Saturday, November 16, 2019
Attention comparative citizenship fiends! You've got to check out this BBC story. It's about Emilie Dubois, who moved from France to Quebec in 2012 to pursue a PhD.
Recently, Quebec denied Emilie's petition to become a Quebec citizen. Why? Because she "was unable to demonstrate adequate French-language proficiency."
Emilie is a native French speaker. Her doctoral program was at a French-speaking university. Her dissertation on cellular and molecular biology was written in French. Mostly. And that's apparently the problem.
One chapter of Emilie's dissertation was written in English. That's because it was published in an English-language scientific journal.
How this rises to the level of demonstrating a lack of French-language proficiency is anyone's guess. But it's a fabulous example for in-class discussion of comparative citizenship criteria.
By my count, there are nine non-consolidated immigration cases before the Supreme Court in the 2019 Term. This is the largest number of immigration cases before the Court in one Term in recent years. (For a review of the immigration cases decided during the 2009-13 Terms, click here.). That should not be surprising given the Trump administration's many immigration initiatives.
The three consolidated DACA cases are receiving the most attention. That is especially the case this week with numerous news reports and op/eds about the oral arguments in the DACA cases. However, there are other cases -- especially those involving judicial review -- which may have broader impacts on immigration law.
Here is the immigration line-up for the 2019 Term.
1. The DACA Cases: There are three consolidated cases in which three circuits found that the Trump administration's rescission of DACA was unlawful. My views about the case can be found here and here.
|Department of Homeland Security v. Regents of the University of California [Arg: ]
|Trump v. NAACP, [Arg: ]
|McAleenan v. Vidal, [Arg: ]
2. Bivens Claim for Cross Border Shooting: Hernandez v. Mesa. [Arg: ]
Issue: Whether, when the plaintiffs plausibly allege that a rogue federal law-enforcement officer violated clearly established Fourth and Fifth Amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. The case involves a shooting by a U.S. immigration officer of a Mexican youth who was on Mexican soli.
3. Judicial Review of Immigration Decisions. These four cases could have big impacts on the judicial review of agency immigration decisions.
Department of Homeland Security v. Thuraissigiam. Issue: Whether, as applied to the respondent, 8 U.S.C. § 1252(e)(2) is unconstitutional under the suspension clause. The case involves a challenge to expedited removal of an asylum seeker.
Nasrallah v. Barr. Issue: Whether, notwithstanding 8 U.S.C. § 1252(a)(2)(C), the courts of appeals possess jurisdiction to review factual findings underlying denials of withholding (and deferral) of removal relief. A decision in this case could affect judicial review of fact findings in many relief from removal cases.
Guerrero-Lasprilla v. Barr [Arg: ]: Issue: Whether a request for equitable tolling, as it applies to statutory motions to reopen, is judicially reviewable as a “question of law.”
Ovalles v. Barr, [Arg: ]. Issue: Whether the "criminal alien" bar, 8 U.S.C. § 1252(a)(2)(C), tempered by 8 U.S.C. § 1252(a)(2)(D), prohibits a court from reviewing an agency decision finding that a movant lacked diligence for equitable tolling purposes, notwithstanding the lack of a factual dispute.
4. Federal Preemption of State Immigration Enforcement Laws: Kansas v. Garcia. . Issues: (1) Whether the Immigration Reform and Control Act (IRCA) expressly pre-empts the states from using any information entered on or appended to federal Form I-9; and (2) whether the IRCA impliedly preempts Kansas’ prosecution of respondents. Put differently, the issue is whether the federal immigration laws preempt the state identity fraud law as applied to undocumented workers.
Barton v. Barr Issue: Whether a lawfully admitted permanent resident who is not seeking admission to the United States can be “render[ed] ... inadmissible” for the purposes of the stop-time rule, 8 U.S.C. § 1229b(d)(1).
U.S. v. Sineneng-Smith. Issue: Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional.
It could be a big Term for immigration law. I would expect the DACA decision to be handed down near the end of June, as the Court winds down for the end of the Term. Stay tuned!
