Friday, July 19, 2019
What a week. Four U.S. Congresswomen, all women of color, held a news conference denouncing racist remarks that President Trump made over the weekend. They said he's promoting a white nationalist agenda. The president doubled down, at one point tweeting in all caps, quote, "if you are not happy here, you can leave!" NPR's Andrew Limbong the deep roots of such language in the United States.
The controversy over the President's words does not seem to be going away. Although President Trump later claimed not to agree with his supporters, the rally cry of "send her back" at a North Carolina campaign rally made the national news (here and here). With seeming inspiration from the President's comments, a video of a convenience store employee was seen on a video that went viral that some Mexican immigrants had to "go back to their country."
Civil servants have long resisted presidential immigration policies. However, bureaucratic opposition to President Trump’s immigration directives is more united and widespread than it has been in response to any previous president. Moreover, while resistance to the policies of past administrations may have led to relenting by superiors, retaliation against resistance is the norm under the current administration, despite the fact that this resistance has resulted from principled “dissonance” between civil servants’ understanding of their core responsibilities and the priorities emphasized by new political directives. Rather than condemnation, however, frequent incidents of resistance from divergent factions of the immigration bureaucracy, particularly if met with a harsh response from the President, should be characterized as a “fire alarm” imploring a congressional response.
Thursday, July 18, 2019
I can't stop watching this clip of Trump supporters chanting "send her back!" in reference to naturalized U.S. Citizen and U.S. Representative Ilhan Omar.
The first time I saw the clip, I focused on the sound. It's cacophonous. So many voices. So much anger. It seems to fill the entire venue.
My 10 year old son was with me when I saw it the first time. I tried to explain who these people were, what they were chanting about, why it was so horrible, and why I was so upset. He was both confused and trying to comfort me when he said: "...but if she's an American citizen, they can't send her back!" (We'll see how sure he still is of that statement after he finishes They Called Us Enemy--George Takei's graphic novel about the Japanese internment, which also covers the government's efforts to deport U.S. citizens of Japanese descent like Takei's own mother).
As I rewatched the clip, I started to notice more than the noise. I started to notice all the people behind Trump.
More people than I first would have imagined are not chanting. Even though it sounds like everyone in the room has taken it up, look at the faces of those in the shot. There are at least nine who are not chanting. Sure, some are smiling. But is that the smile of someone in an uncomfortable social situation? I don't know. Others are clearly wearing stonier expressions.
There are the two women who seem to be shouting "send her back!" with their their entire selves. There's the woman at the bottom left of the screen in a MAGA hat. And there's the woman near the top right of the shot, wearing hot pink.
I also noticed the little girl. You can see her her just over Trump's left shoulder. She doesn't take up the chant immediately, but eventually she does. The woman standing right next to her is not chanting. Is that her mother? Just before BBC cuts this clip, the woman turns towards the little girl. Will she say something?
In 2002, the Southern Poverty Law Center released this report on Tanton's role in the organized anti-immigrant movement.
Tanton established several groups calling for reduced immigration and his ideas have influenced the immigration debate, perhaps even helping drive some of the immigration policies under President Donald Trump.
Dan Stein, president of a group Tanton founded that calls for sharp reductions in immigration, the Federation for American Immigration Reform (FAIR), said in a statement, that Tanton was a "remarkable giant of a man" and "[a] person with extraordinary persistence in promoting ideas based on a careful analysis of how today’s decisions affect the future."
Tanton has been accused of making racist remarks against Latinos and Catholics in his warnings against immigration from Latin America. His controversial statements include:
"I've come to the point of view that for European-American society and culture to persist requires a European-American majority, and a clear one at that," Tanton wrote in a 1993 letter.
In 1997 interview with the Detroit Free Press, Tanton compared immigrants to bacteria.
"In the bacteriology lab, we have culture plates," he said. "You put a bug in there and it starts growing and gets bigger and bigger and bigger. And it grows until it finally fills the whole plate. And it crashes and dies. That's the big picture. If you don't buy that, then there's nothing we can talk about."
