ImmigrationProf Blog

Ninth Circuit Court of Appeals Issues a Ruling in Fraihat v. US ICE

An earlier guest post by law professor Jasmine E. Harris discussed the case of Fraihat et. al. v. US ICE et al, a nationwide class action that challenges the denial of constitutional and statutory rights to people with disabilities in immigrant detention.  The complaint alleged that immigrant prisons operated in the face of the pandemic with "deliberate indifference" to the medical needs and health risks of detained persons. On April 20, 2020 the district court in the Central District of California issued a nationwide preliminary injunction ordering USCIS to take a number of steps to protect the medically vulnerable from COVID-19. 

On October 20, 2021, a three-judge panel of the Ninth Circuit reversed the district court's grant of the preliminary injunction. A copy of the decision is available here. 

Judge Marsha S. Berzon issued a dissenting opinion, concluding: "I am convinced that the district court did not err in determining that circumstances were potentially life-threatening for subclass members; that issuing an injunction would be in the public interest; and that Plaintiffs raised serious questions on the merits of their reckless disregard claim in light of these facts." 

IE

 

Conference: Detention, Incarceration, and Administrative Law

The Administrative Law Review is hosting a virtual symposium on October 29, 2021 that will explore important questions about the role of administrative law in detention and imprisonment. More info here. Register here.

KJ

Say It Ain't So, Joe: Despite Promises, Biden Looks a Lot Like Trump on Border Issues

Official White House Photo

Many immigration law professors were hopeful that the election of Joe Biden would bring changes in many Trump era immigration policies.  Law professors Sarah Sherman-Stokes and Lindsay M. Harris for Bloomberg are not keen on the Biden administration's continuation of the Trump administration's Title 42 policy.  Here is the gist:

"When it comes to U.S. border policy, President Biden touted changes from the Trump administration, but so far, he has adopted as his own one of the very worst Trump-era policies—Title 42 expulsions based on public health concerns, say immigration and asylum law experts and law professors Sarah Sherman-Stokes and Lindsay M. Harris."

KJ

Human Rights Watch Report: US Records Show Physical, Sexual Abuse at Border

Newly obtained United States government documents detail over 160 internal reports of misconduct and abuse of asylum seekers at the hands of U.S. officials, Human Rights Watch said in a report released today. The documents report abuse by Customs and Border Protection officers, Border Patrol agents, and Immigration and Customs Enforcement officials, primarily between 2016 and 2021.  

The 26-page report, “‘They Treat You Like You Are Worthless’: Internal DHS Reports of Abuses by US Border Officials,” details internal reports made by asylum officers within U.S. Citizenship and Immigration Services about the conduct of personnel in the immigration enforcement arms of their same parent agency, the Department of Homeland Security. Though heavily redacted, the reports, which Human Rights Watch obtained after litigation under the Freedom of Information Act, include allegations of physical, sexual, and verbal abuse, due process violations, harsh detention conditions, denial of medical care, and discriminatory treatment at or near the border.

KJ

DOJ Walks Back Immigration Judge Case Quotas

As part of an effort to speed up removals, the Trump administration imposed case annual quotas on immigration judges in job performance.  Numbers, not quality, of dispositions were the touchstone.   Needless to say, the quotas were heavily criticized. 

Grace Dixon for Law 360 ("DOJ Walks Back Trump-Era Quotas For Immigration Judges?") reports that the Presiudent Biden's U.S. Department of Justice has walked back the quotas imposed on immigration judges.  The Trump-era quotas were intended to expedite proceedings.

For the CNN report on this story, click here.

KJ

 

Case update: Citizenship for children of naturalized divorced parents

Law360 (October 18, 2021, 7:29 PM EDT) -- The U.S. Supreme Court on Monday vacated a Third Circuit ruling in a deportation case that barred a Yemeni man from acquiring citizenship through his naturalized but divorced parents, after the Biden administration said the lower court overlooked precedent.

Abdulmalik Abdulla, who had lived in the U.S. for nearly 30 years before he was deported in 2019, had fought deportation by claiming citizenship through his father, who became an American citizen while married to Abdulla's mother. But the Third Circuit ruled in August 2020 that Section 1432 of the Immigration and Nationality Act could allow Abdulla's claim only if his father had become a citizen after getting divorced. Appealing to a new BIA decision, In Matter of Douglas , Abdulla aruged Section 1432 allowed divorced parents to pass on citizenship to their children, regardless of when the parents became citizens. On the basis of the new pleadings, the Supreme Court vacated the Third Circuit judgment and remanded Abdulla's case for further proceedings.

