ImmigrationProf Blog

Immigration Article of the Day: The Power to Exclude by Josh Blackman

The Power to Exclude by Josh Blackman South Texas College of Law

Abstract

Under modern doctrine, the federal government has an inherent authority to exclude aliens from entering the United States. In contrast, states lack any power to exclude aliens from entering their own borders. Though well settled, this dichotomy stands in tension with our Constitution’s structural design. It is a bedrock principle that the federal government only has those powers that are enumerated in the Constitution. In many respects, modern doctrine inverts our constitutional order. The states, which have the strongest claim to a general power to exclude cannot exercise that power. Congress, which has the weakest claim to an inherent power to exclude, can exercise that power with few discernible limits.

Does the federal government have the power to exclude aliens? Yes, though the answer is not as straightforward as many of us have assumed. There are four plausible candidates in Article I to support an exclusionary power: the Naturalization, Commerce, Law of Nations, and Migration of Importation Clauses. However, none of these clauses, standing by itself, supports an enumerated power to prevent foreign aliens from entering the United States. Rather, the strongest argument in support of an exclusionary power is an implied authority. It is both “necessary” and “proper” for Congress to restrict entry to aliens in order to more effectively naturalize citizens and, perhaps, regulate commerce. This authority is incidental, and does not “flatten the principle of state sovereignty.” Therefore, the exclusionary power does not amount to a “great substantive and independent power” that improperly aggrandizes Congress’s reach over states, their officials, and individual Americans. This authority belongs solely to Congress, and is not an inherent executive power.

KJ

Death on the Border Chapter 101: Deadly crossing ends American dream for Guatemalan migrant

Deaths of migrants are a fact of life on the US/Mexico border.  Reuters report on one tragic case.  "Each year hundreds of migrants die trying to cross into the U.S. from Mexico. The Border Patrol tallied 294 deaths in 2017. But experts believe the actual figure is far higher. Some who die are never found."

A backpack left by a migrant in the Sonoran Desert.  Photo courtesy of Reuters

KJ

Immigration Article of the Day: Can the Rule of Law Apply at the Border?: A Commentary on Paul Gowder’s the Rule of Law in the Real World by Matthew J. Lister

Can the Rule of Law Apply at the Border?: A Commentary on Paul Gowder’s the Rule of Law in the Real World by Matthew J. Lister Deakin, University School of Law, Saint Louis University Law Journal, Vol. 62, No. 2 2018, 323-32

Abstract The border is an area where the rule of law has often found difficulty taking root, existing as law-free zones characterized by largely unbounded legal and administrative discretion. In his important new book, The Rule of Law in the Real World, Paul Gowder deftly combines historical examples, formal models, legal analysis, and philosophical theory to provide a novel and compelling account of the rule of law. In this paper I consider whether the account Gowder offers can provide the tools needed to bring the border under the rule of law. I argue that on Gowder’s account, there are two ways in which we might try to extend the rule of law to the border. The first is to look at concrete connections that current citizens or members of the political community have with non-citizens. Just as the interests of current citizens give them strong reasons to coordinate to establish the rule of law in their own community, so may the interests of current members in connections with nonmembers give them reason to work to extend the rule of law to the border. These interests can include family ties, other forms of personal relationships, offers of employment, intellectual connections, and others. Some of these connections already serve to give greater legal protections, including protections from arbitrary decision-making, to some non-citizens, and the general trend, I argue, can and should be further strengthened The second method for extending the rule of law to the border involves appealing to certain universal norms so as to build a sense of community that stretches beyond borders. While these norms are not as robust or well established as domestic law, and therefore are unlikely to extend all of the protections of the rule of law to all people at the border, they can, I argues, be a basis for working against the worst arbitrary actions by border officials. I conclude by considering the vexed dispute about providing “amnesty” for unauthorized immigrants in the United States and other countries. I argues that Gowder’s account of the amnesty provided to supporters of the oligarchic coups in ancient Athens provides a model for thinking about when and how amnesties for unauthorized migrants can be done without offending the rule of law, thereby making them more palatable to current citizens.