In 1986 memo, he warned of Latino immigrant birthrates being higher than white birthrates. He warned of "fertile" Latino Catholics outgrowing white Protestants.
"Perhaps this is the first instance in which those with their pants up are going to get caught by those with their pants down," Tanton wrote.
Tanton warned of a "Latin onslaught," an idea that has gained traction among white supremacists.
Rebekah Entralgo on Think Progress reports that Congress member and Democratic Presidential candidate Joaquin Castro (D) has introduced legislation that would remove "aliens" and "illegal aliens" from the Immigration and Nationality Act. Here is his office's press release.
The Correcting Alienating Names in Government Act, or CHANGE Act, would eliminate the words “alien” and “illegal alien” from the Immigration and Nationality Act — the nation’s governing federal immigration law — and other government texts. The terms “foreign national” and “undocumented foreign national” would be used respectively in their place. Castro introduced a similar bill in 2015.
“Words matter,” Castro said in a statement. “It’s vital that we respect the dignity of immigrants fleeing violence and prosecution in our language. The words ‘alien’ and ‘illegal alien’ work to demonize and dehumanize the migrant community. They should have no place in our government’s description of human beings.”
Although not defined in the Immigration & Nationality Act, the emotion-laden phrase “illegal aliens” often is employed in the public debate over immigration. See Mae M. Ngal, Impossible Subjects: Illegal Aliens and The Making of Modern America (2004). Because the lawfulness of the status of some undocumented immigrants is not always clear, characterizing them as “illegal” is not entirely accurate. Restrictionists frequently decry “illegal aliens” and advocate their mass deportation from the United States. The use of the very term “illegal aliens” ordinarily betrays a restrictionist bias in the speaker. Similarly, the term “alien,” although literally the DNA of the INA which addresses in general terms the treatment of “aliens,” as opposed to citizens, has negative connotations. See Kevin R. Johnson, “Aliens” and the U.S. Immigration Laws: The Social and Legal Construction of Nonpersons, 28 U. Miami Inter-Am. L. Rev. 263 (1996-97); D. Carolina Nuñez, War of the Words: Aliens, Immigrants, Citizens, and the Language of Exclusion, 2013 BYU L. Rev. 1517.
Politico is running a story "Cucinelli bores his way into Trump's inner circle." The story reports that in the six weeks since President Donald Trump named him as acting head of the relatively obscure U.S. Citizenship and Immigration Services, Cuccinelli has become one of the president’s top lieutenants for his aggressive immigration agenda.
Cucinelli, who was formerly a state senator in Virginia, wanted to be considered for immigration czar (a job that doesn't currently exist) or DHS Secretary and may still be interested in a higher-level position. He has been commenting for media on many immigration policies, including the inclusion of a citizenship question on the census ("to help with the burden of illegal immigration") and the ICE raids announced to begin at the beginning of this week (they're "absolutely going to happen," then dialing back on operational details here). Politico says that "the move shows how Trump and Miller are eager to consolidate critical immigration decisions and messaging among a small group of like-minded individuals, without the vetting and oversight that would come from a more traditional bureaucratic structure." (While Cucinelli declined to be interviewed for the Politico article, a USCIS spokesperson said in a written statement that Cuccinelli was proud to be “under the leadership of both the acting secretary and the president.” Furthermore, he “is enjoying the job,” she added.)
Within USCIS, Cucinelli's initial actions at USCIS have moved the agency in the direction of enforcement and stirred tension with USCIS' employee union. His deputy on July 17 sent an email to USCIS employees asking them to offer volunteer assistance to the program forcing asylum-seekers to remain in Mexico while their cases are adjudicated: “Current conditions are placing extreme stress on our colleagues at Immigration and Customs Enforcement ... USCIS has agreed to seek USCIS volunteers to provide ICE with support... I appreciate your willingness to consider helping our colleagues fulfill the DHS mission.” The D.C.-based local union that represents 2,500 USCIS employees came out in opposition to the remain in Mexico program in a June 25 court filing that argued that the program could require asylum officers to participate in the “widespread violation of international treaty and domestic legal obligations — something that they did not sign up to do.” Cucinelli's response to the union said the union leadership was "play[ing] games while the border crisis intensifies" and that “USCIS must continue to do our part to help stem this crisis and better secure the homeland.”