As readers of this blog well know, the U.S. removal system targets noncitizens with state criminal convictions. A large part of the state "sanctuary" movement is distancing the states as far as possible from the federal removal function. The use of pardons by state governors is one way to help a noncitizen facing removal.
Don Thompson for the Associated Press reports that California Gov. Gavin Newsom yesterday announced pardons of hree men whoy committed crimes when they were each 19 years old and now are attempting to avoid being deported to Cambodia or Vietnam. It is the latest in a series of actions by the Democratic governor resisting the Trump administration aggressive efforts to deport those with criminal records.
Here is Governor Newson's announcement of the latest pardons.
Immigration Article of the Day: Immigration Litigation in the Time of Trump by Shoba Sivaprasad Wadhia
A number of immigration policies have been announced, implemented, or challenged in courts during the first half of Donald J. Trump’s presidency. This Essay provides an update on ongoing litigation on a handful of these policies and was inspired by keynote remarks delivered at the Emerging Immigration Scholars Conference at Brigham Young University in June 2019. The topics covered by this Essay include: litigation affecting those covered by the travel or “Muslim Ban,” asylum policy changes, Deferred Action for Childhood Arrivals (“DACA”), unlawful presence rules, and the border wall. This Essay also discusses lessons and common themes emerging from the litigation brought in the first half of the Trump administration, including the nature of the legal claims, the limitations of litigation, and the human costs of the policies despite these lawsuits.
Friday, November 15, 2019
Silence is Not an Option: We Cannot Sign On to New Asylum Policies by Lindsay M. Harris
As I write, it is a Friday night. It’s been a busy week as an immigration lawyer. On Thursday, during a five-hour long interview at the asylum office, I received an important reminder on the price of silence. The asylum officer asked my courageous client, a torture survivor, what she would do if she returned to her home country. Her response? “I cannot stay quiet. Staying silent is like putting your signature on the things that are happening. It is like saying they are OK. For as long as there is injustice against my people, I cannot stay quiet.”
And so, I cannot stay quiet. The attack on asylum seekers continues. Data obtained by journalists last week revealed that Customs and Border Protection officers are granting as low as 10% of the credible fear interviews they conduct. Perhaps this statistic sounds high to you. Bear in mind that the credible fear interview was designed to be a threshold screening interview, a “beep test” if you will, so that any asylum seeker who could establish a significant possibility of asylum eligibility would be allowed to move forward and present her case to an immigration judge. The issue here is that CBP officers should not be conducting these interviews in the first place. Prior to June, only USCIS asylum officers, also part of the Department of Homeland Security, were allowed to conduct these highly sensitive interviews. Asylum officer grant rate of credible fear interview has in the past been as high 90%, at least back when USCIS released data on these interviews. This made a great deal of sense because those officers receive extensive and ongoing training on key topics, including the labyrinthine and ever-changing nature of asylum law, interviewing survivors of trauma and torture, sensitivity around gender-based violence, power dynamics with authority figures, etc.
But, direction from Stephen Miller in the White House, whose emails we have also been privy to this week, was to shift responsibility from USCIS asylum officer to CBP officers to conduct credible fear interviews. This massive shift in the job function of CBP officers has not been accompanied by any public information about the training they have received. Recently the American Immigration Council and others sued to obtain the training materials, if there even are any, given to CBP officers prior to taking on this new role.
It is not at all surprising that CBP officers are granting fewer credible fear interviews. Indeed, CBP is, at its core, an enforcement agency, focused on keeping immigrants out. CBP’s track record of wrongfully deporting asylum seekers, over the last 23 years, at least, speaks for itself. I have written at length about how CBP officers ignore their duties to even ask asylum seekers four very basic questions to screen whether or not they have a fear of return to their home country. From the institution of the credible fear system in 1996, the U.S. Commission on International Religious Freedom, Human Rights Watch, the ACLU, American Immigration Council, and others, have documented CBP’s failure to ask the questions, failure to record accurate responses, and flat out ignoring expressions of fear and wrongfully deporting asylum seekers to their home countries where they face harm and possibly death.