KJ

From the Bookshelves: Safe Haven in America: Battles to Open the Golden Door by Michael Wildes

Safe Haven in America: Battles to Open the Golden Door by Michael Wildes

America’s “broken” immigration system has become a cliché of national politics – made only worse by decades of political gridlock. Written with the benefit of almost a quarter-century in the field, Safe Haven in America: Battles to Open the Golden Door attempts to present the human face of this problem, covering cases that are as fascinating as they are controversial.

With the publication of Safe Haven in America: Battles to Open the Golden Door, Michael Wildes doesn’t travel over well-worn legal and political terrain. He presents case histories that read more like espionage thrillers, populated with KGB agents, nuclear whistle-blowers, and even accused terrorists fighting for their lives as well as legal standing in the U.S. But he also tells human stories – tales of children kidnapped to foreign countries in bitter divorce battles; families all but destroyed by the attack on the World Trade Center; a hero’s shabby treatment after standing up to terror; and a young DACA recipient becoming the target of a hate attack.

From managing media expectations with bombshell political revelations to the day-to-day demands of running a practice with office in four states, Wildes presents a look behind the scenes of one of America’s perennial political flash-points, along with startling disclosures from some of his most riveting cases.

KJ

Meet The Dreamers Caught in the DACA Fight | Waking Dream Ep. 1

 

Waking Dream, is done and Episode One just launched on a PBS YouTube channel! 

 The link to Ep1 is HERE and the rest of the series will roll out every Tuesday for the next 5 weeks.

Waking Dream shows us the powerful journeys of undocumented young DREAMers with stories of resilience and hope in the face of legal limbo. Meet: Dilan, a Bay Area teacher with an uncertain future who preps underprivileged kids for theirs; Rossy in south Texas where, without DACA, checkpoints would keep her from completing her PhD; and twins John and James, the sons of Filipino immigrants who dream of serving in the US military and want nothing more than "to give back, to protect the people that welcomed us."

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Indie Lens Storycast is proudly produced by ITVS for PBS Digital Studios.

KJ

 

New Country, New Traditions - Immigrants & Thanksgiving

Happy Turkey Day! by Ginny

We are just one week away from Thanksgiving. Across the country, those who cook are thinking about the best way to prep their birds and sides. Those who don't are buying wine or other hostess gifts.

The NYT has a fresh perspective on the holiday:  refugees resettled in the United States who are experiencing Thanksgiving for the first time. It's fascinating to hear how perplexing the holiday has been for one refugee from Syria, where feasts are generally for religious events and not national celebrations.

I also learned that refugees are first welcomed to the United States by their sponsors with a "culturally appropriate hot meal." Fascinating!

The article reminded me of a children's book I reviewed a while back - The Thanksgiving Door by Debby Atwell. Another tale of Thanksgiving, food, and migration.

-KitJ

Census Citizenship Question Triggers Legal and Political Fallout

Read this Migration Information Source piece by Muzaffar Chishti and Jessica Bolter entitled "Census Citizenship Question Triggers Legal and Political Fallout."

Legal and political controversy surrounds the Trump administration's decision to include a question on citizenship status in the 2020 decennial census, the first such inclusion since the 1950 census. This article examines the administration's conflicting statements about the genesis of the plan, concerns that the decision could affect the accuracy of the census, and legal challenges pending in a number of states.

KJ

Rock Legend Billy Idol Now a U.S. Citizen

 

It’s a nice day for a naturalization ceremony. Congratulations Billy Idol on becoming a #newUScitizen today in Los Angeles, CA. pic.twitter.com/4s7KXHqoKC

— USCIS (@USCIS) November 15, 2018

 

Yesterday, rock legend Billy Idol, who was born in England, became a U.S. citizen yesterday at a naturalization ceremony in Los Angeles.

