ImmigrationProf Blog

Immigration Article of the Day: Health Inequity and Tent Court Injustice by Craig Mousin

Health Inequity and Tent Court Injustice by Craig Mousin, AMA J Ethics. 2021;23(2):E132-139

Abstract

United States law promises refugees they will not be deported until they receive fair, impartial review and determination of their asylum eligibility. In addition to addressing the difficult substantive issues under the Refugee Act of 1980, refugees also carry with them the medical consequences of persecution or fear of persecution, traveling from home for exile, and now, since the implementation of the Migrant Protection Protocols and other United States policies, long periods of waiting for adjudication under difficult circumstances. Some refugees’ illness experiences, moreover, preclude them from testifying and accurately representing their own interests during asylum adjudication proceedings. This article explains how health inequity compromises the capacity of refugees to successfully demonstrate their asylum eligibility, recounts federal policy changes that exacerbate their health and legal vulnerabilities, and suggests how the United States fails to meet international obligations to refugee-patients.

KJ

Former President George W. Bush Advocates for Immigration Reform

Official White House Photo

Former President George W. Bush lamented the polarization of immigration reform in a Washington Post op-ed published yesterday.

The op-ed is in line with Bush's longstanding calls for immigration reform but nonetheless puts him at odds with many of the GOP's likely 2024 presidential contenders.

President Bush's op-ed was published ahead of Bush’s interview with CBS’ Norah O’Donnell is set to air tomorrow.  In the interview, Bush reportedly said that he is “ready to re-enter the debate on immigration.”  Bush called for a path to citizenship for “Dreamers,” increased border security, working with other countries to stem the root causes of migration as well a "modernized" asylum system and higher levels of legal immigration, "focused on employment and skills."

KJ

Biden Administration Wavers on Refugee Admissions: Will It Cave on Immigration or Push for Change?

Official White House Photo

Despite previously announcing that his administration would increase refugee admissions from the 15,000 designated by President Trump, President Biden announced yesterday that he would stick to 15000 for fiscal year 2021.  As the Los Angeles Times described matters:  "After hours of outcry over the emergency determination, the White House appeared to backtrack, saying in a statement later Friday that Biden instead would announce a new cap next month."  Here is the Statement by Press Secretary Jen Psaki on the Emergency Presidential Determination on Refugee Admissions for Fiscal Year 2021:

"The President’s directive today has been the subject of some confusion.  Last week, he sent to Congress his budget for the fiscal year starting in October 2021, which honors his commitment.  For the past few weeks, he has been consulting with his advisors to determine what number of refugees could realistically be admitted to the United States between now and October 1.  Given the decimated refugee admissions program we inherited, and burdens on the Office of Refugee Resettlement, his initial goal of 62,500 seems unlikely. 

While finalizing that determination, the President was urged to take immediate action to reverse the Trump policy that banned refugees from many key regions, to enable flights from those regions to begin within days; today’s order did that.  With that done, we expect the President to set a final, increased refugee cap for the remainder of this fiscal year by May 15."

This is a troubling development.  Will the Biden administration adhere to its campaign promises?  Or will it succumb to pressures to tighten the border in response to what Republicans call a "crisis"? 

KJ

KJ

Immigration Article of the Day: The Political Misrepresentation of Immigrants in the Census by Ming Hsu Chen

The Political Misrepresentation of Immigrants in the Census by Ming Hsu Chen, New York University Law Review, Vol. 96, 2021

Abstract

Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This article describes several barriers facing immigrants that impede their political belonging. It critiques these barriers not on the basis of immigrants’ rights, but based on their rights as current and future members of the political community. This is the second of two essays. The first essay focuses on voting restrictions impacting Asian American and Latino voters. The second essay focuses on challenges to including immigrants, Asian Americans, and Latinos in the 2020 census. The essays critique the exclusion of immigrants from the political community because it compromises representational equality.

KJ

Supreme Court to Hear Arguments in TPS/Adjustment of Status Case

Official Supreme Court Photograph

Next Monday, the Supreme Court will hear oral argument in Sanchez v. Mayorkas.  The case raises the question whether recipients of  temporary protected status are eligible to adjust their status to become lawful-permanent-residents. The U.S. Court of Appeals for the Third Circuit held that petitioners were not.