Dilley, Texas, is home to the largest immigration detention center in the country. Up to 2400 women and their children can be held inside the center, purpose-built and opened in 2015 on a former site for oil and gas drilling. I’ve written about this place and the unforgivable waste of detaining families before. The majority of families at Dilley are asylum seekers. At this female only facility, CBP has seen fit to assign male officers to conduct credible fear interviews with the mothers. This is despite the very well-documented extremely high levels of gender-based violence and trauma survivors among this asylum-seeking population.
This is not, of course, the only attack on asylum seekers and immigrants this week. Late Friday afternoon the government quietly released new proposed regulations to increase fees throughout the agency. This includes, for the first time ever, a $50 fee for individuals to apply for asylum protection. This may not seem like very much, but asylum seekers are not permitted to even apply for a work permit until 150 days after their asylum application is received. At the same time, asylum seekers are not entitled to any federal benefits (and hardly any state benefits, except a couple of outliers, like Maine), $50 will be a barrier to some from obtaining protection. Years ago I worked for a non-profit organization where we charged a $100 fee for each client, and many of my clients struggled to pay that in $10 or $20 installments over a period of a year or more.
At the same time, the government has already released proposed regulations to remove the 30-day court mandated processing deadline for asylum seeker work permits, eliminating any processing deadline whatsoever and enabling the government to delay work authorization indefinitely with impunity. And, on Wednesday the Administration released their proposed rule to more than double the 150-day waiting period after filing an asylum application to file for a work permit to a year. This will leave asylum seekers unable to fend for themselves, vulnerable to those who would prey on individuals living at the margins of society, and unable to access healthcare, public transportation, obtain driver’s licenses, banking systems, and, of course, access to legal counsel.
I ask you to heed the powerful words of my client this week. Americans, call on Congress to act. Call your senators demand that they question Acting USCIS Director Kenneth Cuccinelli and CBP Acting Commissioner Mark Morgan, who appeared before Congress earlier this week, on these new policies. Ask Cuccinelli about his agency’s dereliction of duty in permitting CBP officers to conduct credible fear interviews. Ask him about the fees for asylum. Ask him about unreasonably delaying work authorization. Ask Morgan about what specific training his officers have received to conduct credible fear interviews. Speak out, ask questions, and take action. We cannot continue to sign off on these practices because they fundamentally undermine the human rights of asylum seekers, and, in turn, our own humanity.
Lindsay M. Harris is Associate Professor of Law at the University of the District of Columbia – David A. Clarke School of Law and Co-Director of the Immigration and Human Rights Clinic. She serves as Vice Chair of the American Immigration Lawyer’s Association National Asylum and Refugee Committee and as Vice Chair of the Board of the Asylum Seeker Assistance Project.
The South Texas Pro Bono Asylum Representation Project (ProBAR) is a project under the umbrella of the American Bar Association. ProBAR is the only organization in the Rio Grande Valley of Texas providing pro bono assistance to detained immigrants and asylum seekers in the region. ProBAR primarily helps detainees in the Port Isabel Detention Center and East Hidalgo Detention Center, as well as several children shelters in the surrounding area. Private attorneys also provide free legal services. Among the generous attorneys is Jody Goodwin, recipient of the Michael Maggio Memorial ProBono Award by the American Immigration Lawyers Association.
As a legal intern at ProBAR this past summer, I was able to work with a supportive and passionate team. I worked alongside Natalia Mead, an intern from the American University Washington College of Law, and under the supervision of Natalie Caldwalader, an Equal Justice Fellow. The current political climate increased the demand for legal services and the needs of detainees and asylum seekers for representation. There was a new procedure in Rio Grande Valley adopted by U.S. Customs and Border Protection (CBP) to identify age for unaccompanied minors.
ProBAR learned about unaccompanied minors (UC) being placed in Immigration and Custom Enforcement (ICE) detention centers for adults through (1) calls from the detainee’s family members; and (2) word of mouth from detainees in the detention center. As a result of UCs being placed in adult detention centers instead of shelters, many lost protections for child migrants under the Flores Settlement Agreement and the Trafficking Victims Protections Reauthorization Act (TVPRA). While I was there, our team encountered three children who claimed to have been coerced by CBP officers to say that they were adults.
