Friday, December 31, 2021
Immigration law professors around the country had a whole lot to celebrate in 2021. Check out these professional developments.
- Ahilan Arulanantham got his first full-time academic job in 2021: Professor from Practice and Faculty Co-Director at UCLA's Center for Immigration Law & Policy
- Jennifer Chacón joined Berkeley Law. Before leaving UCLA for NorCal, Jennifer was selected by the students as "Professor of the Year" - the faculty speaker for UCLA Law's 2021 graduation!
- César Cuauhtémoc García Hernández lateraled to Ohio State University from Denver.
- Talia Inlender joined UCLA as the Deputy Director of the Center for Immigration Law and Policy.
- Faiza Sayed joined the Brooklyn Law School faculty as an Assistant Professor in Sept. 2021. She is teaching the Safe Harbor Project (the school's immigration clinic) as well as Refugee Law.
- David Baluarte (W&L) was promoted to full Clinical Professor of Law. (He received tenure in 2018).
- Lindsay Harris (UDC) received tenure and promotion to full professor
- Elizabeth Keyes (Baltimore) received a faculty vote in support of her promotion to full professor. We look forward to celebrating the official promotion in 2022.
- Richard Middleton (UM-St. Louis, SLU) was promoted from Associate Professor to full professor.
- Natalie Nanasi (SMU) received tenure and was promoted to Associate Professor.
- David Baluarte (W&L) is in his third (and final!) year serving as Associate Dean for Academic Affairs.
- Lindsay Harris (UDC) began serving as Associate Dean of Clinical and Experiential Programs.
- Laila Hlass (Tulane) left her role as Director of Experiential Learning & Public Interest Programs, and she was appointed to a new half-time administrative role as Associate Provost for International Affairs.
- Joe Landau became Associate Dean for Academic Affairs at Fordham.
- Rebecca Robichaud became Wayne State's Director of Clinical Education.
- Rachel Settlage became Wayne State's Associate Dean for Academic Affairs.
- Jonathan Weinberg, just today!, stepped down from the job of Associate Dean for Faculty Research and Development at Wayne State, returning to the regular faculty.
- Nora V. Demleitner has left the legal academy. Starting January 1, she will be president of St John’s College, Annapolis.
- In 2021, the University of Maryland Carey School of Law received a $5 million dollar gift to establish the Chacón Center for Immigrant Justice.
Congratulations to all! Let's be sure to raise a glass at the AALS immprof social on Friday, January 7.
Long-time Senate Majority leader Harry Reid (D-Nevada) passed away this week and is being memorialized in warm terms. Ruben Navarette Jr. challenges some of Senator Reid's positions on immigration. He notes that
"[I]n 1993, Reid introduced sinister legislation that would have countermanded the 14th Amendment and denied birthright citizenship' to the U.S.-born children of undocumented immigrants. Using language typically heard from Republicans, he argued that no sane country' would allow such a practice."
Navarette questions Senator Reid's commitment to immigration reform and criticizes his actions on reform as Senate majority leader. I think that he is overly harsh on Reid, who shared the views of many Democrats on immigration that are contrary to the Democratic Party mainstream today. Remember that Democratic President Bill Clinton signed into law extremely harsh 1996 immigration reforms -- reforms that continue to have harsh impacts on immigrants today. As Dara Lind wrote for Vox, "in 1996 — fresh off the heels of signing welfare reform, and two years after signing the `crime bill' — President Bill Clinton signed a bill that overhauled immigration enforcement in the US and laid the groundwork for the massive deportation machine that exists today."
Thursday, December 30, 2021
Immigration Article of the Day: We Broke It, We Own It: How To Meet The Climate Migration Future by Elizabeth Keyes
Check out this essay by immprof Liz Keyes (Baltimore) over at Alchemist: We Broke It, We Own It: How To Meet The Climate Migration Future.
