Wednesday, February 24, 2021
Ahilan Arulanantham joins UCLA School of Law as co-faculty director of the Center for Immigration Law and Policy
UCLA School of Law announced today that Ahilan Arulanantham, one of the nation’s most respected advocates for immigrants’ rights, is joining UCLA School of Law as co-faculty director of the Center for Immigration Law and Policy and professor from practice. He goes to UCLA Law from the ACLU of Southern California, where since 2004 he led immigrants’ rights and national security advocacy and litigation. He was most recently senior counsel and, previously, director of advocacy/legal director.
The provisions of the U.S. Citizenship Act is getting lots of attention, from the change in alien terminology to a path to legalization for undocumented immigrants and more. Anna Giaritelli for the Washington Examiner, a self-declared conservative publication, notes five things that the Biden administration's comprehensive immigration reform bill does not address. Some of the omissions might bother readers; some might not:
1. Family and children detention protocols: The bill does not incorporate the Flores settlement governing the detention of immigrant minors. The Trump administration tried but failed to abrogate the settlement.
2. Border wall infrastructure: No surprise. The U.S./Mexico border wall, which President Trump championed, is not part of the bill's enforcement plans. The Biden administration already had made it clear that construction of the wall was not a priority of his administration.
3. Decriminalization of illegal entry into the United States: This was an issue in the 2020 Democratic presidential primaries. Representative Julian Castro called for the repeal 8 U.S.C. § 1325, which criminalizes unlawful entry into the country.
4. Immigration courts: The immigration bill calls for an additional 220 immigration judges but fails to make major improvements in the immigration court system, such as increasing their independence, neutrality, and professionalism of the corps of immigration judges. The American Bar Association has declared that the immigration court system is "on the brink of collapse."
5. No end to private-run detention facilities: Immigrant rights advocates have called for the end of private (for profit) immigrant detention. President Biden has ended private prisons for inmates.
Immigration Article of the Day: Capital Controls as Migrant Controls by Shayak Sarkar, California Law Review, Forthcoming
The disparate treatment of capital and labor reflects one of globalization’s central asymmetries: the law often allows financial capital, but not people, to move freely across borders. Yet scholars have largely neglected the intersection of these two regimes, the legal restrictions on migrants’ capital, particularly when the migrants themselves are deemed illegal. These restrictions on migrants’ capital abound even while migratory capital generally faces few such restrictions. As such, capital controls may operate as migrant controls.
This Article canvasses established and emerging examples of capital controls as migrant controls and the pressing legal questions these controls raise. Capital is guarded when remittances are taxed, particularly when the taxation is explicitly conditioned on immigration status. Capital is expelled when capital receipts, such as Social Security benefits, are made contingent on departure and non-residency. And capital is marginalized when financial laws require particular identity and immigration documents on penalty of exclusion from key financial services.
As I describe, such taxation, receipt contingencies, and identity requirements often distinguish on the basis of immigration status and implicate core questions in constitutional and immigration law. These questions include the scope of traditional state powers such as taxation; how such controls create unconstitutional choices and conditions; and how statutory and administrative ambiguities in banking law may marginalize migrants. More generally, these controls contribute to our understanding of who—Congress, federal agencies, municipalities and states, or social movements outside the law—controls, and who may legally control, American migration.
Tuesday, February 23, 2021
From ‘aliens’ to ‘noncitizens’ – the Biden administration is proposing to change a legal term to recognize the humanity of non-Americans
The Immigration and Nationality Act (INA) is the comprehensive U.S. immigration laws. It applies primarily o "aliens," a terminological word that in effect is the DNA of the INA. In an article in The Conversation, I look at a proposal that might change the terms of the entire discussion of immigration:
"A profound change has been proposed by the Biden administration for U.S. immigration law. Following up on candidate Joe Biden’s promise of immigration reform legislation, the U.S. Citizenship Act would eliminate the term `alien' from the U.S. immigration laws.
The country’s bedrock immigration law, the Immigration and Nationality Act, would be amended to say that `[t]he term ‘noncitizen’ means any person not a citizen or national of the United States.'
Some might think that terminology is not a big deal. But as a scholar of immigration and civil rights law, I believe that the one-word change could deeply influence Americans’ views about the rights of noncitizens and, by so doing, the future trajectory of immigration law and policy.
