Wednesday, March 20, 2019
Today, the ABA Commission on Immigration released an "update report" on immigration courts. What exactly is it updating? The committee's 2010 report entitled Reform1ing the Immigration System: Proposals to Promote Independence, Fairness, Department of Efficiency, and Professionalism in the Adjudication of Removal Cases.
Here is the last paragraph of the report's Introduction:
This is a critical moment in the administration of justice within our immigration system. Systems that were already strained by lack of legislative reform and inconsistent policies are now at the breaking point. In the current environment, policies have been put forth that seek to limit access to asylum, counsel, and the courts themselves. There is little regard for the human cost of detention and deportation. While enacting policies that more closely adhere to a fair and humane interpretation of the immigration laws could do much to reverse these problems, there is little question that legislation is necessary to return balance and due process to the system.
Among the group's many recommendations: increasing prosecutorial discretion at DHS regarding the initiation of removal proceedings, adopting a presumption against detention, and creating an Article I court system for the entire immigration judiciary.
Tuesday, March 19, 2019
The Supreme Court issued an important immigration decision today in Neilsen v. Preap. Here is the syllabus:
Federal immigration law empowers the Secretary of Homeland Security to arrest and hold a deportable alien pending a removal decision, and generally gives the Secretary the discretion either to detain the alien or to release him on bond or parole. 8 U. S. C. §1226(a). Another provision, §1226(c)—enacted out of “concer[n] that deportable criminal aliens who are not detained continue to engage in crime and fail to appear for their removal hearings,” Demore v. Kim, 538 U. S. 510, 513—sets out four categories of aliens who are inadmissible or de- portable for bearing certain links to terrorism or for committing specified crimes. Section 1226(c)(1) directs the Secretary to arrest any such criminal alien “when the alien is released” from jail, and §1226(c)(2) forbids the Secretary to release any “alien described in paragraph (1)” pending a determination on removal (with one exception not relevant here).
Respondents, two classes of aliens detained under §1226(c)(2), allege that because they were not immediately detained by immigration officials after their release from criminal custody, they are not aliens “described in paragraph (1),” even though all of them fall into at least one of the four categories covered by §§1226(c)(1)(A)–(D). Be- cause the Government must rely on §1226(a) for their detention, respondents argue, they are entitled to bond hearings to determine if they should be released pending a decision on their status. The District Courts ruled for respondents, and the Ninth Circuit affirmed.
Held: The judgments are reversed, and the cases are remanded.
Monday, March 18, 2019
This week's mass shooting in New Zealand claimed the lives of several refugees and immigrants (including permanent residents, workers, and international students) from Afghanistan, Bangladesh, Egypt, India, Indonesia, Jordan, Pakistan, Saudi Arabia, Somalia, and Syria.
The BBC has profiles on many including the heroes like Daoud Nadi who "is believed to have thrown himself in front of other people in the mosque to protect them when the gunman burst in." And Naeem Rashid, originally from Pakistan, who tried to tackle the shooter and ended up being fatally shot. Rashid will be posthumously honored by his native country.
Afghan-born Abdul Aziz also played a key role in stopping the shooter. Aziz ran after the shooter with a credit card machine, throwing it at him. Aziz also picked up one of the shooter's guns and aimed it at him, causing the shooter to flee. Since the gun was empty, Aziz threw the gun at the shooter as he got into his car to escape.
Today, New Zealand students performed the traditional Maori haka to honor the dead.
President Trump is seeking $8.6 billion in his fiscal year 2020 budget proposal to build the wall along the U.S./Mexico border. Aaron Reichlin-Melnickp in Immigration Impact looks at the proposal and its immigration impacts.
Recall that Congress narrowly averted a second government shutdown last month by reaching a bipartisan agreement on the Fiscal Year (FY) 2019 budget, which gave President Trump very little of his border demands. The President is undeterred and last week made a budget request for the next fiscal year. It calls for a whopping $8.6 billion in border wall funding, far more than what Congress agreed to in February.
But funding for the wall is not the end of the immigration enforcement funding request. The Trump administration also is requesting funds for an even greater expansion of immigration detention than ever before. Although the FY 2019 budget requires Immigration and Customs Enforcement (ICE) to lower the amount of people they detain to 40,520 by September 2019, the new budget would allow ICE to detain up to 54,000 people—the highest level in the history of the agency.