It has been a memorable week in an administration filled with memorable weeks. Last Sunday, the President sent out tweets attacking Reps. Alexandria Ocasio-Cortez (N.Y.), Ayanna Pressley (Mass.), Rashida Tlaib (Mich.) and Ilhan Omar (Minn.), who have been critical of his administration; he tweeted that , by saying the four should “go back” to “the crime infested places from which they came.” All four of the Democratic congresswomen are U.S. citizens; only Omar, a Somali refugee who now is a naturalized U.S. citizen, was not born in the United States. Although many of the controversies surrounding the Trump administration come and go, the "send her back" chant looks like it may become part of the Trump campaign rallies.
Campaign 2020 is just beginning in a less than wholesome "let the best man/woman win" kind of way. CNN reports on a President Trump campaign rally yesterday in North Carolina that may foreshadow what the nation can expect in the upcoming presidential campaign:
"In a moment of unrestrained demagoguery, President Donald Trump presided Wednesday over a crowd chanting `Send her back! Send her back!' about an American Muslim congresswoman who he targeted with racist attacks.
The scenes at a North Carolina rally provided an ugly overture to a 2020 election campaign already soaked in hate. They exemplified the tribal politics and white nationalism that Trump is making clear he plans to ride to reelection, no matter their impact on America's fragile societal harmony.
The chants of `Send her back!' referred to Somalia-born, American citizen Rep. Ilhan Omar of Minnesota, one of four minority lawmakers attacked by Trump over the weekend. The invective from the crowd replaced the `Lock her up!' and `Build the wall!' chants of Trump's first campaign with a jarring racial refrain that the commander-in-chief, speaking from behind a podium bearing the symbolic presidential seal, made no effort to stop."
Immigration Article of the Day: A Step Too Far: Matter of A-B-, 'Particular Social Group,' and Chevron by Jaclyn Kelley-Widmer & Hillary Rich
Every day, thousands of Central American asylum seekers, many fleeing persecution from domestic abusers and gangs, attempt to seek refuge in the United States. To receive asylum, those escaping such violence typically must show that their membership in a “particular social group” is one central reason for their persecution. In Matter of A-B-, issued in June 2018, then-Attorney General Jefferson B. Sessions III restricted case law establishing domestic-violence-related particular social groups and attempted to destroy the viability of such claims altogether. As we demonstrate in this Article, this far-reaching decision should not receive Chevron deference from reviewing courts because it contravenes the intent of Congress.
A-B- is concerning both for its potentially calamitous effect on individuals fleeing domestic and gang violence and for the abrupt, unwarranted departure from established immigration law that it represents. As a result of A-B-, individuals, many of them women, are being subjected to both different and higher standards for certain aspects of their asylum claims and must “re-invent the wheel” of establishing that domestic violence can be a basis for asylum.
Federal courts reviewing immigration decisions normally apply the Chevron two-step framework to review agency decisions: first, has Congress defined the term at issue, or is it ambiguous? Second, if the term is ambiguous, is the agency interpretation of the term reasonable and therefore deserving of deference? Both steps of Chevron require a court to begin by using statutory interpretation to examine the meaning of the term.
In this Article, we provide a fresh analysis of the term “particular social group” through statutory construction, legislative history, and international context to find that there are some parameters around the term that are not ambiguous. Applying these parameters to A-B- at Chevron step one, we argue that A-B- is at odds with the meaning of particular social group because it incorrectly implies that there is a size limitation to meet the particularity requirement of a group, and because the decision raises the standard when the source of persecution is a private actor.
Turning to Chevron step two, we argue that A-B- contains fundamentally unreasonable interpretations of the remaining ambiguous elements of particular social group. For example, the decision contravenes the mandate that “particular social group” be a flexible category that can adapt to evolving humanitarian concerns. It also renounces consideration of the perspective of the persecutor in defining the group. In attempting to unilaterally foreclose an entire type of particular social group as a potential basis for asylum, Attorney General Sessions contradicts congressional intent, misinterprets precedent, and oversteps the discretionary authority afforded to the agency. Therefore, reviewing courts should not give A-B- Chevron deference.