A group of immigration law professors submitted an amici brief in support of the Petitioners.   The Constitutional Accountability Center also filed a brief and has a summary of the case here.

John Fritze for USA Today offers some background on the Petitioners:

"Jose Sanchez and Sonia Gonzalez have lived in the United States legally for two decades under a program that lets immigrants from nations enduring natural disasters and armed conflict temporarily avoid returning to their native countries.

But when the New Jersey couple applied for green cards – which would let them remain permanently – they were denied because they initially entered the country illegally." (bold added).

UPDATE (1:45 PST):  Maryellen Fullerton provides a preview of the oral argument for SCOTUSBlog.

KJ

AILA Calls for Article I Immigration Courts, Immigration Reform

The American Immigration Lawyers Association (AILA) yesterday released "America as a Welcoming Nation: A Roadmap."  It asserts that

"[t]he current system is sorely outdated and badly in need of reform. Congress must act swiftly, using not only its legislative power but also its oversight and budget authorities to secure lasting reform. . . . 
AILA calls upon Congress to put aside partisan divisions and advance solutions that best serve
American families and businesses and preserve our commitment to protecting those fleeing
persecution."

Asher Stockler for Law 460 (registration required) offers details.  The report calls on Congress to create an Article I immigration court system similar to the bankruptcy courts. It also said immigrants should have a statutory right to counsel in removal proceedings. 

KJ

Immigration Article of the Day: Unsettling the Border by Sherally Munshi

Unsettling the Border by Sherally Munshi, UCLA Law Review, Vol. 67, No. 6, 2020

Abstract

When scholars and lawmakers ask who should be allowed to cross borders, under what circumstances, on what ground, they often leave unexamined the historical formation of the border itself. National borders are taken for granted as the backdrop against which normative debates unfold. This Article seeks to intervene in contemporary debates about border crossing by bringing the border itself into the frame of normative consideration. It does so by exploring the colonial dimensions of the national border and calling attention to the ways in which national borders circumscribe and constrain the political imaginary. Focusing on the United States in particular, this Article seeks to defamiliarize the southern border by resituating it within a widened context of settler colonialism and hemispheric domination. Rather than offer a normative case for building a wall or opening borders, this Article asserts that meaningful engagement with the border question requires that we unsettle the border by critically examining the colonial processes and epistemic formations that naturalize and legitimate it.

KJ

From the Bookshelves: The Ungrateful Refugee by Dina Nayeri

The Ungrateful Refugee by Dina Nayeri  (2020)

What is it like to be a refugee? It is a question many of us do not give much thought to, and yet there are more than 25 million refugees in the world. To be a refugee is to grapple with your place in society, attempting to reconcile the life you have known with a new, unfamiliar home. All this while bearing the burden of gratitude in your host nation: the expectation that you should be forever thankful for the space you have been allowed.

Aged eight, Dina Nayeri fled Iran along with her mother and brother, and lived in the crumbling shell of an Italian hotel-turned–refugee camp. Eventually she was granted asylum in America. She settled in Oklahoma, then made her way to Princeton. In this book, Nayeri weaves together her own vivid story with the stories of other refugees and asylum seekers in recent years, bringing us inside their daily lives and taking us through the different stages of their journeys, from escape to asylum to resettlement. In these pages, a couple falls in love over the phone, and women gather to prepare the noodles that remind them of home. A closeted queer man tries to make his case truthfully as he seeks asylum, and a translator attempts to help new arrivals present their stories to officials.

Nothing here is flattened; nothing is simplistic. Nayeri offers a new understanding of refugee life, confronting dangers from the metaphor of the swarm to the notion of “good” immigrants. She calls attention to the harmful way in which Western governments privilege certain dangers over others. With surprising and provocative questions, The Ungrateful Refugee recalibrates the conversation around the refugee experience. Here are the real human stories of what it is like to be forced to flee your home, and to journey across borders in the hope of starting afresh.