As an intern, I researched procedural practices for CBP and coercion. Most of my research suggests that the primary reason that UCs produce false statements is because children are more susceptible to coercion than adults. The pressure of being detained, as well as the conditions at the detention centers, make it more likely for children to give into the demands of an interrogator. The following are examples of UCs reports about questioning in ICE custody.
- Allegations by CBP officers that the UC was lying or being questioned about the validity of their documents.
- Non-Spanish and non-English speaking UCs were transferred directly without confirming the UCs age. CBP officers instead would estimate their age by examining their physical appearance.
- Threats by CBP officers that the UC would be put in jail for several years if he or she did not admit to being an adult.
I observed that CBP officer’s actions adversely affect UCs’ legal outcomes, as well as their psychological well-being.
If the federal government designates a UC to be an adult, the child will be transferred to an ICE detention facility with adverse mental health consequences, including anxiety and post-traumatic stress disorder. See M. von Werthern, The Impact of Immigration Detention Mental Health: A Systematic Review, BMC Psychiatry 1 (2018). The UCs who our team met experienced stress and were anxious to reunite with their family members.
The excessive discretion of CBP and ICE harms minors and requires more equitable assessments of whether an unaccompanied minor is indeed a minor, especially in situations where the UCs speak a different language than the ICE officer. Currently, minors are incorrectly placed in adult detention centers and losing their legal protections under the TVPRA and the Flores Settlement Agreement. Examples include the following: (1) no cost voluntary departure; (2) eligibility for Special Immigrant Juvenile Status (SIJS); (3) avoidance of expedited removal; and (4) the right to seek asylum in a non-adversarial interview with USCIS. It is also important to emphasize that, when “accidently” placed in detention centers, UCs suffer psychological harm and prevent UC from acquiring a fair hearing before an immigration judge or having the opportunity to be housed at a shelter.
Leticia Casillas Luquin is a second year law student at UC Davis School of Law.
News from Oregon. Under a new rule issued by the Oregon Supreme Court, U.S. Immigration and Customs Enforcement officers are forbidden from making arrests inside or in the close vicinity of Oregon’s state courthouses unless the agents first receive warrants from a judge.
"Oregon Chief Justice Issues Rule Limiting Courthouse Arrests
On the recommendation of the Uniform Trial Court Rules (UTCR) Committee, Oregon Supreme Court Chief Justice Martha Walters today enacted a rule that prohibits civil arrests in state courthouses unless the arresting agency has a judicial arrest warrant. The rule was adopted following a request to prohibit U.S. Immigration and Customs Enforcement (ICE) agents from making arrests in courthouses acting only on their own administrative warrants.
“Adopting this rule protects the integrity of the state judicial process and will allow state courts to fully hold accountable people accused of a crime,” Walters said. “Arrests in courthouses have interfered with judicial proceedings and removed criminal defendants before they have been sentenced or completed their sentences. We are adopting this rule to maintain the integrity of our courts and provide access to justice– not to advance or oppose any political or policy agenda.”
The UTCR Committee reviewed a proposal to ban civil arrests without a judicial warrant both in courthouses and when people are in transit to or from court proceedings. The final rule reflects the Committee’s recommendation and prohibits non-judicial arrests only in court facilities or their vicinity (including entryways, sidewalks, and parking lots).
The rule does not require judges to take any specific enforcement action, but also does not limit their ability to enforce this rule or other law. The rule will be posted for public comment in midDecember and reviewed again by the UTCR Committee in April 2020. Once posted, people wishing to comment on the rule can do so here: https://www.courts.oregon.gov/programs/utcr/committee/Pages/default.aspx.
Walters said she will continue working with federal law enforcement agencies. Walters and the Chief Justice of the Washington Supreme Court met with ICE representatives and the United States Attorneys for Oregon and Washington on October 8 to discuss the reasons for arrests in courthouses and potential court rules in Oregon and Washington.
ICE previously declined Oregon’s request to add courthouses to its list of “sensitive locations” – such as schools, hospitals, and places of worship -- where arrests require higher-level supervisory permission or exigent circumstances."
In 2017, California Supreme Court Chief Justice Tani Cantil-Sakauye in a letter to the Attorney General and Secretary of the Department of Homeland Security registered concern with ICE arrests at California courts.
