ImmigrationProf Blog

The big exodus of Ukrainian refugees isn’t an accident – it’s part of Putin’s plan to destabilize Europe

Mass migrations may have foreign policy consequences.  In " The big exodus of Ukrainian refugees isn’t an accident – it’s part of Putin’s plan to destabilize Europe" in The Conversation, Mark A. Grey argues that Putin hopes that Russia's invasion of Ukraine will force civilians flee, part of a broader strategy to overwhelm other countries with new refugees and destabilize their economies.  Grey notes that, although nations like Poland initially opened their doors to Ukrainian refugees, patience is wearing thin.

KJ

TikTok videos help migrants cross border

 

TikTok activist Carlos Eduardo Espina is using the social media app to help migrants understand the U.S. immigration system and cross the border safely in Spanish.  See this Associated Press report. "The quick format of the videos, where you’re able to watch a TikTok in 10 seconds and then watch another one, is really convenient for immigrants — especially if you’re on the move — you’re going through Mexico or through Central America," said Espina, a U.S. citizen who immigrated to Texas as a child. "I’ve been blessed in this country to be able to go to school. Now I’m in law school. I’ve been able to work. I’ve been able to contribute," he added. "I want people at the end of the day to be safe, to be secure, and to not make decisions that could potentially put their lives in danger." 

KJ

California Governor Wants to Expand Medi-Cal to All Undocumented Immigrants by 2024

Official State of California Photo

Undocumented immigrants are ineligible for federal public benefits.  Tyche Hendrick from KQED reports on California Governor Gavin Newsom's proposed budget would make this the first state in the nation to extend safety-net health care coverage to all residents, regardless of immigration status.

"[E]ven with an unprecedented budget surplus, plans to further expand social programs will have to contend with a state spending limit approved by voters in 1979, along with uncertainty about where the state economy is headed and resistance from fiscal conservatives. Since 2016, California has expanded Medi-Cal to undocumented children and, beginning this month, adults over age 50. Newsom's plan, first announced in January, would cover the last remaining group: roughly 700,000 undocumented adults, age 26 to 49, at a cost of $800 million next year and $2.7 billion in future years. If the governor's Medi-Cal expansion is enacted, though, it won't take effect until 2024."

KJ

Flores Settlement News

LEXIS NEXIS Legal Newsroom Immigration has the latest news on the Flores settlement, which governs the detention of migrant childen.  Peter Schey reports that:

"After two years of negotiations, we have reached a settlement with the U.S. border patrol that for the first time sets detailed standards for the safe detention of immigrant children. . . . 

The 61-page agreement was reached two years after we challenged the conditions of children's detention in border patrol facilities in Texas where tens of thousands of minors were held during the Trump administration. A court filing on Saturday May 21, 2022, seeks U.S. Judge Dolly M. Gee's preliminary approval of the settlement. The border patrol has agreed to a wide range of protocols requiring that detained minors are held in safe and sanitary conditions, not be separated from relatives, and have access to medical evaluations and prompt medical treatment when needed.

 

The settlement requires that the border patrol treat minors in custody with "dignity, respect and special concern for their particular vulnerability as minors," and that it place each detained minor "in the least restrictive setting appropriate to the class member’s age and special needs." It also requires that except when operationally infeasible, minors apprehended with an adult family member “shall remain with that family member” during their time in border patrol custody. If a minor is temporarily separated from an accompanying relative they have the right to visitation with that relative while in border patrol custody. The Trump administration caused a public backlash when it separated thousands of children from their parents.

 

The agreement also requires that minors detained by the border patrol are granted access to showers, hygiene kits, age-appropriate meals, clothing, mattresses, and blankets. Border patrol facilities will be required to maintain a stock of clothing in a variety of sizes that can be distributed to detained minors. Parents detained with infants must be provided items such as swaddling blankets and diapers.