In forging immigration law and policy, it is far easier to deny the humanity of an `alien' than to do so for a “noncitizen.” The use of the word `alien' helps rationalize the severe treatment of noncitizens of color, from detention in cages, family separation and more."
California is also considering modernizing the law by eliminating the term "alien."
MALDEF STATEMENT ON ARIZONA CONGRESSMEMBER’S RACIST REMARKS ABOUT LATINOS AND COVID-19 VACCINES
Civil Rights Group Calls For Resignation of Rep. Lesko
(LOS ANGELES) – Congressmember Debbie Lesko (AZ -08) recently said that while Latinos are “good workers,” COVID-19 vaccinations should go first to “American citizens” before “people who are here illegally.” Her remarks were made in a U.S. House of Representatives Energy and Commerce Committee meeting during a discussion of a proposed amendment to a COVID-19 relief bill to prioritize citizens for vaccines. Lesko’s statement also came just days before the U.S. marked 500,000 COVID-19 deaths.
Please attribute the following statement in response to Lesko’s comments to Thomas A. Saenz, president and general counsel of MALDEF (Mexican American Legal Defense and Educational Fund):
“MALDEF calls for Rep. Debbie Lesko to resign her seat in the House of Representatives. Her recent remarks reflect an astounding, acquired ignorance of the people in her district; they also demonstrate a willingness to engage in false bias and stereotype in order to demonize people who have been on the frontlines nationally in confronting the devastating impacts of COVID-19.
“According to the most recent Census Bureau estimates, over 20 percent of Rep. Lesko’s constituents are Latino; moreover, over 90 percent of those Latino constituents are United States citizens. Yet, she felt it appropriate to conflate ‘Hispanic’ with ‘undocumented’ in an appalling display of the worst impulses of reductionist racial stereotyping.
“In addition, Rep. Lesko’s suggestion that ‘good workers’ should nonetheless be denied vaccination is simply a coded acceptance of the exploitation of Latino and immigrant workers that underlies too much of our formal and informal economy in this country. Of all racial/ethnic groups in the nation, Latinos have sustained the greatest personal and family impact of the pandemic; worker exploitation that involves the denial of life-saving inoculation is dehumanizing and cruel.
“Finally, Rep. Lesko’s remarks, which she has refused to retract, traffic in contemporary dog-whistle racism. After four years of Donald Trump and his transparent white nationalism, the nation should recognize that ‘citizen first’ policies are simply thinly-veiled pleas for perpetuating white privilege grounded in racism.
“Arizona deserves better representation in the Congress than that provided by Rep. Debbie Lesko, purveyor of blatant stereotyping and dog-whistle racism. She should resign in favor of someone who will speak for all Arizonans.”
Border Criminologies is hosting a knowledge exchange event for immigration clinical teachers from the US and UK on March 18, 2021. The link to register is here: Teaching Immigration Law: Law School Clinics in the US and UK (google.com).
Immigration Article of the Day: Statelessness as Rhetoric: The Case for Revisioning Statelessness in Our Statist World by Francis Tom Temprosa
This article argues that the definition of statelessness in international law should be changed. When the international statelessness regime was instituted, the ultimate goal was the full protection of unprotected persons who are not refugees. Yet, in our statist world, the definition of statelessness—as embodied in the 1954 Convention relating to the Status of Stateless Persons—has become rhetoric. Contrary to the claim that the definition is merely declaratory of a status, this article contends that the definition lends itself to having features and facets of a discretionary design of rhetoric. It does more than accord States with discretion. It also allows them to constitute and ordain who is stateless and therefore entitled to the benefits of the statelessness regime in international law—which ensures protection and rights. Principally combining insights from critical rhetoric as theory, this article also posits that ideologies animate and persist in the determinations of statelessness: 'formalism' and 'discretionism'. The definition, instead of being an emancipatory tool of international law, entrenches and reifies State power over citizenship matters.
Drawing on an analysis of the legal definitions of statelessness all over the world and different cases of stateless status determination, this article is the first to directly question and critically engage with the definition of statelessness in international law, theorizing on the definition in rhetoric and building the case for why it should be changed. It develops the connection between the definition of statelessness to ideographs, ideologies, and categories in order to analyze statelessness determinations. Existing literature on categories, labels, and definitions in the social sciences, refugee studies, and migration studies are incorporated in an interdisciplinary analysis.