Wednesday, July 17, 2019
US GAO: Nonimmigrant Investors: Actions Needed to Improve E-2 Visa Adjudication and Fraud Coordination
A new U.S. General Accountability Office (GAO) GAO report addresses issues related to the E-2 visa, which allows eligible foreign nationals (including their spouses, children, and certain employees) to be temporarily admitted to the United States to work for a business in which they have invested a substantial amount of capital.
The report addresses
(1) outcomes and characteristics of foreign nationals who sought or received E-2 status from fiscal years 2014 through 2018;
(2) policies and procedures for ensuring that individuals meet E-2 eligibility requirements, and;
(3) efforts to assess and address potential E-2 fraud.
Some of the findings include:
- Currently, foreign nationals from 82 countries may obtain E-2 status in the United States. To do so, a foreign national can apply through the State Department for an E-2 visa abroad, or if already in the United States, by petitioning U.S. Customs and Immigration Services (USCIS) to extend or change to E-2 status.
- Taken together, State and USCIS adjudicated an annual volume of over 50,000 E-2 visa applications or petitions from fiscal years 2014 through 2018. State accounted for over 80 percent of these adjudications. About 90 percent of State’s E-2 visa applications were issued, and about 83 percent of USCIS’s E-2 petitions were approved.
- State and USCIS have guidance, procedures, and training intended to help consular and immigration officers ensure foreign nationals meet E-2 eligibility requirements; however, officials from both agencies identified challenges in the E-2 adjudication process. For example, consular officers noted that E-2 visa adjudications are particularly complicated and resource-intensive, and stated that additional training is needed.
- State and USCIS view the risk of E-2 fraud differently and interagency coordination on E-2 fraud efforts has been limited. State officials generally considered E-2 visa fraud to be lower risk relative to other visa categories, and USCIS officials stated they consider E-2 fraud to be a significant issue and are taking actions to address it going forward.
GAO is making 5 recommendations to the Department of State and USCIS, including that State provide more E-2 training or resources to consular officers, and that State and USCIS establish a regular coordination mechanism to share information on E-2 fraud risks.
Check out this compelling new article from ProPublica: A Border Patrol Agent Reveals What It’s Really Like to Guard Migrant Children.
The article features interviews with a veteran Border Patrol agent who was pulled from his day-to-day job on the East Coast to work a stint in McAllen, Texas, supervising migrant children. The agent agreed that the reports on poor conditions were "more substantiated than not." Indeed, his first impression was of a "scene from a zombie apocalypse movie" with "sickness and filth everywhere."
As for why it was permitted to get so bad, the agent opined:
Somewhere down the line people just accepted what’s going on as normal. That includes the people responsible for fixing the problems.
Interestingly, the article delves into how this agent managed to cope with what he saw and experienced in McAllen. Basically, he shut down. He walled off his motions and refused to dwell on what he say. He kept his head down, did his job, and started looking forward to retirement.
The nation mourns the passing of retired Justice John Paul Stevens at age 99. Besides his iconic status in the development of the law in many different areas, Justice Stevens penned some important immigration opinions.
Justice Stevens wrote for the majority in INS v. Cardoza-Fonseca (1987), which held that the evidentiary burden for prevailing on an asylum claim is more generous than the burden for prevailing on a withholding of deportation claim. Justice Stevens distinguished his administrative law decision in Chevron, refusing to defer to the agency's immigration interpretation of the immigration statute because it was inconsistent with the statute. He concluded the opinion as follows:
"Deportation is always a harsh measure; it is all the more replete with danger when the alien makes a claim that he or she will be subject to death or persecution if forced to return to his or her home country. In enacting the Refugee Act of 1980 Congress sought to `give the United States sufficient flexibility to respond to situations involving political or religious dissidents and detainees throughout the world.' . . . Our holding today increases that flexibility by rejecting the Government's contention that the Attorney General may not even consider granting asylum to one who fails to satisfy the strict [withholding of removal] standard. Whether or not a `refugee' is eventually granted asylum is a matter which Congress has left for the Attorney General to decide. But it is clear that Congress did not intend to restrict eligibility for that relief to those who could prove that it is more likely than not that they will be persecuted if deported."
