Friday, November 8, 2024
President Trump’s Immigration Enforcement 2.0
President Trump’s Immigration Enforcement 2.0 by Kevin R. Johnson
In his first term, Donald Trump aggressively pursued immigration enforcement like no other modern President. During the 2024 presidential campaign, Trump doubled down on his first term's tough–on-immigrant rhetoric and policy proposals. He made blatantly false claims about Haitian migrants eating pets and complained that immigrants were "poisoning the blood of our country." Last but not least, Trump called for mass deportations like nothing the nation has ever seen.
Here are the five areas in which the second term of Donald Trump will likely see changes in U.S. immigration policy. All of the changes could be subject to legal challenge.
Mass Deportation
Without elaborating on the details, Trump promised a mass deportation campaign to remove the approximately eleven million undocumented immigrants from the United States. He may try to achieve mass deportations in several ways.
Trump has stated that the Alien Enemies Act of 1798 might justify mass removals. Designed for use in war-time, that law was used to detain Germans, Japanese, and Italians during world wars. The United States is not at war. However, President-Elect Trump has referred to undocumented immigrants as “invaders” and declared that the nation is being subject to an invasion.
President Trump also has pointed to President Eisenhower’s Operation Wetback in 1954 as a model for his mass deportation campaign. Led by a U.S. army general, the military style operation resulted in the removal of roughly one million persons of Mexican ancestry, U.S. citizens as well as immigrants. Use of the military in the border region, or in the interior of the country, would raise a number of possible legal challenges.
As he proposed previously, President Trump could expand expedited removal -- removal of immigrants without due process authorized by 1996 immigration reforms -- to all undocumented immigrants apprehended in the United States no matter how long they had been here. Expedited removal historically has been limited to noncitizens within the country for less than 14 days who were apprehended within 100 miles of the border. Removal of long-term residents raises serious due process questions, as the life and liberty interests at stake in removal cases are high. In addition, it is unclear how people in the interior of the country would be designated for expedited removal, with civil rights concerns lurking in the background
Border Enforcement
Even though the immigration enforcement benefits are questionable, President Trump has long championed building a wall along the U.S./Mexico border. His first term saw the beginning of the construction of the wall. President Biden put that massive project on hold. Expect wall construction to resume with much fanfare in President Trump's second term
In his first term, President Trump engaged in creative efforts to close the U.S./Mexico border. Those efforts could be models for the second term. His Remain in Mexico policy required asylum applicants at the border to wait in Mexico while their claims were being decided. President Biden lifted the policy. During the COVID-19 pandemic, the Trump administration used an obscure public health law, Title 42, to close the border ostensibly to combat the spread of the virus. It took time but President Biden lifted the order.
Interior Enforcement
The first Trump administration aggressively pursued enforcement of the immigration laws in the interior of the United States. Discussed above, expanded expedited removal is one way of expanding interior enforcement.
Expect the return of workplace raids as well as enforcement operations in public places, such as convenience stores and state courthouses. Under President Trump, Immigration and Customs Enforcement apprehensions of noncitizens in state courthouses provoked a letter of protest from the Chief Justice of California to the U.S. Attorney General and Secretary of the Department of Homeland Security.
As the Trump administration did in his first term, the incoming administration likely will seek the assistance of state and local law enforcement in immigration enforcement. Under Immigration and Nationality Act Section 287(g), state and local governments can enter into agreements authorizing their cooperation with federal immigration enforcement. Jurisdictions in some states, Arizona, for example, may be eager to enter into such agreements. Those in California are unlikely to consider 287(g) agreements.
The new Trump administration may bring challenges to laws declaring state and local governments to be sanctuaries for immigrants and refuse to fully cooperate with federal immigration enforcement authorities. However, the first Trump administration lost lawsuits challenging sanctuary laws and courts halted federal efforts to withhold federal monies to state and local agencies that did not cooperate with federal immigration enforcement
Limit Legal Immigration
The Trump administration will likely seek to limit legal immigration. The first Trump administration sought to limit family immigration, the cornerstone of the U.S. immigration laws, denigrating it as “chain migration.” In his first term, President Trump supported legislation that would have reduced legal immigration from roughly one million a year to half that.
To restrict immigration without changes to the U.S immigration laws, expect the Trump administration to tighten application of visa requirements and engage in closer review of visa applications, including those of international students, business visitors, and tourists. This all occurred during Trump's first term.