KJ

NAIJ challenge to gag orders

National Association of Immigrations Judges v. McHenry

A lawsuit challenging a government policy silencing immigration judges

On July 1, 2020, the Knight Institute filed a lawsuit challenging a policy of the Executive Office for Immigration Review that imposes an unconstitutional prior restraint on the speech of immigration judges. The policy categorically prohibits immigration judges from speaking or writing publicly in their personal capacities about immigration or about the agency that employs them. On all other topics, the policy requires immigration judges to obtain EOIR’s prior approval.

The Knight Institute represents the National Association of Immigration Judges (NAIJ), a non-partisan, non-profit voluntary association that represents all non-managerial immigration judges in the United States. For years, members of NAIJ regularly spoke at conferences, guest lectured at universities and law schools, participated in immigration-law trainings, and spoke to local community groups, all in their personal capacities. But in 2017, EOIR issued a speaking-engagement policy that sharply curtailed the ability of immigration judges to speak publicly in their personal capacities. A revised version of the policy, issued in 2020, is even more restrictive.

The lawsuit argues that the policy violates the First Amendment right of immigration judges to speak publicly on matters of public concern, and the First Amendment right of the public to hear them. It also argues that the policy is void for vagueness under the First and Fifth Amendments.

Status: Oral argument scheduled for May 4, 2021 at 2pm.

Case information: Nat'l Ass'n of Immigration Judges v. McHenry, No. 1:20-cv-00731 (E.D. Va.), No. 20-1868 (4th Cir.).

Texas sues Biden administration to reinstate Trump-era 'remain in Mexico' immigration policy

Official Picture of Texas Attorney General Ken Paxton

Shawn Mulcahy for the Texas Tribubne offers details on the lawsuit brought earlier this week by Texas Attorney General Ken Paxton and Missouri Attorney General Eric Schmitt.  The states of Texas and Missouri sued the Biden administration in an attempt to restore President Trump's "remain in Mexico"  policy, which requires migrants seeking asylum in the United States to wait in Mexico during processing of their claims. 

The states  allege that the Biden administration’s decision to suspend the remain in Mexico policy was  “arbitrary and capricious" ands thus unlawful.  The complaint seeks to reinstate the policy.

Most of the claims in the complaint are standard Administrative Procedure Act (APA) claims. For example, the second claim for relief in the complaint is for "Arbitrary and Capricious Agency Action—Failure to Consider State Reliance Interests."  Paragraph 91 reads as follows:

"DHS particularly failed to consider whether “there was ‘legitimate reliance’ on the” prior administration’s method of using the MPP as an indispensable tool in bilateral efforts to address the migration crisis by diminishing incentives for illegal immigration, weakening cartels and human smugglers, and enabling DHS to better focus its resources on legitimate asylum claims. Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1913 (2020) (quoting Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 742 (1996)). That was arbitrary and capricious; where, as here, “an agency changes course ... it must ‘be cognizant that longstanding policies may have engendered serious reliance interest that must be taken into account.'" . . .  . [citations omitted]".

Dep’t of Homeland Sec. v. Regents of the Univ. of Cal, of course, is the 5-4 Supreme Court decision finding that the Trump administration's rescission of the Deferred Action for Childhood Arrivals (DACA) policy for being arbitrary and capricious.  I do not see the Texas and Missouri suit as going far.  Most fundamentally, the state reliance interests alleged in teh second claim for relief in federal immigration enforcement differ significantly from the individual reliance interests at issue in the DACA case.  The other claims also are unlikely to get traction.  The creative lawyering is more likely to make a political statement than have any legal impacts.

KJ

 

John Oliver to Biden on Refguees: "Pick up a f--ing pen, and do the right thing"

As WaPo and other news outlets have reported, President Biden stated in February that he would be dramatically raising the cap on refugee admissions from Trump's historic low of 15,000 all the way up to 125,000. "However, Biden has yet to do one thing that would make all of those changes official: sign what is known as a presidential determination." Without doing that, Biden's February statement means absolutely nothing. Trump's 15,000 cap remains in place. (Also, as WaPo reports, presidents normally sign that determination when they announce their refugee numbers; there's no explanation for why Biden's waited some 2 months without taking the required action.)