Moreover, thw Trump administration's budgert proposal seeks funding to create a border security "slush fund" that would permit ICE to expand detention even further. The fund, which the administration calls “Border Security and Immigration Enforcement Fund,” would be bankrolled by fees paid by immigrants pay to U.S. Citizenship and Immigration Services (USCIS) for legal immigration benefits. such as visas or citizenship applications.
This new fund would allow ICE to expand detention capacity beyond the 54,000 beds requested from Congress, up to 60,000 beds. The money would also to be used to increase family detention beds to 10,000. This would triple the administration’s current capacity.
In addition, the budget request calls for a significant increase in personnel, calling for $192 million to hire 750 Border Patrol agents and 171 new Customs and Border Protection (CBP) officers at ports of entry.
Tthe budget plans to add a “10 percent surcharge to immigration filing fees” for “deficit reduction.” Although such fees are normally used to fund USCIS operations, the new “surcharge” would apparently not be used for that purpose and would instead be treated as general government revenue.
This Migration Information Source "Feature" (Protection and Reintegration: Mexico Reforms Migration Agenda in an Increasingly Complex Era) looks at Mexivan immigration policy:
"Mexico is facing a new reality: Rising migration from Central America, the reintegration of returning migrants, and protection of Mexicans in the United States. As President Andrés Manuel López Obrador seeks to shift the country’s migration policy from enforcement to protection, his task is complicated by changing U.S. border policy and the need to avoid domestic backlash over Central American migration to and through Mexico."
Last week, the Trump administration announced the possible closing of immigration services offices outside the United States, saying it is expected to save millions of dollars annually and could better address a backlog in domestic locations. Specifically, a U.S. Citizenship and Immigration Services spokeswoman said that the agency is in preliminary discussions to close offices in 20 countries outside the United States.
Nicole Acevedo, Carmen Sesin and Reuters for NBC News reports that Immigration advocates and attorneys are concerned that the Trump administration is “creating a bigger catastrophe” if it follows through with plans to permanently close the U.S. Citizenship and Immigration Services. "This is going to affect refugees, military servicemen applying for citizenship, the family reunification program," an immigration attorney based in Miami, told NBC News.
Amy Howe on SCOTUSBlog reports on the latest development in the Census 2020 case before the U.S. Supreme Court. On April 23, the Supreme Court will hear oral argument on the challenge to the citizenship question on the 2020 census. The Court originally granted review to decide whether that decision violated federal laws governing administrative agencies, but last Friday the justices announced that they will also consider whether the decision violates the Constitution.
The justices’ order adding the constitutional issue to the case came after U.S. Solicitor General Noel Francisco sent a letter to the clerk of the Supreme Court. The letter stated that a federal district court in California had ruled that the addition of the citizenship question violates the Administrative Procedure Act and the Constitution’s enumeration clause, which requires the “actual Enumeration” of the U.S. population every 10 years, to allow congressional representatives to be evenly divided among the states. The only way to finally resolve whether the federal government can bring back the citizenship question, the government stressed, is to have the justices take up the constitutional issue too.
Sunday, March 17, 2019
"Today is Saint Patricks’ Day, a celebration of Irish heritage. Saint Patrick’s Day began, of course, as a religious holiday. But time and customs have transformed it over the years into a pageant of culture; a chance to acknowledge the contributions that Irish-Americans have made to the US. Yet Irish heritage was not always so widely embraced. During the Potato Famine of the 19th century, nearly 1 million Irish immigrated to America — the first large wave of refugees the country had ever encountered. Many faced virulent prejudice, and were denied employment and basic dignity upon arrival to this country. Despite these obstacles, doors were opened for the Irish, and generations hence, the Irish have made an indelible mark on the country."
There will be parades and celebrations of St. Patrick's Day across the county. For a list of parades, from Boston to San Francisco to Hot Springs, Arkansas, click here.
Saturday, March 16, 2019
Immigration Article of the Day: Rescinding Inclusion in the Administrative State: Adjudicating DACA, the Census, and the Military’s Transgender Policy by Peter Margulies
The rescission of programs, policies, and practices by an incoming administration often raises legal questions. However, answers are harder to find. That is the case with the whirlwind of rollbacks proposed and implemented by the Trump administration, in areas from transgender persons in the military to asking a citizenship question on the census and terminating Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS). This Article provides a lens for assessing the legality of these seemingly precipitous moves.