Immigration Article of the Day: Is Affording Undocumented Immigrants Health Coverage a Radical Proposal? by Lawrence O. Gostin
Is Affording Undocumented Immigrants Health Coverage a Radical Proposal? by Lawrence O. Gostin, JAMA, Vol. 322, Number 15, Pp. 1348-1349, 2019
During the Democratic presidential debate on July 31, all 10 candidates raised their hands when asked if they would provide health insurance to undocumented immigrants. Among all Democratic ideas for health reform, this is least popular. A recent poll found that only 38% of respondents approve. The idea drew extensive criticism, which is understandable: Why should the United States provide health coverage for people who don’t have a legal right to be here? Extending coverage could be seen as rewarding individuals who have violated the law.
There are, however, strong reasons to afford health coverage for this population: modest economic costs, safeguarding the public’s health by curbing the spread of infectious diseases, and complying with international law that requires health coverage for migrants. Many countries fail to afford migrants equitable access to health coverage, so adopting a policy of providing undocumented immigrants on par with other residents — integrated into existing federal health insurance programs — would help the United States regain moral leadership, in line with World Health Organization (WHO) and United Nations (UN) guidelines, and potentially save money.
Thursday, November 14, 2019
The Southern Poverty Law Center is on a roll. The same day that they reported on Steven Miller's clear connection to white nationalist organizations (covered in yesterday's ImmigrationProf blog), they presented at the plenary session for the University of Colorado Boulder's Diversity Summit some astonishing data showing the rising number of hate groups.
Also among their striking visuals is a "hate map" showing the geographic dispersion of those groups. The interactive hate map contains a filter for ideology, including one for anti-immigrant hate groups (pictured below).
BREAKING: Chad Wolf was sworn in Wednesday as the new acting Homeland Security secretary, and announced that acting U.S. Citizenship and Immigration Services Director Ken Cuccinelli will serve as his deputy -- a move that is likely to be welcomed by supporters of tougher immigration measures.
Wolf, who previously served as chief of staff to former DHS Secretary Kirstjen Nielsen, was sworn in hours after the Senate confirmed him as the first under secretary for policy, a role in which he will never serve but a necessary legal hurdle for him to take the top job in a temporary capacity. He replaces Kevin McAleenan, who took over from Nielsen in an acting capacity in April and submitted his resignation last month.
RJ Hauman, head of government relations at the Federation for American Immigration Reform (FAIR), said he was cautiously optimistic about Wolf’s appointment, with that optimism reinforced by the Cuccinelli announcement. “With Chad Wolf’s assistance, DHS has done one hell of a job on the illegal-immigration front over the past few months,” Hauman told Fox News. “However, there is still much to be done when it comes to protecting American workers through the issuance of administrative rules... As new acting head of DHS, Wolf must never reward the business lobby’s intentional disregard of American workers to maximize profits,” Hauman said. “We’ll be engaged and the American people will be watching.”
Democrats, however, criticized Wolf’s appointment from the other direction, accusing him of being behind some of what they called the Trump administration’s most inhumane immigration policies in his previous work in DHS. “By confirming Chad Wolf, the @SenateGOP has rewarded a man who has stood by @realDonaldTrump’s most immoral and anti-American policies: family separation, the Muslim ban, and the unlawful national emergency declaration,” Rep. Veronica Escobar, D-Texas, tweeted. Congressman Bennie Thompson of Mississippi said in a statement: "It seems that President Trump just couldn't fight the urge to play to his base by elevating Ken Cuccinelli to another senior leadership position at DHS that he is wholly unqualified for," Thompson wrote. "Mr. Cuccinelli is nothing more than an anti-immigrant fringe figure and Trump sycophant."
UC Davis Law Review Symposium: The 25th Anniversary of Proposition 187: Challenges and Opportunities for Immigrant Integration and Political Identity in California
The UC Davis Law Review today continues a symposium on the 25th anniversary of California's immigration milestone, Proposition 187. Here is the schedule. There is room for anyone interested in attending.
California Proposition 187, passed in 1994, was the first modern anti-immigrant state legislation. While the U.S. District Court for the Central District of California invalidated the measure, the law’s effects on immigration policies and the Latinx community in California remain.