John Oliver, for one, isn't having it. In this 5-minute segment from Sunday night, the late-night host talked about the many folks who've been hurt by Biden's failure to sign a presidential determination, and just how easy it would be for Biden to sign: he doesn't need to jump the M&M hurdles of McConnell and Manchin. Oliver concludes his segment by urging the president to "pick up a f--ing pen, and do the right thing."

Damn skippy.

-KitJ

Biden names leading statistician who specializes in undocumented immigrantion as next Census Director

The last few years have demonstrated that the U.S. census' work impacts the distribution of political power and representation among racial minorities. In this context, President President Biden's selection of Robert Santos is significant: he is a leading statistician and the first person of color to serve in the post. 

A White House statement explains that Santos is the currently the vice-president of the nonpartisan think-tank the Urban Institute and President of the American Statistical Association. He co-authored a 2019 report warning that the 2020 census could result in the worst undercount of Black and Latinx people in the U.S. since 1990. His specialty areas include undocumented immigrants and other disadvantaged populations, and he has additionally worked on education, health, immigration and refugees, environmental issues, housing discrimination, travel behavior, and elections. Last year, Santos co-chaired the American Statistical Association's task force examining the quality of data collected for the national count and disruptions introduced by the coronavirus pandemic and political interference.

If confirmed, Santos would fill the vacancy left by former Director Steven Dillingham, who resigned after whistleblowers complained that Dillingham was pressuring the bureau to rush a data report on noncitizens that was the subject of President Trump's executive orders that were otherwise being examined in court. He could be re-appointed to a second term at the conclusion of the year, when Dillingham's original term expires.

His online biography notes that Santos has held executive-level leadership positions at the University of Michigan Survey Research Center and at NORC and was a partner of NuStats, LLC, in Austin, Texas. Santos served on panels of the National Academies and is a member of the National Center for Health Statistics Board of Scientific Counselors (2017–20). He also served on the editorial board of Public Opinion Quarterly and held elected board positions in the American Association for Public Opinion Research (AAPOR), the Washington Statistical Society, and the American Statistical Association (ASA). Santos has been elected to be the 116th president of ASA (with presidency in 2021). He has served as AAPOR president (2013–14) and ASA vice president (2015–17). Santos is an ASA Fellow and a 2006 ASA’s Founder’s Award recipient. He was born and raised in San Antonio, Texas and now lives in Austin, Texas, Santos would bring the perspective of a self-described "third generation native Mexican American" to the bureau as it continues to work through how to gather accurate information about the country's residents amid shifting demographics.

 

"When I fill out the census form, I check the Latino-Hispanic-Mexican American box," Santos said in a 2019 interview with an NPR member station in Texas. "And when it comes to race, I mark 'other' and insert 'mestizo' because that's how I feel about race and ethnicity."

MHC

Democrats send letter to Biden requesting immigration bill in second part of infrastructure package

Daniella Diaz for CNN reports that a group of Democratic lawmakers sent a letter to President Joe Biden on April  13 requesting that he prioritize legislation that would offer a pathway to citizenship to undocumented essential workers in the second part of his infrastructure package.  Here is the letter.

The letter says that the Democrats want the President to include the Citizenship for Essential Workers Act, as a priority in the American Families Plan, the name of the second part of Biden's two-part plan.  The Act would provide a pathway to citizenship for more than 5 million undocumented essential workers.  Under the legislation, an undocumented immigrant who works in child care, health care, agriculture, construction, emergency response, transportation, food, domestic work and other essential jobs would be able to apply for relief.

