did.
The book is so spicy you will fly through its pages.
Consider Grussendorf's take on government attorneys, whom he berates for "taking outrageous positions that are absurd in their posture, except that the results are devastating for the poor immigrants[.]" (p. 60) He talks about his struggle with "the kinds of abuses that were taking place in my courtroom by government lawyers, including a general lack of respect for, and a calculated attempt to demean and degrade the individuals who were on trial[.]" (p. 149). He saw too many "young, overzealous attack-dogs". (p. 149) In another passage, Grussendorf talked about the failure to exercise reasonable prosecutorial discretion, noting: "I never understood whether the responsible official was mean spirited, a moral coward, or just afraid of being perceived by her peers as soft on criminals." (p. 222)
Grussendorf also calls out "abusive" IJs (p. 60), arguing that "incredibly inept, culturally insensitive, and actually harmful judges should not be allowed to 'torture' people (an apt and legally correct use of the term) in their courtrooms, with no oversight or censor from management." (p. 77-78). Among his examples: a former DOJ attorney who "had made the lives of others around him, including his superiors, so miserable that he had been promoted to the IJ slot to get him out of the office." (p. 72) Another: A female IJ who denied asylum to a woman subject to multiple rapes on the their that her abuse "had not been for political motives, but simply because men are apt to act like beasts." (p. 76)
Law professors do not escape Grussendorf's sharp takes. He calls out GW's faculty of "spineless worms" (p. 103) for working to close the school's immigration clinic. (That chapter alone was priceless.)
And don't put the book down before you reach the chapter about IJs frequenting a Guam strip club staffed by undocumented Asian strippers. (p. 173-4).
Beyond these gems, Grussendorf offers story after story of immigrants being ground up and spit out by the immigration system. It's a genuinely compelling, heartfelt read that I cannot recommend enough.
Immigration Article of the Day: Tried and (Inherently) Prejudiced: Disposing of the Prejudice Requirement for Lack of Counsel in Removal Proceedings by Ayissa Maldonado
Every year, hundreds of thousands of immigrants appear before the immigration courts in removal proceedings. Removal proceedings have long been scrutinized when it comes to ensuring immigrants who go through the immigration courts are afforded their rights—with good reason. Over the past few years, the immigration courts have been facing an existential crisis and have been dysfunctional, compromising the effectiveness of the court system. As a result, immigration judges often prioritize efficiency over ensuring noncitizens are afforded their rights and afforded a meaningful day in court. Among these rights this process has jeopardized includes the statutory right to counsel.
Although noncitizens have a statutory right to counsel in immigration courts, the government has no obligation to provide an attorney to those who cannot afford one. The problem is that immigration judges are denying the statutory right to counsel in removal proceedings; therefore, the noncitizens are appearing before immigration judges without a crucial procedural safeguard. Noncitizens who have counsel are more likely to seek relief from removal and actually win their case; therefore, it is important to recognize the distinctiveness of this right. The current system is inadequate and fails to give these noncitizens a fair and meaningful hearing.
As a result, the federal circuit courts are split as to whether the courts should require a noncitizen to show that they were prejudiced by lack of counsel in removal proceedings. This Comment argues that the federal circuit courts should not require prejudice when the immigrant has been denied their right to counsel because, under the Accardi Doctrine, an agency must abide by its own regulations when those regulations pertain to a party’s rights. The consequences of removal are similar in severity to those in criminal law; therefore, it needs to be ensured that immigrants have the right to counsel if they have not expressly waived it in order to effectuate a meaningful hearing. Not only are the consequences of removal severe, but immigration system is already inherently prejudicial to the immigrant such that proving prejudice would be a waste of resources. Immigration laws are complex and filled with subjective standards, the impartiality of the immigration courts has been questioned, and the immigration courts have become increasingly weaponized over the past few years. Therefore, the federal circuit courts should not require an immigrant to show that lack of counsel prejudiced their proceedings.
Wednesday, February 24, 2021
Photo courtesy of the White House
Reuters reports that
"President Joe Biden [today] revoked a proclamation from his predecessor that blocked many green card applicants and temporary foreign workers from entering the United States.
Former President Donald Trump issued the bans last year, saying they were needed to protect U.S. workers amid high unemployment due to the coronavirus pandemic.
Biden rejected that reasoning in a proclamation on Wednesday rescinding the visa bans. The Democratic president said they had prevented families from reuniting in the United States and harmed U.S. businesses."
Here is the Biden Proclamation on Revoking Proclamation 10014 | The White House."
Cesar Garcia Hernandez on the Crimmigration blog critically analyzes the order issued by a federal judge in Texas granting a preliminary injunction yesterday blocking the Biden administration from implementing a 100-day pause on removals. The court previously blocked the pause in a temporary restraining order. The injunction, effective immediately, applies nationwide. My sense is that Professor Garcia is not a fan of the injunction. Can't say that I am either.