The first Trump administration also tightened the public charge rule, which allows the exclusion from the country of persons likely to become a public charge and the removal of noncitizens who receive public benefits. Trump’s proposed public charge rule was abandoned by the Biden administration. Expect the proposed public charge rule from Trump’s first term to be brought back after his inauguration in January.
Refugees and Asylum
President Trump will likely reduce the annual allocation of refugee admissions, which President Biden had increased from the low levels of the first Trump term. Trump also is likely to appoint an Attorney General who restricts asylum eligibility and prioritizes the removal of immigrants.
Conclusion
During the campaign, Donald Trump regularly talked about immigration enforcement. Although he was sparse on the details, his first term offers an idea of the types of policies that he might pursue. Some states may resist but, whatever happens, the nation is likely to experience a sea change in immigration enforcement in the second term of Donald Trump.
Kevin R. Johnson is Mabie/Apallas Professor of Public Interest Law and Chicanx Studies, University of California, Davis School of Law
November 8, 2024 in Current Affairs | Permalink | Comments (0)
Federal Judge Finds Biden Keeping Families Together Policy Unlawful
Photo courtesy of Wikimedia Commons
Newsweek and the Associated Press report that President Biden's policy granting legal status to spouses of U.S. citizens who unlawfully entered the country has been struck down by a federal court
Biden announced his "Keeping Families Together" initiative in June. The policy would have allowed roughly half a million spouses and children of U.S. citizens to apply for permanent residency without being required to leave the country.
Yesterday, U.S. District Judge J. Campbell Barker, appointed to the bench by President-elect Trump in 2019, sided with Texas and other Republican-led states. Even if the Biden administration appealed the ruling, Trump administration would likely abandon the policy.
KJ
November 8, 2024 in Current Affairs | Permalink | Comments (0)
Immigration Article of the Day: A Different “Border Crisis”: Civil Remedies for Unlawful Detainment After Egbert by Aimee Hernandez
A Different “Border Crisis”: Civil Remedies for Unlawful Detainment After Egbert by Aimee Hernandez
Abstract
In 1971, the Supreme Court decided Bivens v. Six Unknown Named Agents where the court created an implied cause of action for a private citizen to sue a federal official for a Fourth Amendment violation. This began to be known as a Bivens claim. Later cases created two more causes of action for a Fifth and Eighth Amendment violations in Davis v. Passman and Carlson v. Green. Beyond these three instances, the court has declined to extend the Bivens claim any further. Most recently, the Court's ruling in Egbert v. Boule essentially closed the door to Bivens, and with it, civil relief for constitutional violations by federal officials. In Egbert, the court held an individual did not have a Bivens claim against a Border Patrol agent for the violation of his First and Fourth amendment rights. In refusing to extend Bivens to the facts in Egbert, the Court pointed towards Congress to create a cause of action to remedy private citizens. In recent years, there has been an extensive influx of immigration, causing an increase in border security efforts. Congress and the Court have recognized several exceptions to constitutional rights at the border in the name of national security. Exceptions such as the 100-mile Border Exception have given Border Patrol increased latitude in policing at the border and nearby cities where an approximated two-thirds of the U.S. population lives. This latitude at times results in the infringement of constitutional rights of U.S. citizens. In 2019, an 18-year-old Dallas teenager, traveling through a Border Patrol checkpoint, was held in Border Patrol custody for nearly a month. This teen was a U.S. Citizen and had documentation to prove it, yet he was detained for weeks unable to make even a phone call. After Egbert, U.S. citizens who are unlawfully detained for extended periods of time, and who suffer from other unconstitutional conduct during their detainment, have little to no relief. Private citizens should have access to an adequate civil remedy that works to both compensate and deter further unlawful detentions. Along with providing relief, officers should be deterred from further conduct that infringes on the fundamental rights of U.S. Citizens. This Article proposes a statute that mimics a § 1983 claim and sets out statutory language that is narrowly tailored to consider government interest while protecting individual rights.
KJ
November 8, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)
Thursday, November 7, 2024
Virtual Event (November 13): The Wellbeing of Child Immigrants and Children of Immigrants in Mexico and the U.S.
What Immigration Enforcement Look Like in a Second Trump Administration
Nick Miroff and Maria Sacchetti for the Washington Post preview immigration enforcement in the new Trump administration. The mass removal campaign promised by Donald Trump is at the top of the agenda.