This effort was led by Senators Elizabeth Warren of Massachusetts and Alex Padilla of California and Representatives Joaquin Castro of Texas and Ted Lieu of California.  They were the principal signers of the letter.  "Additional co-signers" include:

 

Senator Richard Blumenthal
Representative Raul Ruiz
Representative Pramila Jayapal
Representative Ruben Gallego
Representative Juan Vargas
Representative Barbara Lee
Representative James P. McGovern
Representative Adriano Espaillat
Representative Tony Cárdenas
Senator Cory A. Booker
Representative Grace Napolitano
Representative Raúl Grijalva
Representative Nikema Williams
Representative Diana DeGette
Representative Ro Khanna
Representative Sara Jacobs
Representative Teresa Leger Fernández

Representative Darren Soto

 

KJ

April 16: Sharing Responsibility for Refugees

On Friday, the Miller Institute for Global Challenges and the Law and the California Law Review will be hosting a symposium titled Sharing Responsibility for Refugees. Here's the pitch:

The 2018 Global Compact on Refugees enshrines the principle of responsibility sharing, to help the handful of developing countries that host the vast majority of the world’s refugees. But the United States, and other wealthy countries, are also pioneering “responsibility dumping” arrangements, that instead exacerbate global inequities and threaten the rights of refugees. The panelists will explore the political economy of responsibility sharing, including the role of race in its legal development and implementation. We will also consider international templates of responsibility and how responsibility sharing arrangements might be used by states to evade responsibility under international refugee law, and imagine possible futures of responsibility sharing, including new ways of defining its key components and its scope, both across and within international borders.

There are a number of great speakers in the lineup. Check it out!

-KitJ

Carolyn Patty Blum: How Kamala Harris can find the solution for the migration crisis

Carolyn Patty Blum on The Hill is calling on Vice President Kamala Harris, tasked with working with Central American nations on immigration issues,  This is Patty's advice to the Vice President:

"Vice President Kamala Harris . . . . is tasked with determining the root causes and addressing them. To have any success, she must demonstrate to our partners in the Northern Triangle that the United States fully understands that their history is inextricably bound with our own history.

The first task on her agenda should be to create a truth commission with academic experts, faith leaders, human rights investigators, and members of the communities of people from Central America to sit as members. Its purpose is to come to terms with our role in the human rights tragedies of El Salvador and its neighbors in the Northern Triangle, and to create a full record of effects from our military action and foreign policy.

****

If Harris wants to address root causes of migration from Central America, she should start by looking in our backyard. Only when we look honestly at our history and the links between policy and refugee migration can we have a real dialogue with partners in the Northern Triangle. Her mission, and our moral integrity as a country, need this reckoning."

(bold added).

Patty litigated cases against four military commanders of El Salvador. She is a clinical professor emerita and senior research fellow at the Human Rights Center at University of California Berkeley Law School.

KJ

Raquel Aldana: "Citizenism" and the Shackles of Borders

Last week, in the Racial Justice Speaker Series, UC Davis School of Law Professor Raquel Aldana, a human rights, immigration, civil rights, and criminal law expert, spoke on "'Citizenism' and the Shackles of Borders."  The series has brought (virtually) civil rights scholars, public defenders, political leaders, and others to teh UC Davis law school community to discuss systemic racial injustice in U.S. social life.

Professor Aldana laid out the case for the claim that the enforcement of borders has always been punitive and racialized. Yet, immigration law’s exceptionalism and bounded notions of social membership has left the noncitizens largely unprotected from the laws. This presentation argues that racial justice projects must embrace the dismantling of citizenism -- a view in which “ U.S. citizenship” is foundational to the distribution of rights – as central to the transformation of the United States into a more just nation.

Professor Aldana offered a focus on race and immigration that was an important way to end the Racial Justice Speaker Series 2020-21. 

Here are the notes to the Power Point presentation:   Download Citizenism and the Shackles of Borders

Here is the Power Point:   Download Citizenism

KJ

Restoring Asylum: The Challenges of “Building Back Better” at the Border

Border photo  courtesy of Kit Johnson

Melissa Crow in the Fletcher Forum on World Affairs chimes in on the so-called "crisis" along the U.S./Mexico border:

"The Biden administration has been widely criticized for the so-called “surge” of migrants at the U.S.-Mexico border. But U.S. Customs and Border Protection (CBP) data show that the recent increase is consistent with predictable patterns of undocumented migration. More importantly, the criticism ignores the reality that asylum seekers have fled unspeakable danger in their home countries and disregards the U.S. government’s obligation – under both domestic and international law – to allow them to seek protection. 