The UC Davis School of Law and UC Davis Law Review are hosting a panel and an academic symposium to commemorate the 25th anniversary of the passage of Prop. 187 on November 13-14, 2019. The panel will feature litigators who challenged Prop. 187 in the courts.
The academic symposium will discuss the influence Prop. 187 had on immigration at the state and federal levels, the political environment in California, and Latinx and immigrant communities in four panel discussions.
A panel of distinguished activists yesterday opened the commemoration of the 25th Anniversary of Prop. 187. Litigators who challenged Prop. 187 in court and in the streets discussed their resistance strategies and lessons learned from their experiences for today’s anti-immigrant challenges. The speakers included Thomas Saenz, President and General Counsel, Mexican American Legal Defense and Educational Fund (MALDEF), Vibiana Andrade, General Counsel, Los Angeles County Office of Education, and Angie Wei, Chief Deputy Cabinet Secretary for Policy Development, Gov. Gavin Newsom’s Office. The moderator of the discussion was Maria Blanco, Executive Director, UC Immigrant Legal Services Center.
The schedule for today:
9:00 – 9:15 Welcome and Introductions
9:15 – 10:30 KEYNOTE: Thomas Saenz, President and General Counsel, Mexican American Legal Defense and Educational Fund
10:30 – 12:15 Panel 1: The Effects of Prop. 187 on State and Federal Immigration Initiatives
Rick Su, Professor of Law, University of North Carolina School of Law
Rose Cuison-Villazor, Professor of Law, Rutgers Law School
Huyen Pham, Professor of Law, Texas A&M
Moderator: Shayak Sarkar, Acting Professor of Law, UC Davis School of Law
1:00 – 3:00 Panel 2: Prop. 187, Political Participation and Identity
Kevin Johnson, Dean and Professor of Law, UC Davis School of Law
Rachel Moran, Professor of Law, UCLA School of Law
Lisa Garcia Bedolla, Vice-Provost, Graduate Studies, UC Berkeley
Marisa Abrajano, Professor, Political Science, UC San Diego
Oded Gurantz, Assistant Professor, Truman School of Public Affairs, University of Missouri
Moderator: Robyn Rodriguez, Professor, Asian American Studies, UC Davis
3:00 – 4:30 Panel 3: Social Integration and Welfare of Latinx and Immigrant Communities in the Wake of Prop. 187 and Today
Robert Irwin, Professor of Spanish, UC Davis School of Law
Giovanni Peri, Professor, Department of Economics, UC Davis
Beth Caldwell, Professor of Legal Analysis, Southwestern School of Law
Moderator: Leticia Saucedo, Professor of Law, UC Davis School of Law
In 2020, the UC Davis Law Review will be publiching papers presented at the conference.
USA Today reports on a New American Economy second-annual Cities Index, which assesses how well the 100 largest cities are supporting immigrants. This year, Chicago ranked number one, followed by Chula Vista, Cali.; Jersey City; and San Francisco. The group's annual index uses 51 factors to determine how well cities are creating environments that help immigrants succeed, including a city's language access policies, employment and homeownership rates and more.
The top cities:
1. Chicago, IL
2. Chula Vista, CA
3. Jersey City, NJ
4. San Francisco, CA
5. Baltimore, MD
6. New York, NY
7. Anaheim, CA / Newark, NJ / San Jose, CA (tied)
10. Los Angeles, CA / Portland, OR (tied)
12. Cleveland, OH
13. Cincinnati, OH / Greensboro, NC / San Diego, CA (tied)
16. Seattle, WA
17. Detroit, MI
18. Fremont, CA / Riverside, CA / Sacramento, CA (tied)
21. Irvine, CA
22. Albuquerque, NM / Milwaukee, WI / Oakland, CA (tied)
25. Philadelphia, PA
26. Washington, D.C.
In January 2017, the University of Maryland Carey School of Law Immigration Clinic, Maryland Immigrant Rights Coalition’s, or MIRC, and CLINIC commenced a bond observation project at the Baltimore Immigration Court with the goal of learning if and how immigration judge practices and decisions evolved under the Trump Administration. This report represents a localized, quantitative perspective on those changes and includes analysis of the first set of these observations, collected from Jan. 24, 2017, to Aug. 21, 2017. The report also includes recommendations to the Department of Justice Executive Office for Immigration Review. These recommendations aim to ensure proper training of immigration judges, uphold due process during bond hearings, allow noncitizens facing gang allegations a reasonable opportunity to examine the evidence against them, establish transparency on bond amounts, and improve the appeal process.