 

The agreement requires the appointment of an independent medical expert who will have access to border patrol facilities in the Rio Grande and El Paso sectors to monitor compliance with the terms of the new agreement. The agreement will remain in effect for two and half years during which time we will also have the right to enter border patrol facilities to interview detained minors and monitor compliance with the agreement. 

 

The settlement requires that border patrol agents be trained regarding the agreement’s terms and display a poster and show a video to minors describing their rights. It also requires that minors or their accompanying relatives be provided a list of local free legal services. 

. . . .

The parties’ joint motion for preliminary approval of the settlement is available at this link. A copy of the parties’ settlement is available at this link. Exhibit 1 to settlement (poster) available at this link. Exhibits 2-4 to settlement available at this link. The parties proposed Class notice is available at this link."

KJ

Immigrant of the Day: Albert Pujols (Reprise!)

Cxxnnxxr, CC BY-SA 4.0, via Wikimedia Commons>

Albert Pujols, the major league baseball player with the St. Louis Cardinals, is no stranger to being immigrant of the day. Kevin highlighted him in 2007 when the Dominican-born player became a U.S. citizen, and again in 2017 when Pujols was on the verge of hitting his 600th home run (which he did and more).

Here's the thing about baseball. You've got hitters/fielders and you've got pitchers. They're different folks. Different skills. There's typically no crossover.

Pujols is, as you might guess, a hitter. He played first base for the cardinals for years. Then transitioned to becoming the team's designated hitter. That, for non-baseball folks, means he would step up and hit in lieu of the pitcher. Those 600+ home runs he's hit have many lauding him as a shoo-in for baseball's Hall of Fame once he retires.

Then came Sunday, May 15. The Cardinals were playing the Giants (S.F.). It was a blowout. In bottom of the eighth inning the Cards were ahead 15-2. The team's manager was looking around for someone to pitch the 9th so the team could avoid using a reliever. Pujols, 42, who had never before pitched, took the bait. He gave up 4 runs, but closed out the inning at 15-6.

After the game, Pujols told reporters it was: "A dream come true to say that I did it... It was fun. It wasn’t fun giving up two bombs. I think the fans had a good time. I’m sure the guys that took me deep did, too.”

You can watch his pitching here:

-KitJ

Compelled migration for Puerto Ricans seeking public assistance

The New York Times features a personal story on Puerto Rican citizens forced to move to mainland for public assistance, given their ineligibility for public programs desipte US citizenship.

As the article explains, Puerto Ricans still do not have access to the same social safety net as other U.S. citizens. Cuts in special education and social services have exacerbated the situation. As a result, "People who are disabled or care for children with special needs must routinely relocate to the 50 states to get care." It points out the problem that contains a solution:

Last month the United States Supreme Court could have ended this disparity. Instead, it held that Congress has the right to deny disability benefits to residents. While disheartening, the ruling was hardly surprising. The court used the same racist logic that for over a century has affirmed second-class citizenship for Puerto Ricans.

MHC

Fact-check: Do most people released from immigration authorities attend court hearings? YES

 

Politifact once again rebuts the Republican urban legend that noncitizens released from detention fail to appeal at hearings in immigration court.  It examines the truthfulness of Senator James Lankford's (R-Oklahoma) statement that “[t]he vast majority of individuals that we’re releasing out are not showing up for hearings.”

PolitiFact's ruling: False

Click the link above to look at the explanation of why Senator Lankford's statement, part of President Trump's talking points on immigration, is false.  The punch line:

"There are different ways to track how many immigrants don’t show up to immigration court hearings, and all indicate that a majority of immigrants, including those who are not detained, do attend their hearings. Data from the Justice Department show that in fiscal year 2021 and during the first quarter of 2022, most immigrants attended their hearings.

We rate Lankford’s claim False."

KJ

 

Immigration Disappears From Kamala Harris’ Public Schedule

Official White House Photo

Remember when Vice President Kamala Harris was the Biden administration's point person on immigration.  That has changed, according to Philip Wegmann for Real Clear Politics:

"[A]s the flow of migrants accelerates across the southern border, immigration has disappeared from the vice president’s public schedule.