The criticism also overlooks the fact that the Trump administration’s draconian policies have prevented asylum seekers from entering the U.S. over the past four years. To unwind these unlawful policies, the Biden administration must restore the opportunity to seek asylum at the southern border and overhaul the U.S. asylum system to provide meaningful access to protection."

Crow's conclusion:

"For decades, the U.S. government has faced challenges at the southern border, which are symptoms of more far-reaching problems with our immigration system and U.S. foreign policy towards Latin America. But the unrelenting assault on asylum over the past four years has left the Biden administration in an even more dire predicament. If this administration is serious about its efforts to “build back better” at the southern border, it must adopt a holistic solution that takes all these challenges into account, respects legal obligations, and puts human dignity first."

KJ

Biden immigration nominees: CBP and USCIS

CNN is reporting:

President Joe Biden plans to nominate Tucson, Arizona, police chief Chris Magnus to serve as commissioner of US Customs and Border Protection and Ur Jaddou to serve as director of US Citizenship and Immigration Services, according to four sources familiar with the selections.

Jaddou has been widely speculated as the incoming head of USCIS, which oversees the US legal immigration system. She was formerly chief counsel at the agency under President Barack Obama and led the Biden-Harris Department of Homeland Security transition review team.

 

 

Also Monday, the White House unveiled several additional Department of Homeland Security nominations, including Jon Meyer for general counsel, Rob Silvers for under secretary for Strategy, Policy, and Plans and John Tien as deputy secretary.

 

Note: This thread will be updated as nominations become official and hearings are scheduled.

 

MHC

Biden Budget Immigration Priorities Differ from Trump's

Official White House Photo

The Biden administration's budget proposal, which was announced late last week,  reflect a change in immigration priorities.  The White House unveiled a $1.5 trillion discretionary funding request for fiscal year 2022.

The proposal seeks:

1.  $52 billion for the Department of Homeland Security, roughly the same amount provided in 2021. About $1.2 billion would be reserved for "effective and modern" border security, including plans to revamp ports of entry, expand technology, curtail human and drug smuggling and improve the processing of migrants and asylum-seekers.

2.  $345 million for U.S. Citizenship and Immigration Services (USCIS) in funding to expedite the adjudication of applications for asylum and U.S. citizenship; interview refugees; and modernize agency operations. The administration said the request will also provide funding for programs designed to serve as alternatives to detaining migrant families while their requests for asylum or other forms of relief are reviewed. 

3.  $84 million to fund the investigation of workplace complaints, including those related to white supremacy (a subject of a previous blog post on ImmigrationProf ) among employees at Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP).

4.  $4.1 billion for the Office of Refugee Resettlement, a branch of the Department Health and Human Services, to  resettle up to 125,000 refugees in fiscal year 2022. The State Department, which also plays a major role in refugee resettlement, would receive funds for this effort as well.

"The discretionary request proposes the resources necessary to fulfill the President's commitment to rebuild the Nation's badly damaged refugee admissions program and support up to 125,000 admissions in 2022," the Biden administration wrote in its request to Congress.

The request submitted to Congress does not include any funds for wall or barrier construction along the U.S.-Mexico border.  The plan calls for unused border wall construction funds allocated in 2021 to be cancelled.

KJ

Immigration and family separation policies at the US border inspire comic book ‘Home’

Liz Ohanesian for the Los Angeles Daily News reports on a new comic book series that features Latiina/os and explores immigration policy and border enforcement.

 When news of the separation of families at the U.S.-Mexico border came to light in 2018, the disclosure sent Julio Anta reeling.  Anta, a longtime comic book reader who is of Cuban and Colombian heritage, thought about how little representation there is for Latinx people in comic books.   Here is an brief summary of “Home,” a five-part series for Image Comics that begins its run on April 14:

"When a young boy is torn away from his mother while seeking asylum at the U.S. border, something begins to change in him, and it isn’t just the trauma, anxiety, and guilt you’d expect. He doesn’t know it yet, but it’s the onset of superhuman abilities that will change his life forever.

JULIO ANTA and ANNA WIESZCZYK debut with a deeply grounded and heartfelt five-issue series that explores the real-world implications of a migrant with extraordinary powers."

KJ