Coincidentally, UC Davis law graduate Desiree Cristina Velasco Zavala sang the national anthem at the ceremony.  Here is her post on Facebook:

 

Desiree Cristina Velasco Zavala

13 hrs ·

 

Today I had the awesome opportunity to sing the national anthem for an event attended by none other than BILLY IDOL, singer of my all-time favorite song in the world-Dancing with Myself! What a huge honor to sing today and have him be in the 1st row-though it was a bit nerve wrecking! I was lucky enough to get some hugs and photos, too. And the judge even asked him how he liked my rendition of the anthem and he said it was great and gave me two thumbs up. Honestly, the BEST work day EVER!!!!

 

 

 

KJ 

Will "The Apprentice" Come Back to Haunt President Trump?

NBC News reports that lawyers suing President Donald Trump over his decision to end Temporary Protected Status (TPS) for Salvadorans, Haitians, and Hondurans are seeking unaired footage from the reality television show "The Apprentice" to try to bolster their case alleging the move was racially motivated.

Lawyers Committee for Civil Rights has issued subpoenas to MGM Holdings Inc. and Trump Productions LLC demanding any footage shot during the production of the show in which Trump "uses racial and/or ethnic slurs" or "makes remarks concerning race, nationality and/or ethnic background."

Former White House staffer and fellow reality-TV star Omarosa Manigault Newman claimed in a book released in August, "Unhinged," that a tape exists of the president using the N-word on the reality show's set.

The case filed in federal court centers on the Trump administration's decision to end TPS for thousands of noncitizens from Haiti, El Salvador and Honduras.  The lawsuit alleges that President Trump's move to rescind the program was rooted in racial animus, citing comments that he made on the campaign trial and in office.

KJ

Refugee comics? Personal stories of forced migration illustrated in a powerful new way

Emma Parker on The Conversation introduces the reader to a flurry of comics have begun to tell the individual stories of refugees and migrants. Responding to the media coverage of border crossings and refugees during 2015 and 2016, they explore personal journeys, experiences of detention and attempts to make new lives in strange lands.

Parker writes:

"From the New York Times’ Pulitzer-winning Welcome to the New World by Jake Halpern and Michael Sloan, to Threads From the Refugee Crisis by Kate Evans, a growing number of artists and journalists are using graphic stories to share real-life experiences of migration. Reflecting this growing interest in graphic reportage, the House of Illustration in London opened a new exhibition in November, Journeys Drawn: Illustrations from the Refugee Crisis, showcasing 40 original works foregrounding the firsthand experiences of refugees and displaced peoples."

KJ

Immigration Professor Lenni Benson Honored for Helping Migrants

 

Lenni Benson, Professor of Law at New York Law School and founder of Safe Passage Project, has received international recognition for her tireless work advocating for unaccompanied immigrant children.  

Every year, Child 10 gathers and awards ten exceptionally bold individuals from around the world for their work in assisting the most vulnerable children in our communities. 

Prize winners will be flown to Sweden in December to participate in a global summit, and Safe Passage will receive a cash prize of $10,000.

Congratulations, Professor Benson!

KJ

 

Immigration Article of the Day: Universities as 'Sanctuaries' by MARYAM AHRANJANI

Universities as 'Sanctuaries' by Maryam Ahranjani  Journal of College and University Law, Vol. 44, No. 1, 2018  

Abstract

When Donald Trump, a businessman and reality television personality with anti-immigrant views, was elected President of the United States in November 2016, thousands of students, faculty and staff at many colleges and universities around the country implored their institutions to affirmatively declare themselves sanctuaries for undocumented students. Enjoying support both from the estimated 200,000 undocumented university students and other stakeholders, the movement gained quite a bit of momentum, but many contentious battles also have occurred. According to the author’s empirical analysis, only twenty of the more than 5,000 institutions of higher education in the United States have adopted the sanctuary campus designation.

This piece explores the legal and policy implications of the “sanctuary campus” designation and the balance between the goal of the designation and the effects. In concluding that the sanctuary movement should focus on promoting policies and programs, this article argues: 1) there is a lack of clarity about the term “sanctuary,” 2) to the extent that there is agreement about the term, universities already are de facto and de jure sanctuaries and efforts to affirmatively adopt the designation may undermine the presumption, and 3) there are some persuasive political and other reasons to focus on targeted assistance rather than a name that may not mean much.