A compilation of that schedule by the Los Angeles Times, reviewed by RealClearPolitics, shows that Harris has not hosted an immigration-specific event since last summer. . . . 

White House officials dispute any characterization that Harris’ public schedule tells the whole story. `The vice president continues to lead implementation of the Root Causes Strategy and has been engaging with Cabinet and other Administration officials on this effort,' Harris’ Press Secretary Kirsten Allen told RCP."

Vice President Harris's lack of action on immigration has gotten the attention of Fox News.  Progressives also have lamented her lack of action on immigration and other critically important issues.

Immigration is a big issue in the mid-term elections.  Focusing in no small part on tough immigration enforcement, for example, J.D. Vance won the Republican primary for Senate in Ohio.  

KJ

Boxer's Father/Trainer Unable to Get Visa for a Major Fight in Australia

 

A Super Fight Down Under And I Will Reign Supreme On June 5th At Marvel Stadium Defending All My Belts And Adding Another One To My Collection 🇦🇺⚔️🇬🇷

🎫 Limited Tickets Left Don’t Miss Out On Watching History And Brutality 😈 pic.twitter.com/QcEUi40oR5

— George "Ferocious" Kambosos Jr (@georgekambosos) May 6, 2022

Earlier this year, Australian Open champion Novak Djokovic was unable to defend his 2021 title after the Australian government canceled his visa.  The nation has a long history of tough immigration enforcement.  For a look at Austrlian's contemporary immigration policies, click here.

Now the Australian government has failed to issue a visa in connection with a major sporting event.  WBC lightweight champion Devin Haney’s father/trainer Bill Haney has been denied entrance into Australia for him to work his son’s fight against the undefeated George Kambosos Jr. on June 5 in Melbourne. Bill says he has been denied entrance into Australia because of a 1992 drug conviction.  

As a result, Bill Haney will not be working Devin Haney’s corner for fight against Kambosos (20-0, 10 KOs)

“I did some mistakes at 22, 23-years-old that Devin is now that hopefully, he’ll never have to make the mistakes,” said Bill Haney to Trill Boxing Talk. 

 

KJ

Federal Court Enjoins Lifting of Title 42 Order

 

Biden administration to appeal court’s ruling on roll back of Title 42 https://t.co/iChE0bHXGX pic.twitter.com/o8qQlm0661

— The Hill (@thehill) May 21, 2022

CNN and other news agencies report that a federal district court in Louisiana entered a preliminary injunction blocking the Biden administration from ending the invocation of Title 42 to allow mass expulsions along the US/Mexico border. The Title 42 order had been set to end on Monday. 

A Trump appointee, Judge Robert R. Summerhays, who entered the injunction, previously was a bankruptcy judge.  In the ruling, Judge Summerhays found that the plaintiffs (Arizona and some other states) had shown a likelihood of success on the merits of a claim that the Biden administration had failed to comply with the notice and comment provisions of the Administrative Procedure Act.  The Biden administration has said that it will appeal the ruling. 

After allowing the Trump-era policy to remain in place for months, the Biden administration had decided to lift the order later this month.

KJ

CNN: Ireland gives warm welcome to Ukrainians fleeing conflict. Asylum-seekers from elsewhere point to unequal treatment

Image of Flag of Ukraine courtesy of Wikimedia Commons

Commentators have observed the warm welcome offered the world to Ukrainian refugees, who have been treated as white Europeans, and refugees of color from, for example, Syria and Afghanistan.  Ireland has been one nation accused of "hypocrisy" in its disparate treatment of refugees.

Niamh Kennedy and Donie O'Sullivan for CNN report on the Irish treatment of Ukrainian refugees:

"Ireland . . . has taken in more Ukrainian refugees than many of its larger Western European neighbors. [S]o far more than 30,000 refugees have arrived. . . . Ukrainian refugees have so far been mainly housed in hotels, B&Bs and volunteers' homes. . . . [T]he Irish government has plans to repurpose vacant vacation homes, convents and student halls to accommodate further arrivals. . . . Prime Minister Micheál Martin has repeatedly pledged not to place a cap on the number of Ukrainian refugees that Ireland takes in.