Liz starts by acknowledging the problem of climate migration, which is: "already forcing people to seek new places to live." It is a problem that is going to impact a great many people -- as many as 143 million within coming decades according to one source she cites. As a result, "climate migration will be of a scale where governments have no choice but to act."
Liz then transitions to American history for an example of how to deal with climate migration. And it's one that hits close to home for this Okie -- the migration of Dust Bowl refugees from Oklahoma to California in the early 1930s. California resisted this migration, taking active steps to thwart it. But, ultimately, the migrants successfully integrated into the state.
Liz highlights the important role of the 1941 U.S. Supreme Court's decision of Edwards v. California, in which the court held that states could not prevent migration from other states. Even given the unique circumstances of the Dust Bowl migration, which had "staggering" costs (fiscal and social), those costs could not justify “attempts on the part of any single State to isolate itself from difficulties common to all of them."
That Supreme Court holding, Liz notes, has been incredibly important to protect internal migrants fleeing from climate-related events like Hurricane Katrina, California's wildfires, and Hurricane Maria.
She argues the reasoning of Edwards could also be brought to bear on the larger, international problem of climate migration.
It's a wonderful piece, and I won't ruin it by trying to summarize it moment for moment. I urge you to read the entirety.
Today the Biden administration filed a petition for a writ of certiorari before the U.S. Supreme Court. The petition, which asks to review a decision of the Fifth Circuit court of appeals, addresses issues relating to the Migrant Protection Protocols, commonly known as the "Remain in Mexico" program. The program allows asylum seekers to be sent to Mexico to wait for their asylum hearings, confronting dangerous and uncertain conditions. The Biden administration sought to terminate the program in June 2021, but was subsequently ordered by the courts to reinstate and continue implementation of the program.
The administration's petition, which is available here, reviews the legal background of the program, the court of appeals' decision, and the issues that remain for the Court's review.
The administration asks the Court to set argument for this Term, explaining that:
The district court’s extraordinary injunction compelling the Executive to negotiate with a foreign sovereign and implement a nationwide, discretionary immigration program has been in place since August and will remain in place until this Court intervenes. The court of appeals’ unprecedented construction of Section 1225 threatens further significant disruption in other cases where parties seek to upend the government’s policies regarding immigration detention and parole. Delaying review until next Term would likely postpone resolution of those critical issues until sometime in 2023. In the meantime, the government would be forced to continue negotiating with Mexico to maintain a controversial program that it has already twice determined is no longer in the best interests of the United States. “Our constitutional system is not supposed to work that way.”
The summary for the article is here:
In the article, Professor Ray sets out how the immigration bureaucracy stops, or indefinitely postpones, the issuance and execution of huge numbers of removal orders through the use of various administrative devices, including deferred action, administrative closure, and orders of supervision. She then explains the problematic feature of these discretionary tools as a rule-of-law matter: though these shadow sanctions mitigate the harshness of deportation, they are still doled out in an entirely opaque and often arbitrary way.
According to the "jot," the article provides a keen focus on executive branch agencies and immigration bureaucracy: "In this era of whiplash and litigation concerning immigration law’s enforcement priorities, the vast, uneven, and ill-understood system of sanctions and lenience examined by Ray will continue to play a major role, whether the public knows about it or not. Immigration law’s system of shadow sanctions, she shows, is both inevitable and imperfect—but the tools of administrative law may fruitfully be harnessed to improve it. In seeking to narrow the gap between immigration law and ordinary administrative law, Ray’s exploration and critique of these discretionary tools of immigration enforcement places a much-needed spotlight on the immigration bureaucracy’s own “shadow dockets.”"
The big news yesterday was that a federal jury in New York convicted Ghislaine Maxwell, a socialite charged with sex trafficking and aiding Jeffrey Epstein’s sexual abuse. Maxwell was found guilty of sex trafficking of a minor, transporting a minor with the intent to engage in criminal sexual activity and three related counts of conspiracy. She was acquitted on the charge of enticing a minor to travel to engage in illegal sex acts.