We might see two former high level from Trump's first administration in high profile immigration roles in the second administration. Two possibilities are former acting director of Immigration and Customs Enforcement Thomas Homan, who recently promised the removal of entire families as an alternative to family separation on "60 Minutes, (and here), and Chad Wolf, who was acting homeland security secretary at the end of Trump’s first term.
Miroff and Sacchetti discussed possible resistance of immigrant rights advocates to the Trump immigration enforcement measures. There is little doubt that litigation is on the horizon:
“`As bad as the first Trump administration was for immigrants, we anticipate it will be much worse this time and are particularly concerned about the use of the military to round up immigrants,'” said Lee Gelernt, a lawyer with the American Civil Liberties Union who challenged family-separation and other Trump policies in court. “`As always, we will go to court to challenge illegal policies, but it is equally essential that the public push back, as it did with family separation.'
`We have no choice other than to fight,' Gelernt said."
KJ
November 7, 2024 in Current Affairs | Permalink | Comments (2)
Immigration Article of the Day: Antitrust for Immigrants by Greg Day
Antitrust for Immigrants by Greg Day, Cornell Law Review
Immigrants and undocumented people have often encountered discrimination because they compete against "native" businesses and workers, resulting in protests, boycotts, and even violence intended to exclude immigrants from markets. Key to this story is government's ability to discriminate as well: it is indeed common for state and federal actors to enact protectionist laws and regulations meant to prevent immigrants from braiding hair, manicuring nails, operating food trucks, or otherwise competing. But antitrust courts have seldom mentioned a person's immigration status, much less offered a remedy.
This Article shows that antitrust's "consumer welfare" standard has curiously ignored the plight of immigrants. Part of the reason is that antitrust law is characterized as a "colorblind" regime beneftting consumers collectively, meaning that it isn't supposed to prioritize insular groups such as immigrants. Courts and scholars have also described matters of inequality and discrimination as "social harms" existing beyond antitrust's scope. In fact, antitrust lawsuits have successfully sought to drive immigrants out of markets, alleging that competitors gained an "unfair" advantage from employing undocumented workers. Under this view of antitrust law, the exclusion of immigrants is an appropriate way of promoting competition.
This Article argues that anti-immigrant discrimination creates the exact types of harms that antitrust was meant to remedy. Since excluding immigrants can misallocate resources on citizenship or racial lines as opposed to their most productive usages, certain acts of discrimination should entail "conduct without a legitimate business purpose," even when based.
KJ
November 7, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)
Wednesday, November 6, 2024
Post-Election Roundtable on the Future of Immigration (In Person with Virtual Access)
UC Davis Law Post-Election Roundtable on the Future of Immigration (In Person with Virtual Access)
November 6, 2024 in Current Affairs | Permalink | Comments (0)
An Appeal to the Incoming Administration and Congress
The following is a quote from Jennie Murray, President and Chief Executive Officer of the National Immigration Forum, on the election results:
"Immigrants are essential to our social fabric. The National Immigration Forum will remain steadfast in our support not only of immigrants’ human dignity, but also of the American communities who rely on and welcome them.
Voters spoke clearly that the economy is a top concern and that replacing our broken immigration system is urgent. President-elect Trump must work with Congress on reforms that can benefit all Americans by helping spur the economy and addressing border, asylum and legal-immigration challenges.
Americans are frustrated with dysfunction, but they favor action to address more than just the border. We appeal to the incoming administration and Congress to listen to the strong majority of Americans, including Republican voters, who want Republicans and Democrats to work together on border and immigration solutions. More than 75% of voters, including 7 in 10 self-identified Republicans, support such solutions.
We stand ready with our moderate and conservative constituencies to work together toward secure, compassionate policies. Humane and balanced solutions are not only possible but urgent. Leaders can start with the difficult conversations Republicans and Democrats in Congress already are having, look to pragmatic border and asylum solutions, and preserve and cement the contributions of immigrants here without permanent certainty, such as Dreamers and our resettled Afghan allies.
President Trump’s actions during his first term caused tremendous uncertainty not only for immigrants, but also for their families, employers, and communities. Now that the election is over, we urge the president-elect to reconsider unworkable and costly policies he touted in the campaign, particularly mass deportation, which would separate families and damage our communities and our economy.