Not all are pleased with the Irish government's response, however. Ireland's warm welcome of Ukrainian refugees has reignited a fractious debate about its treatment of asylum-seekers fleeing other conflicts in places such as Afghanistan and Syria.

 

Over the years, the country has been repeatedly criticized for the way it deals with asylum-seekers. Under its direct-provision system, asylum-seekers are housed in temporary accommodation as they wait to find out if they have been granted refugee status. Initially introduced as an emergency measure in 1999 in response to higher numbers of asylum applications, and subsequently formalized in 2020, the reception system has become mired in controversy in the two decades since.

Asylum-seekers have lodged many complaints about the system's lengthy processing times, substandard accommodation and impingement on core rights including, notably, the right to work.

 

It has drawn criticism from . . . the United Nations High Commissioner for Refugees (UNHCR), who in a 2015 report said long stays in direct provision impeded asylum-seekers from integrating properly into Irish society." (bold added).

 

KJ

Race and Politics in mass shooting at OC Taiwanese Presybterian Church

As reported by  Bill Ong Hing and KJ for the ImmigrationProf blog, white nationalism can lead to violence and racially motivated crimes. Beyond the Buffalo shooting they describe, a second hate crime occured the same weekend in a Taiwanese Presbyterian church. David Chou, a Chinese-American US citizen, drove to Orange County, California and engaged in a mass shooting at the Irvine Taiwanese Presbyterian church that killed and critically injured mostly elderly, Taiwanese churchgoers.

According to authorities, he is from Las Vegas and drove for hours to the Laguna Woods retirement community where the Geneva Presbyterian Church hosts multiple services, including the Taiwanese service in question. He spent a social hour mingling with about 40 attendees and then executived his destructive plan. Chou chained the doors and put super glue in the keyholes before opening fire. In the ensuing chaos, parishioner Dr. John Cheng tackled him, allowing other parishioners to tie him up with extension cords. Cheng died and five people were wounded: four Asian men (ages 66, 75, 82 and 92) and an Asian woman (86-years old). Chou was booked on suspicion of murder and attempted murder; he was jailed on $1 million bail. 

The murder is being investigated as a federal hate crime, but for the most part, it is being reported by mainstream media as politically-motivated rather than racially motivated. What's the difference between this hate crime and the hate crime waged by a white nationalist against Black shoppers in Buffalo that happened the same weekend? Why, like the mass killing of Asian women in Atlanta one year ago, is there a reluctance to examine crimes against Asian Americans, which have risen during COVID-19, as racially-motivated?

For some additional context, China/Taiwan relations have a complicated history and have grown more tense since the Russian invasion of Ukraine has overtaken global attention. Asian American intergroup differences and the role they play in panethnic and racial categorization is discussed in the seminal work by Yen Le Espiritu. The intermingling of race and religion in the Taiwanese Presbyterian church, and its support for Taiwanese independence from China, is studied by Caroline Chen. 

MHC

 

Guest Post: Patel v. Garland Missed the Real Issue by Professor Geoffrey Hoffman

Patel v. Garland Missed the Real Issue by Professor Geoffrey Hoffman

The real issue in Patel v. Garland should not have been whether a "factual determination" was subject to judicial review under 8 USC 1252(a)(2)(B)(i), but rather instead whether a legal question or, more precisely, a mixed question of law and fact, should have been subject to judicial review. The answer, if the real question was addressed, is clearly "Yes".  As the majority recognized, section 1252(a)(2)(D) would have applied allowing for review over legal questions and constitutional claims.  