The case is Abdulmalik Abdulla v. Merrick Garland, case number 20-1492, in the U.S. Supreme Court.

MHC

Facebook Settles With DOJ Over Discrimination in H1-B Hiring

Amanda Ottaway for Law360 ("Facebook Inks $14M Deal To End Feds' Anti-US Bias Claims") reports that Facebook has agreed to pay up to $14.25 million in a settlement with the U.S. Department of Justice.  Facebook was alleged to have unlawfully favored temporary visa holders over U.S. workers.  The settlement is the largest financial recovery ever under the Immigration and Nationality Act's anti-discrimination provisions.

Here is the Settlement attached.

Fqacebook's monetary payout, which includes a $4.75 million fine and a fund of up to $9.5 million for individuals impacted by Facebook's policy, resolves an administrative lawsuit claiming that it held thousands of high-paying job slots for foreign workers, made those jobs tough for U.S. workers to seek, and rejected the few who applied.  According to another news report, "The company allegedly employed a recruitment process that was intentionally designed to dissuade US workers from applying for positions it had set aside for temporary visa holders."

In a press statement, the Justice Department commented as follows:

"Under the DOJ settlement, Facebook will pay a civil penalty of $4.75 million to the United States, pay up to $9.5 million to eligible victims of Facebook’s alleged discrimination, and train its employees on the anti-discrimination requirements of the INA. In addition, Facebook will be required to conduct more expansive advertising and recruitment for its job opportunities for all PERM positions, accept electronic resumes or applications from all U.S. workers who apply, and take other steps to ensure that its recruitment for PERM positions closely matches its standard recruitment practices. Today’s civil penalty and backpay fund represent the largest fine and monetary award that the Division ever has recovered in the 35-year history of the INA’s anti-discrimination provision." (bold added).

KJ

2d Amendment Rights of Undocumented Migrants

Do undocumented migrants have Second Amendment rights? This is a question the 2d Circuit recently assessed in a case called Perez.

The Constitution protects "the right of the people to keep and bear Arms." Do undocumented migrants fall within "the people"?

Law360 has really comprehensive coverage of the issue in a recent article that quotes many of our very own immprofs. 

Deep Gulasekaram (Santa Clara) asks: "Can you interpret 'the people' as only covering citizens?... That's actually a fairly indefensible interpretation ​​if you think that the Second Amendment is an individual right of self-defense."

Lenni Benson (NYLS) says: "Citizen or noncitizen," the Perez case "is an example of the tremendous power of government to upend your life... At the core of this case, is this issue of how we treat, constitutionally, the people living amongst us."

Geoffrey A. Hoffman (Houston) comments: "You're now decreasing the Second Amendment with respect to immigrants. And what does that say about the First Amendment?... This decision could be interpreted, more globally, to implicate and undermine immigrants' rights in many different areas."

Geoffrey Heeren (Idaho) states: "It's this evolving trend to limit the definition of 'the people' to citizens... The way that the courts decide cases under the Second Amendment could bleed over into the analysis of other issues.... That goes to the heart of our democracy."

-KitJ

Changing Demographics in Long Island City

Long Island City in Queens is a burgeoning site for Asian food, cutlure, and politics in what is becoming a mecca for a new migrant community. According to the NY Times, there has been a fivefold increase in Asian residents in Long Island City since 2010 so that the Asian population of 11,000 is now one-third of the total city population. There are at least 15 Asian-owned businesses — including a Mandarin child care center and hair salon and several restaurants — that have opened in the neighborhood since March 2020.

Residents, many of whom are Chinese and Korean students (Japanese is the third largest ethnic group), are attracted by the close proximity to Manhattan and comparatively lower rents for luxury apartments.  They are changing the profile of the community from its Italian immigrant and artist roots.