In one of his last opinions before retirement, Justice Stevens wrote for a majority of the Court in the blockbuster crimmigration case of Padilla v. Kentucky (2010). In that case, the Court held that the Sixth Amendment requires counsel to inform a noncitizen client that a plea may carry immigration consequences, including removal. The holding in Padilla has had a dramatic impact on criminal removals that were ramped up under President Obama and later President Trump. Justice Stevens noted the human impacts of removal:
In INS v. Elias-Zacarias (1992), Justice Stevens delivered a heated dissent to the majority's interpretation of the requirement of a nexus between political opinion and feared persecution necessary for asylum. He warned against construing "political opinion" in a manner that limits the benefits of our immigration laws to those who adhere to a political extreme. In addressing the majority's refusal to recognize Elias-Zacarias's case as establishing the requisite fear of persecution, Justice Stevens pointed out that, "Guerillas do not inquire into the reasoning process of those who insist on remaining neutral and refuse to join their cause. They are only concerned with an act that constitutes an overt manifestation of a political opinion." Elias-Zacarias was denied asylum in the United States.
"Congress's provision for broad asylum eligibility and strictly tailored exceptions, such as safe third country agreements, mean that executive officials lack the power to unilaterally impose categorical restrictions. Passage through a third country may be one factor among many in determining eligibility for the discretionary remedy of asylum, but it cannot be the sole test. Yet that exclusive test is what the new third country rule purports to create."
Immigration Article of the Day: A Justice School: Teaching Forced Migration Through Experiential Learning by Lauren Gilbert
A Justice School: Teaching Forced Migration Through Experiential Learning by Lauren Gilbert, 14 Intercultural Hum. Rts. L. Rev. 129 (2019)
The need for committed and competent public interest lawyers has never been greater. We are at a unique juncture in U.S. history where there is both a supply and demand for social justice lawyers. Law schools, however, still fall short in their support and preparation of students who want to be public interest lawyers. Legal education still tends to reproduce social hierarchies, channeling top students into high paying jobs at big firms, with only the very top and most persistent students qualifying for judicial clerkships or a handful of prestigious fellowships. It is vital that students see from Day One of law school that they can use their legal training to make a positive difference in the world, and that throughout their three years of law school they learn the doctrine, develop the litigation skills, and have the kinds of experiential opportunities that will prepare them for this work.
This article demonstrates how experiential learning in law school can prepare students for the practice of law and, if done well, instill in them a life-long commitment to social justice. The success of these efforts ultimately turns on working collaboratively with student leaders with a shared commitment to immigrant justice, winning the support of key people in the administration, and ensuring that the experience for students is both emotionally and intellectually rewarding. Our signature achievement was the Karnes Pro Bono Project. Teams of students have, on three separate occasions, worked side by side with attorneys and staff from RAICES, the Refugee and Immigrant Center for Education and Legal Services, at the Karnes family detention center, assisting Central American parents and children through the credible fear screening process and helping them qualify for asylum and release from detention. Not only have the students acquired a deeper understanding of the legal, political, and practical obstacles to asylum faced by refugees at the border. They have had the deeply moving and transformative experience of meeting with detained families seeking asylum, hearing their testimonials, preparing their statements, counseling them, helping them through the credible fear screening process, and ultimately learning their fates.
Tuesday, July 16, 2019
The American Civil Liberties Union, Southern Poverty Law Center, and Center for Constitutional Rights filed a federal lawsuit today challenging the Trump administration’s new asylum restrictions.
The following comments are from:
ACLU attorney Lee Gelernt: “This is the Trump administration’s most extreme run at an asylum ban yet. It clearly violates domestic and international law, and cannot stand.”