As Mr. Patel's claims were framed and conceived of by the court, it appeared he was arguing that the IJ's and BIA's determination that he was "not credible" was erroneous. What he argued at the Eleventh Circuit according to the majority was that "any reasonable judge would have been 'compelled to conclude' that his testimony was credible and that he had made an honest mistake on the form."  But, that should not have been the issue at all. Rather the real issue was as follows:  Whether the IJ and BIA erred as a matter of law in applying the ground of inadmissibility for a false claim to US citizenship under 8 USC  1182(a)(6)(C)(ii)(I).

Interestingly, Mr. Patel was apparently not charged in the NTA with a false claim to US citizenship but instead with an illegal entry under 1182(a)(6)(A).  Nevertheless, he was potentially subject to all grounds of inadmissibility when he applied for adjustment of status as a mode of relief from removal and therefore the burden was on him to prove that he was not inadmissible. To be inadmissible for a false claim to US citizenship, however, as provided explicitly in the statute he would have had to have made the false claim in order to seek a benefit under the INA, or a benefit under state or federal law.  The text of 1182(a)(6)(C)(ii) is as follows:  inadmissibility attaches to an “alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States for any purpose or benefit under” state or federal law.  (emphasis added).

Importantly, it appears Mr. Patel would not have obtained any benefit under state law by checking the box as a US citizen since he was otherwise entitled to a driver's license in Georgia since at the time he was an applicant for adjustment and had work authorization.   This fact was noted in Justice Gorsuch's dissenting opinion, at page 3,

"Under Georgia law, Mr. Patel was eligible to receive a license without being a citizen because he had a pending application seeking lawful permanent residence and a valid employment authorization document. See Ga. Comp. Rules & Regs., Rules 375–3–1.02(3)(e), (7) (2022)."

Thus, it was most obviously a mixed question of law and fact at issue since the immigration court was asked to apply the statute and specifically the sub-part of 1182(a)(6)(C) that relates to whether or not the immigrant sought to obtain any benefit under the INA, state or federal law.  This means the issue was not just whether Mr. Patel was credible, but whether in checking the box he sought to obtain a benefit under state or federal law as that phrase is understood in the INA.  In addition, what is or is not a benefit and what state law says or does not say is most decidedly a legal question. The IJ and BIA apparently  either did not address the issue or they ruled against him because they thought he had sought a benefit. Either way, the IJ and BIA would have erred and therefore it was a "legal" error in applying the statute and not just a "factual" error in not believing Mr. Patel's testimony or ruling against his credibility. 

Interestingly, this point was not made by either majority or dissent. Justice Gorsuch comes close to articulating the point, but stops short by not recognizing that the error below was not only a factual mistake but a legal one as well. The decisions of both the majority and dissent also do not recognize the following point that should be emphasized as well going forward:  nothing in the decision should be read to foreclose judicial review in any case where there exists a legal question or constitutional claim under 8 USC 1252(a)(2)(D).   Since all mixed questions of law and fact are a form of "legal questions" requiring de novo review then judicial review should be unaffected in such cases.

Finally, the case of Guerrero-Lasprilla v. Barr, 589 U. S. ___ (2020), is related in that the Supreme Court already has found, as noted by the majority, that application of a legal standard to undisputed facts is still reviewable even despite the jurisdiction-stripping provisions in 8 USC 1252. On pages 9-10 of the majority opinion, Justice Barrett cites and relies upon In Guerrero-Lasprilla. Although the "facts" in Guerrero-Lasprilla were undisputed that does not mean that in any case where they facts are disputed there is no judicial review. Rather, so long as there still is a "legal question" then section 1252(a)(2)(D) applies.  To interpert the statue otherwise would be to misconstrue Congressional intent to shield or prohibit review of mixed questions from review.