MHC

At the Movies: Themes of immigration and family dominate Nigerian film Eyemofe

 

 

Here is a review of an immigration-themed film making the film festival rounds.  Eyemofe, by Nigerian twin brothers Chuko and Arie Asiri, ":showcases two movies in one, both tied to a quest to find a better life abroad. Daily life. However, daily life keeps getting in the way."  Here is the description of the film on the official movie website:

"Set in Lagos, Nigeria Eyimofe (This is My Desire) follows the stories of Mofe, a factory technician, and Rosa, a hairdresser, on their quest for what they believe will be a better life on foreign shores.

A passport, photos and a visa form recurring elements. The characters’ misfortunes are part of their everyday life and they are sketching out the need to leave Nigeria at the same time. At the bottom of the socio-economic ladder, status, money, gender, skin colour and family structures are inextricably connected. The longing for another life is but one thread in this complex mesh, a promise that floats above things at once near and far away."

One reviewer of the film mentions that "One of 17 contenders for the top prize, the Stallion of Yennega, at FESPACO, the Pan-African film festival in Ouagadougou, `Eyemofe', or `This is My Desire' in Yoruba, is one of the few English-language offerings, and a movie not to be missed."

KJ

"Fake heiress" Anna Sorokin has been jailed by ICE for 7 months

Here is an out of the box immigration detention story from The Insider.  Anna Sorokin has been in Immigration and Customs Enforcement detention for seven months.  Sorokin, a German national who hit the headlines (and here) when she scammed New York's SoHo scene pretending to be heiress "Anna Delvey," was released from state prison in February after serving a sentence on theft and larceny charges.  In March 25, ICE detained Sorokin because she had overstayed her visa.  An immigration court ruled that Sorokin should remain in custody pending deportation.

Months later, Sorokin still has not been deported to Germany. She remains detained.  Her attorney, Audrey A. Thomas, has appealed the removal order.

Sorokin is the subject of the BBC podcast Fake Heiress.

KJ

Supreme Court Sends Derivative Citizenship Case Back to Third Circuit

Official Supreme Court website

Amy Howe on SCOTUSBLOG reports that 

"At the suggestion of the Biden administration, the justices sent a case involving derivative citizenship – that is, citizenship for children born outside the U.S. whose parent becomes a U.S. citizen after their birth – back to the lower courts for another look. The case arose after the petitioner, Abdulmalik Abdulla, who was born in Yemen to Yemeni parents and came to the United States as a lawful permanent resident, was convicted on fraud charges and sought to ward off deportation by contending that he had obtained U.S. citizenship through his father, who had become a U.S. citizen when Abdulla was 10 years old."

The case is Abdulla v. Garland.   The Supreme Court granted the petition for certiorari granted, vacated the judgment vacated, and remanded to case to the U.S. Court of Appeals for the Third Circuit for further consideration.

KJ

Kidnapping on Rise in Haiti

Conditions in Haiti have led many to flee the island.  Things do not seem to be getting any better in the troubled country.  As Maria Abi-Habib and Ruth Graham report for The New York Times, incidents of kidnappings and ransoms have spiked in Haiti. In addition to a group of 16 American missionaries who were taken over the weekend, gangs are controlling much of Port-au-Prince, "kidnapping children on their way to school and pastors in the middle of delivering their services." As a reminder, last month, the U.S. removed thousands of Haitians from Del Rio, Texas, returning many of them to Haiti.  

KJ

Presidential Determination on Refugee Admissions for Fiscal Year 2022

Official White House Photo

The Biden administration has released the Presidential Determination on Refugee Admissions for Fiscal Year 2022 (and here). It provides, in relevant part, that:

"By the authority vested in me as President by the Constitution and the laws of the United States, in accordance with section 207 of the Immigration and Nationality Act (the “Act”) (8 U.S.C. 1157), and after appropriate consultations with the Congress, I hereby make the following determinations and authorize the following actions:

The admission of up to 125,000 refugees to the United States during Fiscal Year (FY) 2022 is justified by humanitarian concerns or is otherwise in the national interest.

The admissions numbers shall be allocated among refugees of special humanitarian concern to the United States in accordance with the following regional allocations:

 Expand Table

	Africa	40,000
	East Asia	15,000
	Europe and Central Asia	10,000
	Latin America/Caribbean	15,000
	Near East/South Asia	35,000
	Unallocated Reserve	10,000

 

The numbers are an increase from previous years and was the response was generally favorable.