News reports suggest that Maxwell, who has lived in the United States for many years, has U.S., French, and British citizenship. In an attempt to obtain bail and release from custody pending her trial, she offered to renounce her UK and French citizenship. The offer was one of many attempts by Maxwell’s lawyers to secure bail for her. “If the court deems it a necessary condition of release, Ms Maxwell will formally commence the procedure to renounce her foreign citizenship,” her lawyers wrote in a court motion. Renunciation of her British and French citizenship, according to Maxwell’s lawyers, “should satisfy any concerns the court may have that Ms Maxwell may try to seek a safe haven in France or the United Kingdom.” Prosecutors opposed the bail request, which the court denied.
Disillusionment and disappointment: Biden's White House struggles to find its footing on immigration
"President Joe Biden kicked off his administration with lofty goals to revamp America's immigration system, but with the end of the year approaching, lawsuits and infighting have stalled policy changes, officials have fielded criticism from allies and critics over management of the US southern border, and efforts to pass immigration revisions seem farther away.
Wednesday, December 29, 2021
The end of the year brings many lists: top movies, top books, and top restaurants. Atop the Salt Lake Tribune's top ten 10 movies for 2021 list is an animated film named Flee.
Flee begins with the story of a refugee, Amin, who leaves Afghanistan for Denmark. It describes through its protagonist the risks of unauthorized migration: deportation, of course, and also broken relationships as a result. The official trailer is available on IMDb and other sites.
One generalization about immigrants that is often true is that they come from different places and therefore speak different languages.
Those who come to the US as adults lack the same opportunities to learn English that their children have in K-12 public schools, where civil rights laws since Lau v. Nichols require that educational access not be denied on the basis of language.
A happy news story from pandemic times is that the provision of educational software and computers to English language learners during remote learning benefitted parents as well as children. Linking, Empowering, and Advancing Families (LEAF) is a partnership between metro schools and community groups in Nashville, Tennessee that offered such classes. As word got around, classes filled and overflow interest channeleed into other classes. The convenience of home computing or even learning on a smart phone while on-the-go expanded the reach of the program. As a result students began to learn practical vocabulary for ordering food at a restaurant, shopping, and working. Teachers are able to encourage them in their learning.
The Uyghur Forced Labor Prevention Act was signed into law on December 23. The law is designed to "ensure that goods made with forced labor in the Xinjiang Uyghur Autonomous Region of the People's Republic of China do not enter the United States market."
U.S. Secretary of State Blinken described the law as "underscoring the United States’ commitment to combatting forced labor, including in the context of the ongoing genocide in Xinjiang." Blinkin's full press release about the law (substantially longer than Biden's) reads as follows:
The State Department is committed to working with Congress and our interagency partners to continue addressing forced labor in Xinjiang and to strengthen international action against this egregious violation of human rights. This new law gives the U.S. government new tools to prevent goods made with forced labor in Xinjiang from entering U.S. markets and to further promote accountability for persons and entities responsible for these abuses.
Addressing forced labor has been a priority for this Administration. We have taken concrete measures to promote accountability in Xinjiang, including visa restrictions, Global Magnitsky and other financial sanctions, export controls, Withhold Release Orders and import restrictions, and the release of a business advisory on Xinjiang – all while rallying allies and partners to take joint action to ensure all global supply chains are free from the use of forced labor, including from Xinjiang.
We will continue doing everything we can to restore the dignity of those who yearn to be free from forced labor. We call on the Government of the People’s Republic of China to immediately end genocide and crimes against humanity against the predominantly Muslim Uyghurs and members of other ethnic and religious minority groups in Xinjiang.
Twenty years have passed since the tragic events of September 11, 2001.
Latino USA looked at that day's immigration legacy, which is listed among the Latino USA episode highlights for 2021. The episode offers many perspectives about 9/11's impacts on immigration.