Many immigrants, their loved ones, and all Americans who value immigrants and recognize their importance to our nation are anxious about the election results. The fact remains: Across the country, immigrants are working alongside native-born Americans, contributing to our churches, schools, communities and economy. "
KJ
November 6, 2024 in Current Affairs | Permalink | Comments (0)
Donald Trump Re-Elected President, Human Rights Watch Expresses Concerns
Official White House Photo from First Term
After an extraordinary campaign, Donald Trump prevailed in the 2024 presidential election. The inauguration is in January.
Immigration was a central dividing issue in the campaign. The nation can expect the Trump administration to make many changes (and here) in immigration policy -- probably in short order. It will be a whirlwind and immigration law professors will need to work hard to keep up. Many already are discussing how to discuss the election outcome with current immigration law students.
Upon Trump's reelection, Human Rights Watch released a news advisory. It began:
"Donald Trump’s second term as United States president poses a grave threat to human rights in the United States and the world, Human Rights Watch said today. These concerns reflect Trump’s rights-abusing record during his first term, his embrace of white supremacist supporters and ideology, the extreme antidemocratic and anti-rights policies proposed by think tanks led by former aides, and campaign promises, including to round up and deport millions of immigrants and retaliate against political opponents." (bold added).
Click the link above for details about Human Rights Watch's concerns..
KJ
November 6, 2024 in Current Affairs | Permalink | Comments (0)
Immigration Article of the Day: The Second Amendment Rights of Undocumented Immigrants by Alan Mygatt-Tauber
The Second Amendment Rights of Undocumented Immigrants by Alan Mygatt-Tauber
In 2008’s District of Columbia v. Heller, the Supreme Court, for the first time, held that the Second Amendment protects an individual right to bear arms. Challenges to various federal gun control laws immediately followed, including challenges to 18 U.S.C. § 922(g)(5)(a), which prohibits possession by an undocumented immigrant. Between 2008 and 2022, courts faced with challenges to 922(g)(5)(a) universally upheld it. Then the Court decided New York State Rifle and Pistol Association v. Bruen, in which it discarded the means-end balancing tests the courts of appeals had adopted, instead preferring a test focused on “history and tradition.” Under Bruen’s test, if a regulation was targeted at conduct protected by the Second Amendment, it was presumptively invalid, unless the government could identify an analogous law from the time of the Founding. New challenges were filed. Many courts have continued to uphold the constitutionality of 922(g)(5)(a), but others have found that it is unconstitutional. And at least two circuits have upheld the statute on the ground that undocumented immigrants are not part of “the people” protected by the Second Amendment.
This article is the first in-depth look at the application of Bruen’s test, as modified by the Court’s June 2024 decision in United States v. Rahimi, that addresses both the question of whether undocumented immigrants are part of “the people” entitled to Second Amendment protections and, if so, whether any of the historical analogues identified by the government serve to justify 922(g)(5)(a)’s complete ban on gun ownership. It concludes 1) that undocumented immigrants are part of “the people” because status is irrelevant to the question—it is physical presence in the United States that matters; and 2) none of the purported analogues support a categorical ban on undocumented immigrants possessing firearms. Instead, they support an individualized analysis where only the dangerous may be disarmed.
KJ
November 6, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)
Oral Argument in Velazquez v. Garland: Tolling the Clock on Voluntary Departure
On November 12, the Supreme Court will hear oral argument in Velazquez v. Garland. In the case, the U.S. Court of Appeals for the Tenth Circuit denied review of Hugo Abisaí Monsalvo Velazquez's petition for review because he "failed to voluntarily depart or file an administrative motion within 60 calendar days, the maximum period provided by statute." The issue before the Court is "[w]hether, when a noncitizen's voluntary-departure period ends on a weekend or public holiday, a motion to reopen filed the next business day is sufficient to avoid the penalties for failure to depart under 8 U.S.C. § 1229c(d)(1)."
In a nutshell, Petitioner's argument is as follows:
"This case presents a straightforward question of statutory interpretation: when the “60 days” described in §1229c(b)(2) ends on a weekend or holiday, does the deadline carry over to the next business day? The answer to that question is equally straightforward: it does. "
A decision on the narrow legal issue before the Court will not likely have far-reaching impacts on the administration of the U.S. immigration laws.