KJ

Immigration Article of the Day: When Shadow Removals Collide: Searching for Solutions to the Legal Black Holes Created by Expedited Removal and Reinstatement by Jennifer Lee Koh

When Shadow Removals Collide: Searching for Solutions to the Legal Black Holes Created by Expedited Removal and Reinstatement by Jennifer Lee Koh,  Washington University Law Review

Abstract

Immigration scholarship has begun to explore the prominence of shadow removals—deportations that are executed by front-line agency officials acting outside the presence of an immigration judge—which now constitute the majority of all reported removals. This Article explores two of the most common forms of shadow removals, expedited removal and reinstatement of removal, and the collision of the two. Expedited removal has typically been perceived as a border enforcement tool, used against persons with limited ties to the United States. Reinstatement of removal exists for persons who enter the U.S. without authorization following a prior removal. The rising use of each streamlined procedure is, on its own, troubling from a fairness, accuracy, and rule of law perspective. But like chemical compounds mixing and creating new substances, expedited removal and reinstatement interact to produce unique situations in which the law renders people forever subject to immediate deportation based primarily on the existence of a brief encounter at some point in the past with a border official. These situations are akin to legal black holes in immigration law, and have not been examined in any of the scholarly literature to date.

This Article is the first to consider the interplay of expedited removal and reinstatement. It traces the operation of the two removal processes, both independently and in combination with each other. It emphasizes the harsh statutory bars on judicial and habeas review, and the resulting inability of the federal judiciary to ameliorate the harshness of removal in this context. The Article then suggests that the use of reinstatement based on prior expedited removal orders fails the basic administrative law requirement that federal agencies demonstrate reasoned decision-making and avoid arbitrary or capricious action. Relying on the Supreme Court’s decision in Judulang v. Holder, which applied arbitrary and capricious review in the deportation context, the Article encourages courts to more closely scrutinize the use of reinstatement based on expedited removal.

KJ

Fewer foreign students coming to United States for second year in row

No big surp[rise here.  Reuters reports that fewer foreign students are coming to United States for second year in row.  According to the report, "[n]ew enrollments for the 2017-18 school year slumped 6.6 percent compared with the previous year, according to an annual survey released by the Institute of International Education. That follows a 3.3 percent decline in new international students tallied in the 2016-17 academic year.

Several factors are driving the decrease. Visa and immigration policy changes by the Trump administration have deterred some international students from enrolling, college administrators and immigration analysts said."

KJ

New Study Details Harsh Consequences of Trump’s Deportation Policies

Photo courtesy of Kino Border Initiative

The Kino Border Initiative (KBI), the Center for Migration Studies of New York (CMS), and the Office of Justice and Ecology (OJE) of the Jesuit Conference of Canada and the United States today released, “Communities in Crisis: Interior Removals and Their Human Consequences,” a new report examining the characteristics of deportees and the effects of deportation.

This report details findings from the CRISIS Study (Catholic Removal Impact Survey in Society), which interviewed deportees at KBI’s migrant shelter in Nogales, Sonora, and those affected by deportation in Catholic parishes in Florida, Michigan, and Minnesota. The interviews explored: (1) the impact of removals on deportees, their families, and other community members; (2) the deportation process; and (3) the relationship between deportees and their families. The report also includes policy recommendations to mitigate the ill effects of the administration’s policies and promote the integrity of families and communities, including: using detention as a “last resort;” reducing funding to Immigration and Customs Enforcement (ICE); and limiting collaboration between police and ICE and Customs and Border Protection (CBP).

Researchers found that deportees had built their lives, made their homes, and established long and deep ties in the United States. On average, survey respondents had lived in the country for 19.9 years, with more than half having first entered as minors. Ninety-six percent had been employed in the United States, and, on average, had worked nearly 10 years in the same job. In addition, 42 percent of survey respondents had US citizen spouses or partners, and 78 percent had US citizen children. Given these circumstances, it comes as little surprise that 73.5 percent of deportees said they planned to return to the United States.