Viewing these abrupt paradigm shifts as threshold rescissions clarifies the legal landscape. Threshold measures govern baseline access to goods and institutions, including military service, political representation, and living and working legally in the United States. Under current case law, changes to many threshold measures would be purely discretionary, subject to very relaxed judicial review or no review at all. This Article suggests that reliance interests in threshold measures warrant a more robust judicial role in assessing the means-ends fit of proposed rescissions, equivalent to intermediate scrutiny in equal protection cases. The prior factfinding and legislative support invested in reforms slated for rescission further justify more probing judicial inquiry. The approach urged here also supplies a welcome normative dimension to scholarly discussions of administrative constitutionalism. Scholars have highlighted agency readings to expand individual rights. President Obama’s administration did this in the context of ending the military’s ban on accession and retention of transgender service members. The Trump administration now wishes to partially roll back that inclusive measure.
Current officials’ approach to transgender accession and retention reveals that administrative constitutionalism is contested terrain: one administration’s salutary expansion of individual rights strikes a new administration as defaulting on responsibility, overreaching on power, and interfering with the rights of other parties. Nevertheless, there may be common ground, including former Defense Secretary Mattis’s decision to grandfather in transgender service members who acted in reliance on the Obama administration’s reform. However, the intermediate scrutiny applied here would invalidate most other components of the Defense Department’s transgender rollback, and would require further process and explanation before upholding a citizenship question on the census or the termination of DACA and TPS. Analyzing the means-ends fit of threshold rescissions promotes more effective deliberation about abrupt changes, while allowing a new administration to refine its rationale.
Friday, March 15, 2019
In early March, the White House arranged a meeting with representatives of U.S. universities and higher-education associations. The topic, unknown to participants until they showed up at the meeting: merit-based migration. This was a relief given concerns heading into the meeting -- that the government might be interested in cutting back on international students or restricting their ability to work.
Here is the most stunning description of the meeting: "White House officials expressed concern about the fall-off in international students coming to the United States and asked how to reverse it."
Because denial rates for student and work visas are on the rise. Attorneys have been forced to file federal lawsuits challenging the improper denial of visas. At the same time, the United States is planning to close overseas immigration offices, a move that lawyers say will increase the backlog for visas.
As I explored in a recent article, international students pay attention to U.S. immigration policy when weighing their choices about where to study and where to work after graduation. And right now, those policies don't look inviting.
If the Trump administration truly wants to court international students, and the potential for skilled labor they represent, it's got a lot of work to do.
A vote for today’s resolution by Republican Senators is a vote for Nancy Pelosi, Crime, and the Open Border Democrats!— Donald J. Trump (@realDonaldTrump) March 14, 2019
News from Washington. President Trump continues his tangle with Congress on immigration. Yesterady, every Senate Democrat and a dozen Republicans voted for a resolution disapproving of Trump’s emergency declaration attempting to provide funds fopr a US/Mexico border wall. The final vote was 59-41.
The dozen Republicans who broke with the President:
Lamar Alexander (R-TN)
Roy Blunt (R-MO)
Mike Lee (R-UT)
Jerry Moran (R-KS)
Lisa Murkowski (R-AK)
Rand Paul (R-KY)
Rob Portman (R-OH)
Mitt Romney (R-UT)
Marco Rubio (R-FL)
Pat Toomey (R-PA)
Roger Wicker (R-MS)
UPDATE (March 15, 1:15 P.M. PST): President Trump vetoed the resolution.
Thursday, March 14, 2019
You have been waiting for this:
Here are Secretary of Stat6e Pompeo's remarks upon the release:
SECRETARY POMPEO: Good morning, everyone. Since America’s founding, the concept of individual rights has been woven into the national fabric. As my friend and scholar Mary Ann Glendon has written, it has given weak members of our society, quote, “an instrument to amplify their voices” and also allows us to, quote, “train a spotlight” on the appalling violations of human life, liberty, and dignity that occur every day in many parts of the world.
Consistent with our strong rights tradition, today it is my honor as Secretary of State to announce the release of the 2019 Human Rights Report. Now, every year since 1977, the State Department has through this report put the world on notice that we’ll expose violation of human rights wherever they occur. We have told those who disgrace the concept of human dignity they will pay a price, that their abuses will be meticulously documented and then publicized.