The findings of this report include the following conclusions:
• In the six months following President Trump’s inauguration, the average bond amount increased by 38% rising from an average of $8,597 in the first three months of the observations to $11,868 in the last two months; the data also reveal that the average rate of granting bond dropped by 7% from bond granted in 73% of cases to bond granted in 66% of cases.2
• Legal representation increased the likelihood of a lower bond and reduced by almost half the chances that the judge would deny bond altogether. The immigration court set a bond in 68% of cases. Represented people were granted a bond by the immigration court or obtained a reduction in the original bond set in 72% of cases. Unrepresented people were less likely to prevail. Only 48% of those cases received bond or reduction in bond.
• The average bond amount granted for all cases was $11,408; For represented people, the average amount was $11,197; and for unrepresented people, the average amount was $12,800 (14% higher than represented respondents with similar facts).
• The immigration court denied bond in 32% of cases. 70% of the denied bonds were in cases in which the judge had discretion to set or deny bond. The remaining 30% were on mandatory detention grounds.
• Any allegation of gang membership or affiliation precipitously reduced the odds that the court would set any bond whatsoever; the court denied bond for 7 out of 8 people, or 88%, of the cases where the government alleged gang affiliation.
• The top countries of origin for detained people seeking bond were El Salvador (33% of recorded cases), Mexico (19%), Guatemala (15%), and Honduras (15%); with Spanish being the preferred language in most cases (82%).
• Nearly half of people had some potential form of immigration relief or protection identified, including humanitarian and family-based forms of relief.
From the Bookshelves: The Arc of Protection; Reforming the International Refugee Regime T. Alexander Aleinikoff and Leah Zamore
The international refugee regime is fundamentally broken. Designed in the wake of World War II to provide protection and assistance, the system is unable to address the record numbers of persons displaced by conflict and violence today. States have put up fences and adopted policies to deny, deter, and detain asylum seekers. People recognized as refugees are routinely denied rights guaranteed by international law. The results are dismal for the millions of refugees around the world who are left with slender prospects to rebuild their lives or contribute to host communities. T. Alexander Aleinikoff and Leah Zamore lay bare the underlying global crisis of responsibility.
The Arc of Protection adopts a revisionist and critical perspective that examines the original premises of the international refugee regime. Aleinikoff and Zamore identify compromises at the founding of the system that attempted to balance humanitarian ideals and sovereign control of their borders by states. This book offers a way out of the current international morass through refocusing on responsibility-sharing, seeing the humanitarian-development divide in a new light, and putting refugee rights front and center.
Wednesday, November 13, 2019
KCRW Radio in Los Angeles highlights the mental stresses of migration in multiple settings.
First, the radio program interviews a psychologist about the stresses of uncertainty about the future. This form of stress is remiscent of what Roberto Gonzalez in his study of DACA calls "Lives in Limbo" or what Cecilia Menjivar in her study of TPS calls "liminal legality." (In a forthcoming book, Pursuing Citizenship in the Enforcement Era, Stanford Press, I describe a similar state of "citizenship insecurity" for DACA recipients and international students.) Whatever it is named, this mental stress can be recognized in the current plight of DACA recipients who experience uncertainty acutely as the Supreme Court reviews the rescission of DACA. As the radio program says, "When your future is undetermined, that instability can lead to stress, depression, anxiety, and sometimes long-lasting trauma. That can be a daily struggle for many LA-based immigrants who qualify for DACA."
The radio program also note that a federal judge recently ruled that the U.S. must provide mental health services to families separated at the border.
If ever there was a natural experiment to show the significance of what sociologists call a "context of reception," this is it. PRI reports on sisters born in Guatemala and lacking status in the U.S. Both had DACA. One chose to live with the uncertainty of DACA in the US. The other chose to cross another border, to Canada, and to make her life there instead. Who fared better?