This article thereafter proposes that the definition be 'revisioned'. A two- pronged protection framework that recalibrates the definition is suggested. The first prong turns the attention of the definition from formal protection to substantive and functional protection. A determiner of stateless status is allowed to look beyond mere formal protection, encouraging the piercing of the veil of citizenship in certain cases and placing nondiscrimination as a core tenet. The definition should also be tied to the right to nationality. The second prong reorients State responsibilities and duties in statelessness determinations, limiting the discretion of the State and assigning more duties to the international community as a whole. It takes into account the goal-oriented dimensions of the 1954 Convention relating to the Status of Stateless Persons and recommends ways forward to reimagine the concept of statelessness. If a State is allowed to consider who its citizens are and are not, as well as who is entitled to rights under the treaty on statelessness, then the State is more than a determiner of status; it is the giver of status, rights, and even life. The definition has to respond to this reality.
Monday, February 22, 2021
From the Bookshelves: Migrant Conversions: Transforming Connections between Peru and South Korea by Erica Vogel
Migrant Conversions: Transforming Connections between Peru and South Korea by Erica Vogel, University of California Press, 2020
Peruvian migrant workers began arriving in South Korea in large numbers in the mid-1990s, eventually becoming one of the largest groups of non-Asians in the country. Migrant Conversions shows how despite facing unstable income and legal exclusion, migrants have come to see Korea as an ideal destination, sometimes even as part of their divine destiny. Faced with a forced end to their residence in Korea, Peruvians have developed strategies to transform themselves from economic migrants into heads of successful transnational families, influential church leaders, and cosmopolitan travelers. Set against the backdrop of the 2008 global financial crisis, Migrant Conversions explores the intersections of three types of conversions—monetary, religious, and cosmopolitan—to argue that migrants use conversions to negotiate the meaning of their lives in a constantly changing transnational context. As Peruvians carve out social spaces, they create complex and uneven connections between Peru and Korea that challenge a global hierarchy of nations and migrants. Exploring how migrants, churches, and nations change through processes of conversion reveals how globalization continues to impact people’s lives and ideas about their futures and pasts long after they have stopped moving or after a particular global moment has come to an end.
A free open access ebook is available upon publication. Learn more at www.luminosoa.org.
Supreme Court News: Court to Review Public Charge Case, Hear Asylum Credibility Oral Arguments Tomorrow
Amy Howe on SCOTUSBlog reports that the Supreme Court today granted review in another immigration case:
"The justices also granted the federal government’s request to weigh in on the `public charge' rule, which governs the admission of immigrants into the United States. Federal immigration law prohibits noncitizens from receiving a green card if the government believes that they are likely to become reliant on government assistance – that is, a `public charge.' In 2019, the Trump administration defined `public charge' more broadly than in the past, to refer to noncitizens who receive various government benefits, such as Medicaid, food stamps or housing assistance, for more than 12 months over a three-year period. After two different federal courts of appeals ruled for the challengers, the federal government came to the Supreme Court, asking the justices to take up the case. . . . The Biden administration ordered a review of the public charge rule in early February."
At the Biden administration's request, the Court took the border wall funding and the Remain in Mexico cases off the oral argument calendar. It is hard to say but the same could happen in the public charge case if the Biden administration so moves again.
"In asylum cases before the immigration and federal courts, responsibility for making credibility determinations rests with the immigration judge. Immigration laws recognize that in asylum proceedings — as in other contexts — the trier of fact who directly hears a person’s testimony can best assess their credibility. In some cases, however, IJs decline to make explicit credibility findings when denying asylum. [I]n Wilkinson v. Dai and Wilkinson v. Alcaraz-Enriquez, the Supreme Court will consider the permissibility of the . . . 9th Circuit’s approach to these circumstances: When immigration courts fail to make an explicit credibility determination, the 9th Circuit treats the asylum seeker’s testimony as credible in its own review.
UPDATE (2/23, 1:30 PST): Here is the transcript to the oral arguments in the asylum credibility cases.