By articulating abuses and pressuring noncompliant regimes, we can effect change. We’ve certainly seen that. Over the years, this report has pushed governments to change course and cease engaging in brutality and other abuses. We hope that it will continue to do so and cause oppressive regimes to honor human rights in places where those voices are often silenced and where deep yearnings for tolerance and respect have for too long gone unfulfilled.
This year’s report evaluates the practices of roughly 200 countries and territories. It represents a giant collaboration between hundreds of officers at U.S. missions around the world and here at the Department who are doing the Lord’s work in defending the dignity of their fellow man. I’m proud of each and every one of them.
I wish I could say that the record of every country evaluated in this year’s report is spotless or even improved, but it’s simply not the case.
Take Iran. Last year, the regime killed over 20 people and arrested thousands without due process just for protesting for their rights. The government banned media outlets from covering the demonstrations. This continues the pattern of cruelty that the regime has inflicted upon the Iranian people for the last four decades.
Meanwhile, in South Sudan, military forces waged sexual violence against civilians based on their political allegiances and their ethnicity.
In Nicaragua, when citizens peacefully protested social security benefits, they were met with sniper fire. Critics of the government have faced a policy of exile, jail, or death.
Then there’s China, which is in a league of its own when it comes to human rights violations. In just 2018, China intensified its campaign of detaining Muslim minority groups at record levels. Today, more than 1 million Uyghurs, ethnic Kazakhs, and other Muslims are interned in reeducation camps designed to erase their religious and ethnic identities. The government also is increasing its persecution against Christians, Tibetans, and anyone who espouses different views from those or advocates those of government -- or advocates change in government.
Even some of our friends, allies, and partners around the world have human rights violations. We document those reports with equal force. Our aim is always to identify human rights challenges and use American influence and power to move every nation towards better, more consistent human rights practices.
As I suggested at the beginning, our committed defense of human rights stems from America’s founding principles. It’s our tradition. America is founded on those self-evident truths that each of us is endowed with the rights that cannot be forfeited. They are the ones upon which no government anywhere in the world should be allowed to tread. Our Constitution codified those rights into law, and with time, they became not known as American rights, but more fundamentally across the world as human rights.
Internationally, indeed, they were incorporated in the Universal Declaration of Human Rights in 30 short articles. Scores of countries have looked to these documents for their inspiration as they drafted their own constitution and founded their own nations. Today, the State Department continues to play a leading role in championing human rights across the globe, honoring the vision of our founders and expressing our time-honored American aspiration for all people to be free.
By issuing today’s report, we deploy the truth – the truth about abuses occurring around the globe – as one of the most powerful weapons in America’s diplomatic arsenal. Thank you, and I’ll now turn it over for questions to Ambassador Kozak.
Immigration Article of the Day: All Watched Over by Machines of Loving Grace: Border Searches of Electronic Devices in the Digital Age by Sean O'Grady
All Watched Over by Machines of Loving Grace: Border Searches of Electronic Devices in the Digital Age by Sean O'Grady, Fordham Law Review, Forthcoming
The border search exception to the Fourth Amendment has historically given the United States government the right to conduct suspicionless searches of the belongings of any individual crossing the U.S. border. The federal government relies on the border search exception to search and detain travelers’ electronic devices at the border without a warrant or individualized suspicion.
The government’s justification for suspicionless searches of electronic devices under the traditional border search exception for travelers’ property has recently been called into question in a series of federal court decisions. In March 2013, the Ninth Circuit in United States v. Cotterman became the first federal circuit court to rule that a border search of an electronic device may require reasonable suspicion that its owner committed a crime due to the privacy impact of such a search.
The following year, in Riley v. California (a non-border search case), the U.S. Supreme Court explicitly endorsed the view that searches of cell phones implicate privacy concerns far beyond those implicated by searches of other physical items. Most recently, two divergent circuit court decisions, United States v. Kolsuz and United States v. Touset, lay bare the conflict in the federal circuit courts between a view that border searches of electronic devices are no different than those of other personal property — and an emerging sense that digital border searches merit additional scrutiny due to their increased likelihood to harm travelers’ Fourth Amendment privacy interests.
This Note proposes that courts should extend the logic of Riley to the border by treating searches of travelers’ electronic devices as distinctly more harmful to Fourth Amendment interests than searches of other types of property. This Note argues that border searches of electronic devices should be justified by a standard of at least reasonable suspicion in order to balance the necessity of border searches with the adverse Fourth Amendment impact caused by extensive searches of travelers’ digital devices.