Geoffrey Hoffman

Individual Capacity Institution for ID only

Clinical Professor, University of Houston Law Center Immigration Clinic Director

KJ

Update (May 19, 445 P.M. PST)  Shoba Sivaprasad Wadhia analyzes the opinion for SCOTUSBlog here.  Her conclusion:

"This case sheds light on the problems in our immigration system and the importance of legislative reform. Patel has lived in the United States for nearly 30 years. He has a wife and three children. And now Patel, who was in the process of applying for a green card, could face deportation without judicial review because he checked the wrong box on a driver’s license application. Under President Biden’s Executive Order on Advancing Racial Equity, DHS and DOJ should collect data on adjustment cases involving facts like Patel’s that may have a disparate impact on certain groups of noncitizens."

KJ

 

Immigration Article of the Day: Gender-Based Religious Persecution by Pooja Dadhania

Gender-Based Religious Persecution by Pooja Dadhania, 107 Minnesota Law Review (Forthcoming)

Abstract

People fleeing gender-based violence in the home face an uphill battle when seeking asylum in the United States. Through the lens of public and private spheres, this Article explores the underutilized religion ground for asylum for cases involving gender-based violence in the home—i.e., the private sphere. This Article argues that if an individual imposes a patriarchal practice on an asylum seeker in the private sphere and justifies that practice using religion, the asylum seeker’s resistance to that practice should constitute religious expression.

The religion ground protects individuals who are persecuted because of their religious beliefs and religious expression. It typically is invoked by individuals fearing persecution in the public sphere for activities such as proselytizing and communal worship, where proving the link—the nexus—between the persecution and the asylum seeker’s religious beliefs or expression is relatively straightforward. Asylum seekers infrequently invoke the religion ground for abuse in the private sphere, however, due to that nexus requirement. Nexus requires an asylum seeker to show that the persecution is on account of their protected characteristic, not the characteristic of the abuser. At first glance, claims involving gender-based violence in the private sphere seem to involve individuals imposing their religious beliefs on others, which generally would not qualify for asylum.

Where an asylum seeker resists a patriarchal practice in the home that is justified by religion, that resistance should constitute a “private expression” of religion, regardless of whether the asylum seeker frames their resistance in religious terms. If the asylum seeker is harmed for their opposition to a patriarchal practice justified by religion, the persecution is on account of their religious views opposing those of the persecutor and thus satisfies the nexus requirement. This Article thereby reframes gender-based violence in the private sphere as gender-based religious persecution. While encouraging a broader interpretation of the religion ground to better protect individuals fleeing gender-based violence, this Article concludes with a caution against essentializing religion and attributing such violence to a religion wholesale.

KJ

Ahn v. The GEO Group, et al. Filed in Federal Court

Rights Behind Bars, the California Collaborative for Immigrant Justice, and Centro Legal de la Raza, have filed a federal lawsuit against Immigration and Customs Enforcement (ICE), the GEO Group, and the City of McFarland, California to bring accountability for the wrongful death of Mr. Choung Woong Ahn in immigration detention in 2020.

Here are highlights from the press release:

On the second anniversary of the passing of Mr. Choung Woong Ahn, his family and legal team filed a lawsuit in federal court to seek justice and accountability for his torture and wrongful death at an immigration detention center. Mr. Ahn was a 74-year-old South Korean immigrant who died in custody at the Mesa Verde ICE Processing Center on May 17, 2020, a facility owned and operated by The GEO Group, Inc. Mr. Ahn’s family, represented by Rights Behind Bars, the California Collaborative for Immigrant Justice, and Centro Legal de la Raza, have named Immigration and Customs Enforcement (ICE), the GEO Group, and the City of McFarland, California as defendants in the lawsuit.

Trevor Kosmo, an attorney at Centro Legal de la Raza, stated: “We are proud to represent the Ahn family in their pursuit of accountability. No family should have to experience the agony of losing a loved one behind bars. Mr. Ahn was an elderly man who suffered from serious medical conditions, and was separated from his family for years; instead of being released to the community, or receiving the proper care and treatment he deserved, he died alone in a solitary confinement cell.”