"One of my most memorable stories of 2021 is `9/11’s Immigration Legacy,' produced by Julieta Martinelli, Alejandra Salazar, and Victoria Estrada. I love this piece for several reasons, including its bold sound design —which we plan to do more in 2022— but mainly because it was a collaborative effort. I loved to see our producers working on this three-part show that weaved in so well together while preserving their different storytelling styles. Furthermore, the piece sheds light on the long-lasting and often overlooked effects of that tragic day on the lives of so many people, a different take on the traditional 9/11 annual story, and the kind of which only very few media outlets dare to do. — Andrea López Cruzado, Senior Editor
Ahead of the 20th anniversary of 9/11, Latino USA‘s team of producers met to plan out the story we wanted to tell. Moving forward, we put together a stunning, hour-long exploration of 9/11’s impact on U.S. immigration policy—and every producer played a role in the making of this piece. This was a fully collaborative effort, and it was only as good as it was because we took it on together. I am so proud to be a part of this team, and episodes like this are exactly why. — Alejandra Salazar, Assistant Editor and Associate Producer"
Escalating Jailhouse Immigration Enforcement: A Report on Detainers Issued by ICE Against Persons held by Local Law Enforcement Agencies in Georgia, North Carolina, and South Carolina from 2016-2018
Earlier this year, Priya Sreenivasan and Azadeh Shahshahani of Project South, together with Jason A. Cade of the University of Georgia School of Law issued a new report, titled "Escalating Jailhouse Immigration Enforcement: A Report on Detainers Issued by ICE Against Persons held by Local Law Enforcement Agencies in Georgia, North Carolina, and South Carolina from 2016-2018." Numerous Georgia Law students also contributed to researching and writing the report while participating in the Community Health Law Partnership clinic at the University of Georgia School of Law.
The report analyzes data data from two Freedom of Information Act requests submitted by Project South and the University of Georgia School of Law’s Community HeLP Clinic.
Here are some of the report's findings, as highlighted in the Executive Summary:
This report analyzes the 35,916 ICE detainers that were issued between Fiscal years 2016 and 2018 in Georgia, North Carolina, and South Carolina, as well as the state bills and local policies that foster cooperation between ICE and local law enforcement in these states. Between FY 2016 and FY 2018, the number of detainers issued by ICE doubled in North Carolina, nearly tripled in South Carolina, and nearly quadrupled in Georgia. At least half of these detainers (18,099) resulted in people being jailed in immigration detention facilities and the majority of detainers were issued to persons originating from Latin American countries. Almost 93% of ICE detainers were issued to local law enforcement agencies such as county jails, detention centers, or sheriff's departments, at a total cost of millions of dollars per year.
Local law enforcement agencies routinely jailed immigrants on behalf of ICE even in the absence of formal agreements to collaborate in place. Only three of the top ten local law enforcement agencies with the highest rates of detainer requests across the three states had active 287(g) agreements during the time period of the report. On average, individuals with detainers were held in local jails for a significant period of time, ranging from two weeks to one month. Individuals who were eventually transferred to ICE detention centers were held in jail for longer periods of time, ranging from an average of 19 days to 43 days. The impact of these ICE detainers on local communities was severe. Thousands of immigrants were detained as a direct result of these collaborations. According to the government’s own data, at least 189 of those for whom ICE issued detainers turned out to be not legally subject to removal proceedings, due to U.S. citizenship or other lawful immigration status. Further, the data also show that at least three individuals died while incarcerated subject to a detainer during the time period of this study.
Human rights abuses in ICE detention centers are well documented, and investigative reports have increasingly revealed poor health conditions, abuse, and other problems within local jails. As the data in this report demonstrate, ICE’s collaboration with local law enforcement has also had a costly and detrimental impact on communities in these states. For these reasons, this report closes with specific recommendations, including calls to end local law enforcement agencies’ involvement in federal immigration enforcement and to eliminate immigrant detention.