Karen Hernandez figured that with her skills and college degrees, she could become a legal resident in Canada quickly. Today, she and her husband live in Vancouver, where Hernandez works as a data analyst at a healthcare company and her husband is a unionized waiter at a Four Seasons Hotel.
Her sister Angela Velasquez, meanwhile, is riding out the uncertainty in California. She has her own family now, including a husband with DACA and a U.S. citizen son. She said she tries to avoid the news about immigration. It’s too stressful. In fact, she prefers not to talk to anyone about immigration, not even her friends.
Although the DACA cases received the most attention in the news yesterday, the Supreme Court also heard oral arguments in Hernandez v. Mesa, a case involving the issue whether a damages claim could be pursued for a cross border shooting along the U.S./Mexico border. Professor Stephen Vladeck argued the case for the Hernandez family. Here is the transcript to the argument.
Amy Howe recaps the argument for SCOTUSBlog. Howe encapsulates the case as follows:
"In 2010, Sergio – who was then 15 years old – was on the Mexican side of the U.S.-Mexico border when he was shot and killed by a U.S. Border Patrol agent, Jesus Mesa. The Hernandez family filed a lawsuit against Mesa in federal court in Texas, arguing that Mesa had used excessive force against Sergio, which violated Sergio’s rights under the Fourth and Fifth Amendments to the U.S. Constitution. The dispute now before the Supreme Court centers on whether the family’s lawsuit can go forward. After an hour of oral argument this morning, the family seemed to face an uphill battle, with the justices closely divided."
Howe suggests that a majority of the Court might believe that this kind of case should be addressed by Congress, without the Court implying a private right of action.
Immigration Article of the Day: Chevron and the Attorney General's Certification Power by Jonathan Riedel
Congress has delegated power to the Attorney General to execute the nation’s immigration laws, adjudicate individual noncitizens’ cases, and fill interpretive gaps in the statute. The Attorney General has in turn delegated this authority, by regulation, to the Board of Immigration Appeals (BIA). Most BIA decisions are administratively final, and noncitizens appeal unfavorable decisions directly to federal courts of appeals. In a small but growing number of cases, however, the Attorney General will step in to decide a case himself de novo after the BIA has ruled. This power of intervention and decision, sometimes known as the “referral and review” power or “certification” power, has drawn some praise for being an efficient use of the broad power afforded to the executive branch in the immigration context, but more often has sustained criticism for potential abuse. In this Note, I analyze this certification power through the lens of Chevron. In particular, I argue that Chevron deference to the BIA is appropriate because it serves the values of the Chevron doctrine—expertise, procedural regularity, and public accountability—but that Chevron deference to the Attorney General’s certified opinions is inappropriate. Courts have a responsibility under Step Zero not to defer to an interpretation of law unless its issuance adheres sufficiently to fundamental tenets of administrative law. Certified opinions are insufficient on all counts. Deference to the Attorney General’s interpretations of law issued in this manner serves none of the values of the Chevron doctrine.
From the Bookshelves: Opening the Gates to Asia: A Transpacific History of How America Repealed Asian Exclusion by Jane H. Hong
Over the course of less than a century, the U.S. transformed from a nation that excluded Asians from immigration and citizenship to one that receives more immigrants from Asia than from anywhere else in the world. Yet questions of how that dramatic shift took place have long gone unanswered. In this first comprehensive history of Asian exclusion repeal, Jane H. Hong unearths the transpacific movement that successfully ended restrictions on Asian immigration.
The mid-twentieth century repeal of Asian exclusion, Hong shows, was part of the price of America’s postwar empire in Asia. The demands of U.S. empire-building during an era of decolonization created new opportunities for advocates from both the U.S. and Asia to lobby U.S. Congress for repeal. Drawing from sources in the United States, India, and the Philippines, Opening the Gates to Asia charts a movement more than twenty years in the making. Positioning repeal at the intersection of U.S. civil rights struggles and Asian decolonization, Hong raises thorny questions about the meanings of nation, independence, and citizenship on the global stage.