KJ
November 6, 2024 in Current Affairs | Permalink | Comments (0)
Tuesday, November 5, 2024
The 1994 Campaign that Anticipated Trump 2024 by Eladio B. Bobadilla
Eladio Bobadilla in TIME (The 1994 Campaign that Anticipated Trump 2024) shows how former President Donald Trump's contemporary appeal to anti-immigrant sentiment in seeking election resembles that of California Governor Pete Wilson's successful backing in 1994 of the anti-immigrant, and racist milestone, Proposition 187. Voters by a 2-1 margin passed the initiative, which if not invalidated in the courts would have stripped undocumented immigrants virtually all public benefits, including a public education. Besides contributing to Congress in welfare reform legislation stripping lawful as well as undocumented immigrants from most federal benefits, Proposition 187 commenced the emergence of many state immigration enforcement laws, including ones passed in Arizona, Alabama, Georgia, South Carolina, Florida, Texas, and other states. Here is Governor Wilson's television ad in support of Prop 187:
Former President Trump followed a similar path as Governor Wilson, although his attacks are even meaner, more racist, and anti-immigrant. Examples abound, from kicking off his 2016 president bid by railing against Mexican immigrants as "criminals"" and "rapists" to the patently false charge during the 2024 campaign that Haitian migrants were eating pets. Such statements sow terror in the immigrant community that some might argue surpasses the fear fomented by Proposition 187.
KJ
November 5, 2024 in Current Affairs | Permalink | Comments (0)
The Conversation: Beefing up Border Patrol is a bipartisan goal, but the agency has a troubled history of violence and impunity by Ragini Shah
In Beefing up Border Patrol is a bipartisan goal, but the agency has a troubled history of violence and impunity in The Conversation, Ragini Shah writes that, created in 1924 to enforce new immigration quotas, the Border Patrol recruited its first agents from the Texas Rangers, giving it a kind of rogue, cowboy culture that persists today. And little has changed in the last century.
Nonetheless, as Shah observes,
"on border policy, Trump and Harris have remarkably similar positions: They want to send more money, Border Patrol agents and technology to the U.S.-Mexico border.
These ideas may sound reasonable enough. Yet, as my research on the history of border enforcement reveals, flooding the zone with funding, law enforcement and technology will not necessarily make the border safer."
KJ
November 5, 2024 in Current Affairs | Permalink | Comments (1)
The Impending Hurricane Puerto Rico by Ediberto Román (Professor of Law, Florida International University) and Ernesto Sagás (Professor of Ethnic Studies, Colorado State University)
The Impending Hurricane Puerto Rico by Ediberto Román (Professor of Law, Florida International University) and Ernesto Sagás (Professor of Ethnic Studies, Colorado State University)
On Thursday, October 31, a visibly uncomfortable Donald Trump visited the blue state of New Mexico to hold a brief political rally. He made it abundantly clear, “I’m here for one very simple reason…I like you very much, and it’s good for my credentials with the Hispanic or Latino community.” To which he added, exasperated: “New Mexico, look, don’t make me waste a whole damn half a day here.” Trump was so patently transparent in his demeanor on that day, that it begs the question: Why was he in—of all places—New Mexico, just five days before the presidential election? Why spend valuable time and resources in a state that he is not going to win? The obvious answer is that Trump was trying—in his own, clumsy and yet recalcitrant way—to make amends with Latinos after a comedian described Puerto Rico as “a floating island of garbage” during his political rally in New York City on October 27. Trump, who feels like he never has to apologize to anyone, came as close to an apology as we will ever get from him—a “trick-or-treat,” “scratch-your-head” moment of sorts right on Halloween Day. Trump knows that he needs the Latino vote to win in key swing states like Arizona, Nevada, and the kingmaker state of Pennsylvania (which has around 300,000 eligible voters of Puerto Rican ancestry). And if he doesn’t get those votes, that’s the end of his political career and he goes back to court to answer to dozens of state and federal charges.