Tuesday, December 28, 2021
Official White House Photo
The Biden administration today issued "A Proclamation on Revoking Proclamation 10315," which after the initial outbreak of the Omicron variant of COVID-19, imposed a travel ban from South Africa and a number of other nations The State Department offers a capsule summary:
"On December 28, 2021, President Biden signed a Presidential Proclamation titled “A Proclamation on Revoking Proclamation 10315.” This proclamation, which will take effect at 12:01 am Eastern Standard Time on December 31, 2021, revokes Presidential Proclamation (P.P.) 10315, which suspended the entry of certain noncitizens traveling as immigrants or nonimmigrants who were physically present in Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe during the 14-day period prior to their entry or attempted entry into the United States.
Pursuant to President Biden’s proclamation, as of January 1, 2022, P.P. 10315 will no longer prevent visa issuance to individuals subject to that Proclamation. Consular sections in Botswana, Eswatini, Lesotho, Malawi, Mozambique, Namibia, South Africa, and Zimbabwe will resume routine nonimmigrant and immigrant visa services to the extent they are able. Applicants whose cases were refused solely due to their presence in a country covered by a regional COVID proclamation should contact the embassy or consulate where they made the application to request reconsideration.
. . . .
The global vaccination requirement for all adult foreign national travelers announced in Presidential Proclamation 10294 remains in effect. All non-immigrant, non-citizen air travelers to the United States are required to be fully vaccinated and provide proof of vaccination status prior to boarding an airplane to the United States. Additionally, air travelers aged two and older, regardless of nationality or vaccination status, are required to show documentation of a negative viral test result taken within one day of the flight’s departure to the United States before boarding. You must show your negative result to the airline before you board your flight. That includes all travelers – U.S. citizens, lawful permanent residents (LPRs), and foreign nationals." (bold added).
CNN reports that
"The travel restrictions had come under fire across the globe, described by United Nations Secretary General António Guterres as `travel apartheid.' Biden administration officials repeatedly defended the move as an action to give the US more time to understand the [Omicron] variant and its spread.
`The travel restrictions imposed by that proclamation are no longer necessary to protect the public health,' Biden said in the new proclamation."
Official White House Photo
President Biden is being criticized from the left and the right on immigration. Aline Barros for Voice of America describes the criticism in an even-handed analysis of the Biden administration immigration record. She notes that President Biden ended the construction of the border wall between the United States and Mexico but continued the Title 42 public health exclusion policy. As Barros states, "[i]mmigrant advocates say Biden has added some humanity to America’s immigration system but credit him with little else."
The Immigration Article of the Day is "The Unexamined Law of Deportation" by David Hausman, forthcoming in 2022 in the Georgetown Law Journal. Here is the abstract from SSRN:
Prioritization by criminality, in which noncitizens who have been convicted of serious crimes are deported ahead of those with little or no criminal history, is the most consequential principle governing who is deported from the interior of the United States. That principle of internal administrative law has rarely been questioned. This Article argues that, intuitive as prioritization by criminality may appear, it is only rarely justifiable.
I show, empirically, that the interior immigration enforcement system is successful at such prioritization. Being convicted of a crime makes deportation at least a hundred times more likely. And I show that center-left attempts to reduce deportations over the last decade have sharpened this prioritization: both sanctuary policies and President Obama’s Priority Enforcement Program, which caused the two largest reductions in interior immigration enforcement in the last decade, prioritized deportations by criminality.
Because well under one percent of undocumented noncitizens are deported in any given year, some principle for prioritizing enforcement is needed—but criminality should not be the primary principle. First, the crime control rationales for punishing noncitizens more severely than citizens convicted of the same crime are surprisingly weak. Second, the immigration policy rationale for prioritization by criminality is strongest among recent entrants to the United States. The longer a noncitizen has lived in the United States, and the stronger his or her ties here, the less deportation resembles a retroactive admission decision and the more it resembles additional punishment. Finally, the relationship between ties and criminality is asymmetric: there are better arguments for deporting people with weak ties and no convictions than for deporting people with strong ties and serious convictions.