UPDATE (2/25): Eunice Lee for SCOTUSBlog recaps the argument for SCOTUSBlog. She summarizes as follows:
"The majority of the back-and-forth between the justices and advocates focused on granular factual and definitional issues. The justices seemed oft-unpersuaded by the distinctions between truth, persuasiveness and credibility drawn by the parties. Various hypotheticals and deep-dives into the evidence spurred somewhat unusual alliances, including a possible Thomas-Alito-Kagan-Barrett front . . . . Yet shared skepticism toward the parties’ key positions left the justices’ ultimate views on the 9th Circuit rule and the contours of federal review unclear."
U.S. Citizenship and Immigration Services (USCIS) announced that it was reversing a controversial civics test that the Trump administration put in place just weeks before it left office. The change will become effective March 1st (meanwhile, those who applied before Dec. 1, 2020 and Mar. 1, 2021, with an interview scheduled before Apr. 19, 2021, will be able to choose which test they prefer to take). UPDATE: A national webinar will be held on March 3, 2021 from 3:30-4:30 pm Eastern Time. To register, visit the USCIS public engagement registration page and select "event registration under subscriber preferences.")
Changes to the 2020 civics test had been criticized for being too lengthy and making it more difficult for immigrants with limited English proficiency. New questions also incorporated politicized or inaccurate answers. One such question indicated that members of Congress only represent citizens and not the entirety of their districts, including undocumented people or immigrants of other statuses.
A prior ImmigrationProf blog post on the 2020 changes appears here.
Immigration Lawyers Toolbox® is a new e-magazine available at this link.
Portions of the magazine may be a bit more practioner-focused than most immprofs need (e.g. "Opening a U.S. Immigration Law Office in Other Countries", "Facebook Marketing: How It Can Impact Your Immigration Law Firm", "A Little Known Follow Up Secret to Massively Growing Your Immigration Firm").
But some of the articles may prove quite useful to academics and students (e.g. "Cancellation of Removal: Proving Continuous Physical Presence and Avoiding Common Pitfalls", "The 212(h) Criminal Waiver: When Your Past Comes Back to Haunt You", "How to Make the Asylum Officer Love Your Client (and You) Before Setting Foot In Their Office").
There's even a Q&A with an ex-consular officer!
Watch this two minute video from Lexis Nexis about its new feature: Code Compare. Code Compare, as its name suggests, allows for easy comparison of current codes to prior iterations. I cannot think of a tool more useful to immigration scholars and students -- particularly those using an older statutory supplement who want to make sure what they have is still good law.
Human Rights Watch released a video recommending that the Biden administration should move swiftly to ensure fair, dignified, and humane treatment of asylum seekers and migrants at the border. The video follows a family still separated after almost two years under the “Remain in Mexico” program, also known as the Migrant Protection Protocols (MPP).
The video follows one family from El Salvador – Alejandro, Juliza, and their infant son, Anderson – who were separated at the border in 2019. US officials forced Alejandro to wait in Mexico while eight-months pregnant Juliza continued alone to claim asylum in the United States, where she was welcomed by the Iowa City Catholic Worker, a Gamaliel affiliate. Returned to one of the most dangerous cities in Mexico, Alejandro was kidnapped and abused, treatment that has become very common for migrants and asylum seekers in Mexico.
Violence against Asian Americans during the pandemic has been in the news. The reports also has highlighted tensions between African Americans and Asians with Black violence against Asians especially prominent in the news. Vivian Ho and Abene Clayton has thoughtful analysis ("`Black and Asian unity': attacks on elders spark reckoning with racism's roots"):
"Organizers in the Asian and Black communities have been quick to denounce this rhetoric and call for solidarity. Last weekend, hundreds gathered in the Bay Area to call for solidarity and pay homage to the victims, wearing shirts emblazoned with `Black and Asian unity.'
`Supporting our Asian community is not about dividing us. This support is for all of us suffering under white supremacy. We need to understand that so we can triumph and have public and personal safety,' said Eddy Zheng, an Oakland organizer and youth counselor.
But the issue is complicated and plucks at years of racial divisions.
Some Asian Americans are frustrated that discussion of attacks on Asians are being used as a teachable moment to discuss anti-Black racism. Others agree with Black Lives Matter activists that calling for more policing is the wrong approach to increasing community safety, and poses a threat to people of color."