The fallout from the rally in Madison Square Garden New York City has struck the Trump campaign like a political storm, indeed a hurricane if you will. The campaign immediately sought to distance itself from the comedian’s remarks and Trump himself claimed that he didn’t know the guy—even though this individual was invited to the rally and his comedic material was vetted by the Trump campaign. But it was too little, too late. Puerto Rican elected officials, as well as celebrities like megastar Bad Bunny, Hollywood actress Jennifer Lopez, singers Marc Anthony, Ricky Martin, and Luis Fonsi, and Broadway celebrity Lin-Manuel Miranda pounced on Trump for his long history of demeaning comments towards Latinos and communities of color. Moreover, they reminded the public about Trump’s lack of empathy for Puerto Ricans after Hurricane Maria flattened the island in 2017, and how Trump delayed sending aid to the island as millions of people were in desperate need of relief and the death toll rose. This wasn’t the kind of bad publicity that Trump needed as his acolytes had spent months whitewashing his image and trying to make him seen like a “normal” presidential candidate. But Trump is far from normal and his attempt to reingratiate himself with Latinos is but a pathetic last-ditch effort to save his chaotic campaign. In a classic instance of poetic justice, “Hurricane Puerto Rico,” that is, the political power of Puerto Ricans and other Latinos voting in key battleground states, could sink Trump’s ship.
As demonstrated above, Puerto Rican celebrities and political leaders have spoken out against Trump’s racist ventures. The question remains whether the Puerto Rican community, and Latinx community in general, will take the next step. Will they take this critical moment in their history, and the country’s history for that matter, as their Puerto Rican moment? Legal scholars have proclaimed such consequential moments, such as Asian American moments, where social justice movements by minority groups have led civil rights progress in the face of systematic prejudice. The question is whether the Puerto Rican community do more than just “boo” as President Obama warned, will they vote?
The authors here know our people take attacks in stride. Indeed, after over a century of colonial rule, we are used to disrespect. But this moment feels different: conservative and liberal Puerto Ricans and other Latinos alike seem to have had enough of the disrespect. What Trump may fail to realize is that he may be in the path of an oncoming storm. It is one where he may not be able cleanse himself with last-ditch campaign stops to court the Latino vote. His history of hate directed against the Puerto Rican and the Latino community is too long, and he has never apologized for any of it. In fact, he had the temerity to call of calling the Madison Square Garden rally a “lovefest.” Our communities should never forget Tony Hinchcliffe felt comfortable telling a racist joke because Puerto Rico has never commanded any respect from Trump himself. And to add to the harm, we must take notice Trump had the nerve to begin his speech at the same rally by promising the largest mass deportation of immigrants in this country’s history. He could have easily denounced the cacophony of racist attacks at the rally. Instead, he embraced the hate. Rest assured, his promise of sweeping immigrant roundups will disproportionately affect the Latino community, which will include U.S. citizens and legal residents being deported. That is exactly what occurred during the 1950s mass deportation plan Trump has announced he will follow—Operation Wetback--- where hundreds, if not thousands, of U.S. citizens and U.S. legal residents were wrongfully deported.
Cowardly attempts by his campaign to distance themselves from the racism throughout the New York City rally as well as last-ditch campaign stops in predominantly Latino communities, are simply not enough. Now is the time for Trump to face the oncoming storm (or blue or Puerto Rican wave). Trump’s persona has always been about hate and targeting the voiceless ever since 2017, where he made his first venture into the political arena by calling Latino immigrants rapists, drug dealers, and criminals.
May Trump’s hate be swept away in the impending Hurricane Puerto Rico.
KJ
November 5, 2024 in Current Affairs | Permalink | Comments (0)
Election 2024: How immigration has shaped this American town and their vote -- BBC News
It is finally the day of the election and the race for the U.S. Presidency is coming to an end. Immigration has been an issue in the campaign, with former President Trump and Vice President Kamala Harris taking very different positions. The BBC in the story above looks at the views of voters in Fremont, Nebraska, "one of many communities a long way from the southern border where residents feel a recent influx of migrants has changed where they live. Central American migrants started arriving in the town more than a decade ago - and more have moved there since . . . the beginning of the Biden administration."
KJ
November 5, 2024 in Current Affairs | Permalink | Comments (0)
Immigration Article of the Day: Closing the Asylum Gender Gap: Why "Afghan Women" is a Compelling Particular Social Group by Mackenzie Heinrichs
Closing the Asylum Gender Gap: Why "Afghan Women" is a Compelling Particular Social Group by Mackenzie Heinrichs, 57 Vanderbilt Journal of Transnational Law (2024)
Abstract
Afghan women are currently experiencing unprecedented levels of oppression and violence under the Taliban's brutal regime. Many Afghan women who flee the Taliban's tyranny must then deal with the byzantine reality of seeking asylum based on gender persecution. Because "gender" is not explicitly protected under the 1951 Refugee Convention (the Convention), women who fear gender-based violence are often forced to adapt their claims into a "particular social group" (PSG). Unfortunately, the convention does not define PSG, which has resulted in various interpretations across international jurisdictions. This ambiguity creates a gap in protection for women asylum-seekers, like Afghan women, who seek protection based on their membership in a particular social group defined by gender. Therefore, Afghan women face a significant barrier to obtaining asylum due to the lack of consensus worldwide regarding the lawfulness of gender per se PSGs.