Baher Azmy, Center for Constitutional Rights legal director: “This is the latest — and deeply dangerous — effort by the Trump administration to inflict maximal cruelty on vulnerable people fleeing desperate conditions for safety here. This rule also serves to project the administration's rejection of the fundamental, international post-war consensus that human rights matter. They still do, and this suit seeks to vindicate their value.”
Melissa Crow, senior supervising attorney at the Southern Poverty Law Center’s Immigrant Justice Project: “This administration’s relentless war on asylum seekers is nothing short of despicable. Through policy after policy, this administration has manufactured the crisis at our southern border. The new rule would only make this situation worse, while jeopardizing the safety and security of countless migrants fleeing persecution.”
The lawsuit was filed in U.S. District Court in San Francisco.
Here is the Complaint.
Congress is exercising political oversight over the USCIS through its hearing on the backlog in naturalization applications and other USCIS adjudications on Tues July 16, 2019. The Immigration and Citizenship Subcommittee's oversight hearing can be viewed here.
U.S. Representatives Jesús “Chuy” García (IL-04) and Jimmy Gomez (CA-34) with the National Partnership for New Americans (NPNA), Unidos US, CASA, Coalition for Humane Immigrant Rights (CHIRLA), Immigrant Legal Resource Center (ILRC) held a press conference immediately preceding the hearing.
The outcry against the backlog has been building for more than a year out of deep concern that the current administration is aggressively pursuing a cruel enforcement agenda against children and families while they deny the estimated nine million lawful permanent residents currently eligible to naturalize full participation in public life and our democracy. Given how long the naturalization process can take, the speakers will appeal to those eligible for citizenship to “Naturalize Now.”
UPDATE 7/17/2019: Summary and analysis of the Congressional hearing from Forbes.
Interesting -- and revealing -- legal statistics showing the Trump administration's prosecutorial priorities:
Prosecutions for sex trafficking of children under a law used against financier Jeffrey Epstein last week are down 26.7 percent over the past fiscal year, according to the latest available data from the Justice Department.
During the first eight months of FY 2019 the government reported 108 new prosecutions for sex trafficking of children under Title 18 Section 1591. This is the chief statute federal prosecutors in the Southern District of New York (Manhattan) used in the Epstein charges.
If the present pace of such prosecutions continues, the fiscal 2019 total will be 162, compared to 221 last year. According to the case-by-case records analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University, this is the second year in a row such prosecutions have fallen, a reversal of the growth trend during the Obama years. (See Figure 1 above). Vertical bars represent the number of prosecutions of this type recorded each fiscal year. Projected figures for the current fiscal year are shown. Each presidential administration is distinguished by the color of the bars.)
Compared to five years ago, the estimate of FY 2019 prosecutions of this type is down 32.2 percent, from 239. However, prosecutions over the past year are still much higher than they were ten years ago, up 90.6 percent from the 85 reported in 2009. (See Table 1 above.) And overall federal prosecutions for all crimes are up significantly since 2016.
Spike in Unaccompanied Child Arrivals at U.S.-Mexico Border Proves Enduring Challenge; Citizenship Question on 2020 Census in Doubt
Migration Information Source
A symposium in the Indiana Health Law Review looks at what happens when immigration and health policy collide, historically and in the current administration. The annual Indiana Health Law Review Symposium, "The Intersection of Immigration and Health Policy," featured nationally renowned experts on the issues surrounding this national debate on October 26 at the Indiana University Robert H. McKinney School of Law. Here are the articles in the symposium:
Monday, July 15, 2019
Amy Howe for SCOTUSBlog writes on how the Trump administration’s efforts to build a wall along the U.S.-Mexico border came to the Supreme Court late last week. The U.S.l government asked the justices to block a lower-court order that barred the government from using $2.5 billion in Pentagon funds for construction of the wall.
The lawsuit was filed by the Sierra Club, an environmental group, and the Southern Border Communities Coalition. They argued that government officials exceeded their authority when the Department of Defense redirected $2.5 billion earmarked for military-personnel funds to use in construction of the wall.
A federal district court barred the government from using the money for border-wall construction, and on July 3 a federal appeals court rejected the government’s request to put a hold on that decision pending appeal.