In the Trump administration, former senior advisor to President Trump Stephen Miller advocated tough-as-nails immigration policies. Not surprisingly, the Daily Mail reports that Miller has been making the rounds criticizing President Biden's immigration reforms. He slammed the recently introduced immigration reform bill as the "most radical' bill ever written."
Miller, who served as Trump's immigration architect, spoke for nearly five minutes lambasting the bill while appearing in an interview with Fox News' Laura Ingraham. 'It is the most radical immigration bill ever written, ever drafted, ever submitted in the history of this country. It is breathtaking,' Miller said.
Immigration Article of the Day: The Political (Mis)representation of Immigrants in Voting by Ming Hsu Chen and Hunter Knapp
Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This essay describes several barriers facing immigrants and naturalized citizens that impede their political belonging. It critiques these barriers not on the basis of immigrants’ rights, but on the basis of the rights of semi-citizenship. By placing naturalization backlogs, voting restrictions, and reapportionment battles in the historical context of voter suppression, it provides a descriptive and normative account of the political misrepresentation of immigrants.
Sunday, February 21, 2021
Immigration Article of the Day: The Right to Kill: How Congress Can Solve the Problem Presented in Hernandez V. Mesa by David Rice
Sergio Hernandez was shot and killed by a Border Patrol agent in 2010. At the time of the shooting, Hernandez was standing on the Mexican side of the border while the agent was standing in United States territory. The Supreme Court of the United States recently decided in Hernandez v. Mesa that it would not extend the Bivens doctrine to include cross-border shootings and allow the Hernandez family to bring a civil action against the Border Patrol agent. The Supreme Court argued that it was up to the political branches, specifically Congress, to address this issue of cross-border shootings. Due to this holding, Mexican citizens currently have no avenues to bring claims in the event of any future cross-border disputes against Border Patrol agents.
This inability to bring a claim, when a cross-border shooting occurs, denies those affected the opportunity to receive any restitution when a Border Patrol agent takes the life of an innocent person. The legislation proposed in this Comment aims to solve this inability to bring an action when a cross-border shooting occurs. The legislation will amend 42 U.S.C. §1983 in two important ways. First, it changes the original language of §1983 to include federal agents. Next, it looks to the location of the agent accused of a constitutional violation instead of focusing on the location where the harmed individual was at the time of the violation.
This proposed legislation will allow for innocent citizens of Mexico appropriate access to the American judicial system to address the issue of cross-border shootings.
Saturday, February 20, 2021
Cristian Pavon came to the U.S. from Tela, Honduras in 2019, WaPo reports. He came to reunite with his mother in Texas, after a year apart.
Cristian enjoyed playing in the snow that blanketed Texas this past week. But the mobile home where he lived, like so many in Texas, lost power and heat. He went to sleep under a pile of blankets but never woke up. Authorities believe he died of hypothermia.
"began the first step in a phased approach to restore safe and orderly processing at the Southwest Border. DHS and its international partners have now initiated the virtual registration process for individuals who had been forced to return to Mexico under the Migrant Protection Protocols (MPP) and have a pending case before the Executive Office for Immigration Review (EOIR). The United States is continuing to strictly enforce existing immigration laws and border security measures. Individuals should not approach the border, including at designated ports of entry, unless and until they are approved and receive appointment information through the remote registration process."
Click the link above for the full announcement.
Immigration Article of the Day: Migrant-Family Separation and the Diverging Normative Force of International Law and Constitutional Law by Kevin L. Cope and Charles Crabtree
A growing experimental literature suggests that international law appears to have a larger impact on public opinion than constitutional law. We develop a theory to explain these seemingly counter-intuitive results. First, in studies that explore the impact of constitutional law, respondents may be “unsuccessfully treated.” Second, constitutional law treatments can trigger a backlash effect through defensive processing of information on constitutionality. To test our theory, we simultaneously test the normative effect of international law and law in relation to the policy of separating migrant families at the U.S. border. We fielded nationwide survey experiments in July 2018 and November 2020, asking respondents whether they supported the policy. Consistent with our theory, we find that telling people that the policy is unconstitutional increases support for the policy, but only when the issue was receiving heavy media coverage, and that international law has no comparable effect on public opinion.