Because of the horrific treatment of women in Afghanistan, the current need for courts to accept gender per se social groups—PSGs encompassing gender plus nationality—is pressing. Under both international and US asylum law, there is evidence that courts and administrative agencies are increasingly receptive to gender per se social groups. This has resulted in courts like the Court of Justice of the European Union finding that women from Afghanistan are eligible for asylum based solely on their gender. This positive trend in PSG jurisprudence, combined with the growing number of Afghan arrivals to the United States, presents a strong argument that US asylum law should recognize "Afghan women" as a PSG.
"Afghan women" as a social group avoids many of the pitfalls of other gender-based social groups commonly used because of its concise articulation. Further, "Afghan women" is distinguishable from other cases where gender PSGs were unsuccessful because of the extensive nature of the persecution inflicted on women in Afghanistan by the Taliban government. While Afghan women who fear gender persecution may be able to make asylum claims based on other protected grounds, the social group, “Afghan women,” directly addresses the reason for their persecution: gender. Because the gender gap in asylum protection is particularly acute for women in Afghanistan, “Afghan women” is a uniquely compelling PSG.
KJ
November 5, 2024 in Current Affairs, Law Review Articles & Essays | Permalink | Comments (0)
Monday, November 4, 2024
Video of immigrant claiming he’ll vote multiple times in Georgia is fake
November 4, 2024 in Current Affairs | Permalink | Comments (0)
Immigrant Justice Fellowship For New Lawyers: Q&A Session
Oregon’s Immigrant Justice Fellowship provides new and emerging lawyers with a fully funded position at an Oregon nonprofit to provide universal representation services through Equity Corps of Oregon. Through a competitive process, up to 6 new and emerging attorneys are selected each year for one-year, renewable, fellowships. Click the link above to see application details.
There is an Oregon Immigrant Justice Fellowship Q&A on Thursday, November 7, 2024. 2:30pm Pacific, 4:30pm Central, 5:30pm Eastern. Click here to register.
KJ
November 4, 2024 in Current Affairs | Permalink | Comments (0)
Trump promises tariffs of 25% to 75% on Mexican goods unless illegal immigration stops
Fears have been expressed that the imposition of tariffs, as promised by former President Trump, might well fuel a spike in immigration to the United States from Mexico. USA Today reports that Trump "vowed to immediately impose 25% tariffs on all goods from Mexico as punishment if the country doesn’t help curb the flow of immigration into the U.S., should he win on Election Day Tuesday.
`I’m going to inform her on day one or sooner that if they don’t stop this onslaught of criminals and drugs coming into our country, I’m going to immediately impose a 25 percent tariff on everything they send into the United States of America,' Trump said during his rally in Raleigh, N.C. [today], referring to Mexico’s president.
Trump argued the proposal has an `100% chance of working' because if the 25% tariff doesn’t work, he’ll squeeze the country with a 50% and then 75% tariff."
KJ
November 4, 2024 in Current Affairs | Permalink | Comments (0)
Supreme Court Grants Review on Timing/Jurisdictional Rules for Reviewing Removal Decisions
Photo courtesy of U.S. Supreme Court website
Amy Howe on SCOTUSBlog reports that the Supreme Court today granted certiorari in Riley v. Garland, in which it will address the 30-day deadline to seek review of a Board of Immigration Appeals (BIA) ruling. John Elwood reviews the issues raised by Riley here. The lower court had dismissed the appeal of a BIA decision for not satisfying the 30 days rule.
The questions presented in the case are:
(1) Whether 8 U.S.C. § 1252(b)(1)'s 30-day deadline is jurisdictional, or merely a mandatory claims-processing rule that can be waived or forfeited; and
(2) whether a person can obtain review of the Board of Immigration Appeals' decision in a withholding of removal-only proceeding by filing a petition within 30 days of that decision.
KJ
November 4, 2024 in Current Affairs | Permalink | Comments (0)