. . . “We know that solitary confinement is a form of torture.” said Lisa Knox, Legal Director at the California Collaborative for Immigrant Justice. “Mr. Ahn was tortured to death by GEO Group and this lawsuit is a step towards accountability for that torture.” . . . 

IE

 

 

 

Former Hazleton, PA Mayor Lou Barletta Loses GOP Primary for Pennsylvania Governor

 

 

The primaries drew much attention yesterday.  In Pennsylvania, Doug Mastriano, described as "a far-right state senator," is the projected winner of Pennsylvania’s Republican primary for governor.  He easily bested former Hazleton, Pennsylvania Mayor and Congressman Lou Berletta, who championed an anti-immigrant ordinance in Hazleton that at the time made national news.  The Hazleton law "made it illegal for unauthorized immigrants to rent housing and for landlords to rent to individuals they knew to be unauthorized. With the passage of its Illegal Immigration Relief Ordinance in July 2006, Hazleton catapulted itself onto the national political stage and became something of a cause celebre for proponents of state and local activism in immigration enforcement."  

The  courts invalidated the immigration enforcement ordinance and it never went into effect.  In the end, Hazleton was ordered to pay attorneys fees to plaintiffs of $1.4 million in attorneys fees.  The city also paid a hefty amount in fees to anti-immigrant activist Kris Kobach,, who unsuccessfully defended the constitutionality of the ordinance.

On his gubernatorial campaign website, Berletta proclaimed that

"As mayor of Hazleton, Barletta learned firsthand that immigration is not solely a federal issue – it matters who holds office in states as well. He was the first mayor in the country to pass a local ordinance standing up against illegal immigration and was promptly sued by the ACLU. As a member of Congress, he fought every day to protect our borders and strengthen our laws. As governor, Barletta will maintain his strong stance against illegal immigration, as a public safety issue, as job protection for Pennsylvania workers, and as a public health issue."

 

As the campaign concluded, Lou Barletta was pushed by the Republican establishment.  "That might sound odd. The former congressman was among Donald Trump’s earliest supporters in 2016 — at a time when most national Republicans either didn’t take him seriously or desperately sought to elect anyone else."  Still, Barletta was seen by some Pennsylvania Republican Party leaders as their last best chance to stop front-runner Doug Mastriano.  The fact that Barletta, an ardent anti-immigrant leader, is viewed as a less extreme "moderate" should be sobering.

KJ

Immigration Article of the Day: Who Is an American Soldier? Military Service and Membership in the Polity by Jin Niu

Who Is an American Soldier? Military Service and Membership in the Polity by Jin Niu, New York University Law Review, Vol. 95, No. 5, 2020

Abstract

The military is one of the most powerful institutions to define membership in the American polity. Throughout this country’s history, noncitizens, immigrants, and outsiders have been called to serve in exchange for the privileges of citizenship and recognition. At its height, the idea that service constitutes citizenship—which this Note calls “constitutive service”—successfully transformed a group of “perpetual foreigners” to “citizens.” Until 1952, individuals of Asian descent were categorically excluded from the polity, a barrier that ultimately crumbled after Asian Americans rendered a long history of military service, beginning with the War of 1812, to the Civil War, then to the two World Wars. Yet, precisely because military service is so transformative, the United States over the past decade has imposed both formal and informal restrictions barring certain groups of people from serving, among them individuals who are gay, transgender, undocumented—and to a lesser extent—women and Muslim Americans. These restrictions are reminders that the United States continue to debate who is fit to be an “American,” and therefore, an “American soldier.”

KJ

New Lawsuit in Canada Challenges the Use of Maximum-Security Jails for Immigrant Detention

Today's Toronto Star reports on a new lawsuit in Canada challenging the use of maximum-security jails for the purpose of immigration detention.

Although immigrants are held in these jails, they are not charged with a crime and civil detention is not supposed to be punitive. As Toronto Star reporter Brendan Kennedy quotes the lawyer for the detainees as saying: "No one who is not convicted of a crime or is not accused of a crime should be placed there."