“The report offers an intimate, often raw look at the human consequences of indiscriminate enforcement and the administration’s deportation policies,” said Donald Kerwin, CMS’s executive director. “And it offers recommendations on how to protect the integrity of immigrants, US families, and communities.”

To download the report, visit here.

KJ

Trump preparing to remove Kirstjen Nielsen as Homeland Security secretary?

The day after the 2016 midterm elections, Attorney General Jeff Sessions was out.  Is Kirstjen Nielsen, Secretary of the Department of Homeland Security, next?

Nick Miroff , Josh Dawsey and Philip Rucker for the Washington Post report that "President Trump has told advisers he has decided to remove Homeland Security Secretary Kirstjen Nielsen, and her departure from the administration is likely to occur in the coming weeks, if not sooner, according to five current and former White House officials."

Immigration hardliners who lost at the polls last week, including Kansas gubernatorial candidate Kris Kobach, might end up vying for the two cabinet positions, both of which play important immigration roles.

KJ

At the Movies: Eldorado, a documentary

Eldorado is a 2018 Swiss documentary film directed by Markus Imhoof. It was selected as the Swiss entry for the Best Foreign Language Film at the 91st Academy Awards.

Drawing inspiration from his personal encounter with the Italian refugee child Giovanna during World War II, Eldorado tells how refugees and migrants are treated today: on the Mediterranean Sea, in Lebanon, in Italy, in Germany and in Switzerland.

KJ

Law Profs Weigh in in Right to Counsel for Minors Appeal

 

Last week, law professors  Judith Resnik and Brian Soucek, with the assistance of the law firm of Munger Tolles & Olson LLP, filed an amicus brief in C.J.L.G. v. Sessions (now Whitaker), in which the Ninth Circuit has gone en banc to decide whether migrant children in removal hearings have a right to government-funded counsel. The brief focuses on the Supreme Court’s forty years of procedural due process case law applying the Mathews v. Eldridge balancing test. Oral argument is expected in December. Our brief is here. 

The conclusion of the brief reads as follows:

"Decades of case law makes clear how the Mathews balancing test should be used to analyze procedural due process claims, including those raising the right to counsel in civil contexts. Using the Supreme Court’s test and considering the information in the record about the needs of children, the factual density of immigration claims, and the complexity of the legal questions involved, the conclusion which emerges is that the Constitution requires the appointment of counsel for indigent children in deportation proceedings"

KJ

President Trump should withdraw his asylum proclamation

© Getty Images

Nolan Rappport on The Hill calls on President Trump to withdraw the asylum proclamation.

KJ

From the Bookshelves: The Golden State by Lydia Kiesling

 

The Golden State by Lydia Kiesling (Sept. 2018)

In Lydia Kiesling’s razor-sharp debut novel, The Golden State, we accompany Daphne, a young mother on the edge of a breakdown, as she flees her sensible but strained life in San Francisco for the high desert of Altavista with her toddler, Honey. Bucking under the weight of being a single parent―her Turkish husband is unable to return to the United States because of a “processing error”―Daphne takes refuge in a mobile home left to her by her grandparents in hopes that the quiet will bring clarity.

But clarity proves elusive. Over the next ten days Daphne is anxious, she behaves a little erratically, she drinks too much. She wanders the town looking for anyone and anything to punctuate the long hours alone with the baby. Among others, she meets Cindy, a neighbor who is active in a secessionist movement, and befriends the elderly Alice, who has traveled to Altavista as she approaches the end of her life. When her relationships with these women culminate in a dangerous standoff, Daphne must reconcile her inner narrative with the reality of a deeply divided world.

Keenly observed, bristling with humor, and set against the beauty of a little-known part of California, The Golden State is about class and cultural breakdowns, and desperate attempts to bridge old and new worlds. But more than anything, it is about motherhood: its voracious worry, frequent tedium, and enthralling, wondrous love.

 

For a review of The Golden State, click here.

 

KJ