KJ

Trouble in Paradise? Tensions Flare between Biden Administration Officials and Immigrant Activists

Alex Thompson for Politico reports on a blowup between Biden immigration officials and immigrant rights activists.  And there is trouble in paradise.

Thompson reports that dozens of immigration advocates walked out -- at least virtually -- on Biden officials yesterday in protest of the administration’s decision to continue border policies enacted during the Trump administration. The meeting was by the administration’s plans, pursuant to court order, to reinstate Migrant Protection Protocols, also known as the “Remain in Mexico” policy.

Tensions between the Biden administration and immigration advocates have been escalating for months. Activists are increasingly convinced that the administration’s decisions are being driven largely by politics and that senior White House officials see the border as a potentially toxic issue for Democrats. “I think they're afraid of the backlash of anti-immigrant groups, and we'll continue to remind them that that backlash will exist regardless of what they do,” said Luis Guerra, the 32-year-old strategic capacity officer at the Catholic Legal Immigration Network who walked out of the meeting. “We don't actually believe they're doing everything in their power to actually restore asylum at the border, the way that they say that they're trying to.”

 

KJ

Guantánamo’s Other History

The Biden administration's harsh treatment of Haitian migrants on the U.S./Mexico border has been in the news.  The current crisis at the southern border is only the latest stage in a decades-long legacy of brutal treatment of Haitians and others by the U.S. government.

Jeffrey S. Kahn in the Boston Review reviews the long history of detaining asylum seekers at Guantánamo.

KJ

Biden Administration to Bring Back "Remain in Mexico" Policy pursuant to Court Order

Official White House Photo

CBS News reports that the Biden administration will reinstate a Trump-era border policy in November that forces asylum seekers to stay in Mexico while the U.S. immigration courts decide their claims.

The decision comes after the Supreme Court declined the administration’s request to block an order by a federal judge to reinstate the policy, leaving the administration.

The “Remain in Mexico” policy was first implemented in 2019 by former President Donald Trump to deter Central American families from crossing the southwest border. 

On his first day in office, President Joe Biden ended the policy, known as Migrant Protection Protocols, or MPP. He called it inhumane due to the violence migrants faced while waiting in Mexico, often in dangerous cities with few resources.

KJ

Good News, Bad News: Biden Narrows Expedited Removal, Continues Title 42 Expulsions

Ali Noorani from the National Immigration Forum shared this news in an e-mail blast earlier today:

"First the good news: The Biden administration has suspended its use of a Trump-era policy that allows for arrest and rapid deportation without an immigration hearing, reports Hamed Aleaziz of Buzzfeed News. The expanded expedited removal policy applied nationwide, rather than close to the border only, and "anyone who could not prove that they had lived in the U.S. for longer than two years" was at risk. Now the not so good news: Data underscore the lack of due process for immigrants expelled under the pandemic-era Title 42, as Camilo Montoya-Galvez of CBS News reports. There have been 1,163,000 expulsions under the policy — and only 3,217 migrants referred to asylum officers for interviews. `Migrants are being prevented from exercising a basic human right, which is to apply for asylum," said Michael Knowles, president of a union that represents hundreds of U.S. government asylum and refugee officers.'"

KJ 

Afghan Immigrants in the United States

Jeanne Batlova for Migration Policy Institute in Afghan Immigrants in the United States includes information on Afghan immigrants in the U.S.  "The dramatic evacuation from Afghanistan may bring more than 50,000 new Afghan immigrants to the United States, according to government predictions. These new arrivals would join a small but growing population of Afghans in the United States, most of whom have arrived since 2010. This article provides insights into this immigrant group, many of whom arrived on the Special Immigrant Visa."

Figure 1. Afghan Immigrant Population in the United States, 1980-2019

KJ

ABA Commission on Immigration offers students "hands-on" experience with people in detention

Amanda Robert for the ABA Journal reports on great opportunities being provided to college and law students by the ABA Commission on Immigration’s Detention and Legal Orientation Program Information Line.  Student interns help with calls from immigrants and refugees who are detained in more than 200 facilities across the country.  They also help pull together information that the detained noncitizens need for their cases, such as how to apply for asylum or how to appeal a denial of asylum. These services are free for detainees who reach the information line.

KJ