Those interested in learning more about the jailing of immigrant detainees in Canada should definitely read this article by Stephanie J. Silverman and Petra Molnar: Everyday Injustices, published in the Refugee Survey Quarterly (March 2016), pp. 109-127.

IE

The Violent Defense of Whiteness

The tragedy of the hate crimes this weekend in Buffalo, New York remains in the national spotlight.  The killer apparently was an adherent of the "Great Replacement Theory" positing that elites are brining immigrants to the country to replace whites.  The theory until this weekend was a staple of Fox News.  

Kathleen Belew in the New York Times insightfully observes that

"It’s not immediately obvious how the “great replacement” theory, often framed as anti-immigrant doctrine meant to preserve predominantly white societies, is connected to the shooting of Black customers and employees at a grocery store in Buffalo last weekend. . . . But the explanation for both the choice of targets and the brutality of an attack that killed 10 people can be found in the history of the theory. . . . 

The great replacement is the latest incarnation of an old idea: The belief that elites are attempting to destroy the white race by overwhelming it with nonwhite groups and thinning them out with interbreeding until white people no longer exist. This idea is not, at its core, about any single threat, be it immigrants or people of color, but rather about the white race that it purports to protect. It's important to be cautious and not too credulous when reading the writings of assailants in attacks motived by race, but we should note an important pattern: their obsession with protecting white birthrates.

For decades, white power activists have worried about their status as a majority. They see a looming demographic crisis, and talk about when their community, town or the United States will no longer be majority white. Even when demographic change slows, this fear has not abated."

Belew is the author of Bring the War Home: The White Power Movement and Paramilitary America (2018).

Breaking News: Supreme Court Limits Judicial Review of Removal Decisions

Official Supreme Court Picture

The Supreme Court today limited judicial review of removal decisions in Patel v. Garland.  Justice Amy Coney Barrett wrote the opinion for the majority.  SCOTUSBlog collects materials on the case here.

As described in the syllabus to the slip opinion, the majority held that "Federal courts lack jurisdiction to review facts found as part of discretionary-relief proceedings under §1255 and the other provisions enumerated in §1252(a)(2)(B)(i)."

Justice Barrett delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Alito, and Kavanaugh joined.  Justice Gorsuch filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined.

Justice Barrett began the majority opinion as follows:"

"Congress has comprehensively detailed the rules by which noncitizens may enter and live in the United States. When noncitizens violate those rules, Congress has provided procedures for their removal. At the same time, there is room for mercy: Congress has given the Attorney General power to grant relief from removal in certain circumstances. Federal courts have a very limited role to play in this process. With an exception for legal and constitutional questions, Congress has barred judicial review of the Attorney General’s decisions denying discretionary relief from removal. We must decide how far this bar extends -- specifically, whether it precludes judicial review of factual findings that underlie a denial of relief. It does. joined.

Justice Gorsuch began the dissent as follows:

"It is no secret that when processing applications, licenses, and permits the government sometimes makes mistakes. Often, they are small ones—a misspelled name, a misplaced application. But sometimes a bureaucratic mistake can have life-changing consequences. Our case is such a case. An immigrant to this country applied for legal residency. The government rejected his application. Allegedly, the government did so based on a glaring factual error. In circumstances like that, our law has long permitted individuals to petition a court to consider the question and correct any mistake. Not anymore. Today, the Court holds that a federal bureaucracy can make an obvious factual error, one that will result in an individual’s removal from this country, and nothing can be done about it. No court may even hear the case. It is a bold claim promising dire consequences for countless lawful immigrants. And it is such an unlikely assertion of raw administrative power that not even the agency that allegedly erred, nor any other arm of the Executive Branch, endorses it. Today’s majority acts on its own to shield the government from the embarrassment of having to correct even its most obvious errors. Respectfully, I dissent."

Recaps of the opinion will be posted when available.

UPDATE (May 17): Aline Barros on Voice of America reports on the Patel v. Garland decision.

KJ