If noncitizens convicted of crimes were mostly recent entrants, then the current prioritization might make sense. But the limited existing evidence on deportees’ ties to the United States suggests that prioritization by criminality leads the government to target people with deep roots in this country. The result is that interior immigration enforcement functions more as a method of social control of noncitizen residents than as a tool of immigration policy.
The ImmigrationProf blog obviously focuses on developments in immigration law and policy. Marcela García for the Boston Globe reports claims that mainstream news reporting generally neglected reporting on immigration in 2021. She writes:
Thousands of immigrants seeking safety in the United States keep getting expelled at the US-Mexico border, which means some of them are living in overcrowded shelters and shantytowns and makeshift encampments [in Mexico] . . . . The expulsions have been enabled largely by Title 42, the rule that allows border officials to turn away asylum seekers on public health grounds.
Our country’s vast and complex immigration system is incontrovertibly broken: Millions of residents live in the shadows without status and yet keep contributing to our economy — many of them as essential workers. Then there’s the trauma that immigrant parents and their children continue to suffer after being separated at the border. The federal government reportedly stopped negotiating a potential monetary settlement with the families, which would have helped repair the harm it so cruelly inflicted on them.
Does that sound like a flashback to Trump’s America circa 2018? Yes, but it’s also the status quo of immigration policy under President Biden. And it stands as one of the most neglected news stories of 2021."
THE MOST UNDERREPORTED STORY OF 2021? Immigration, this reporter believes. And it could spell more political trouble for @POTUS Biden in 2022: “This is an issue he seems allergic to discussing when he’s asked about it or confronted with it.” pic.twitter.com/YCpmn32CTu— Ed O'Keefe (@edokeefe) December 27, 2021
Monday, December 27, 2021
The Editorial Board of the Washington Post has this opinion piece of interest: Afghans spending their first Christmas in America seek the miracle of kindness. They write:
Tens of thousands of Afghans, airlifted from Kabul over the summer, are now trickling into communities across our country...
Imagine their culture shock, not knowing a Safeway from a Sonic, a Walmart from a Walgreens. Christmas trees are a novelty, and they are everywhere. The English language is a daily mountain to climb.
This Christmas, spare a thought for an influx, happening quietly all around us, of people traumatized by war and an exit from their homeland so fearful and sudden that loved ones were often left behind....
Let this Christmas, these Afghans’ first, be a moment when they tap into this country’s innate generosity, so that the American Dream is as successful for them as it has been for so many who arrived before them.
Official White House Photo
Nolan Rappaport for the Hill reports that Paul Schmidt, former chair of the Board of Immigration Appeals who now blogs at Immigration Courtside, does not think that President Biden has done enough on immigration. Schmidt claims that Biden could have established due process and the rule of law at the border and expanded refugee programs in potential sending countries but he didn’t, “preferring instead to use modified versions of ‘proven to fail deterrence-only programs’ administered largely by Trump-era holdovers and other bureaucrats insensitive to the rights, needs, and multiple motivations of asylum seekers."
Isabel Reynolds for Bloomberg reports on immigration developments in Japan. "From a ban on new foreign arrivals to a campaign against efforts to let non-citizens vote, a series of developments in Japan is raising new concerns about xenophobia in Asia’s second-largest economy."
Earlier this week, lawmakers in a Tokyo suburb overruled the local mayor and rejected a bill that would have allowed residents of other nationalities to vote on some issues. Several prominent Liberal Democratic Party legislators had campaigned against the plan, with former Vice Foreign Minister Masahisa Sato warning on Twitter that “80,000 Chinese people” could move to the city and influence its politics.
Last month, the Japanese government initiated new border controls that ban new entries by foreigners due to concerns about the omicron variant of Covid-19. The U.S. Embassy in Tokyo issued a warning on December 6 about suspected racial profiling of foreigners by local police.
The incidents are feeding worries that Japan is souring on immigration as it approaches a third year of pandemic-driven border closures and economic upheaval. The government’s ban on arrivals by foreigners who lack existing residency status was backed by almost 90% of respondents in one poll.