Wednesday, March 13, 2019
Hundreds of migrants fleeing the South American nation of Venezuela have been welcomed in the generally anti-migrant European nation of Hungary. Who are these migrants and why is Hungary accepting them? The BBC has the deets.
Hungary has been accepting venzolanos who can prove that they have Hungarian ancestry. That might sound odd, but it turns out there have been two separate waves of Hungarian migration to Venezuela since WW2. Facing terrible conditions in present-day Venezuela, Hungarian-Venezuelans made a Hail Mary pass and sought help from Hungary. And despite general antipathy towards migration, Hungary obliged, seeing these migrants more as lost children than the interlopers seeking refuge in their nation from points South (Africa).
Immigration Article of the Day: Making Federalism Great Again: How the Trump Administration's Attack on Sanctuary Cities Unintentionally Strengthened Judicial Protection for State Autonomy by Ilya Somin
Making Federalism Great Again: How the Trump Administration's Attack on Sanctuary Cities Unintentionally Strengthened Judicial Protection for State Autonomy by Ilya Somin, Texas Law Review (Symposium on “Reclaiming—and Restoring—Constitutional Norms”), Forthcoming
“Sanctuary cities” - jurisdictions that refuse to assist federal government attempts to deport undocumented immigrants - have become a major focus of political conflict over immigration policy. The Trump administration’s efforts to punish sanctuary jurisdictions have led to multiple legal battles over constitutional federalism.
The administration’s crackdown on sanctuary jurisdictions has helped make federalism great again. It achieved this unintended outcome by generating a series of court decisions protecting state and local governments against federal coercion, and by leading many on the political left to take a more favorable view of judicial enforcement of constitutional limits on federal power.
This is the first academic article to attempt a comprehensive evaluation of the federalism issues at stake in the Trump-era litigation on sanctuary cities. The article assesses the three main sets of sanctuary cases that have arisen during the Trump administration: legal challenges to Trump’s January 2017 executive order targeting sanctuary cities, challenges to the Justice Department’s July 2017 policy of conditioning federal law enforcement grants on state and local government cooperation with efforts to deport undocumented immigrants, and the administration’s lawsuit against California’s “sanctuary state” law. So far, at least, all three have led to notable victories for advocates of constitutional limits on federal power.
The sanctuary litigation has also produced a noteworthy reversal of the usual ideological valence of judicial enforcement of federalism, with progressive “blue” jurisdictions relying on legal doctrines traditionally associated with the political right. Whether this helps trigger a more lasting shift in attitudes towards federalism remains to be seen.
Tuesday, March 12, 2019
In an article entitled "If Liberals Won’t Enforce Borders, Fascists Will," David Frum for the Atlantic makes the argument for immigration restrictions. It is generating controversy for sly use of facts and figures to make what sounds to be a palatable political argument. Despite the title, I do not see liberals as not "enforc[ing] borders."
The ending paragraph:
"Many Americans feel that the country is falling short of its promises of equal opportunity and equal respect. Levels of immigration that are too high only enhance the difficulty of living up to those promises. Reducing immigration, and selecting immigrants more carefully, will enable the country to more quickly and successfully absorb the people who come here, and to ensure equality of opportunity to both the newly arrived and the long-settled—to restore to Americans the feeling of belonging to one united nation, responsible for the care and flourishing of all its people."
Immigration Article of the Day: Bodily Inertia and the Weaponization of the Sonoran Desert in US Boundary Enforcement: A GIS Modeling of Migration Routes through Arizona’s Altar Valley by Geoffrey Alan, Samuel N. Chambers, and Sarah Launius
Bodily Inertia and the Weaponization of the Sonoran Desert in US Boundary Enforcement: A GIS Modeling of Migration Routes through Arizona’s Altar Valley by Geoffrey Alan Boyce, Samuel N. Chambers, and Sarah Launius
Monday, March 11, 2019
Rwanda has closed its border with Uganda, the BBC reports. It's a closing that is affecting many who travel routinely across the border for work and food, healthcare and education.
Rwanda is upset with Uganda, in part, because of efforts by Uganda to deport Rwandans from Uganda. Rwanda also accuses Uganda of torturing Rwandans in Uganda and planning a coup of Rwanda.
Uganda denies the allegations and, the BBC notes, several of those deported Rwandans were accused of espionage.