Tuesday, November 24, 2020
Steve Kopits for the Princeton Policy Advisors reports that, for the month of October, US Customs and Border Protection reported 66,337 apprehensions at the US unsecured southwest border. This is 12,000 higher than the previous month and the highest for October since 2005. For context, October's apprehensions averaged twice the level for the month during the Obama years. Check out the analysis here.
The American Immigration Lawyers Association issued comprehensive recommendations calling upon President-Elect Joe Biden to implement a powerful new vision for immigration. AILA stands ready to work with the incoming Biden-Harris administration to get the job done.
1) Proclaim a message of welcome;
2) Ensure fairness, efficiency and accountability in the legal immigration system;
3) Restore integrity, fairness, and efficiency to the immigration courts;
4) Ensure the fair and humane treatment of migrants at the border;
5) Restore asylum law and protections for victims of crime;
6) Guarantee legal assistance and counsel;
7) End inhumane detention;
8) Set a vision for immigration enforcement that is fair, humane and effective;
9) Improve Customs and Border Protection adjudications and processing at ports of entry;
10) Protect undocumented people and others with deep ties to America;
11) Reform employment-based and family-based visa programs; and
12) Ensure the Department of State is properly resourced to provide fair and efficient consular processing.
Catherine Rampell for the Washington Post tells the story of Leticia and her son, who crossed the Rio Grande seeking asylum from danger in Guatemala. Instead, they were torn apart by a policy designed to inflict trauma. Now, she is fighting for restitution for families like hers.
"Leticia tells her story to anyone who will listen: judges, journalists, political officials. She recounts the moment she realized strangers had snatched her son while she slept in a migrant detention cell; and the agonizing month that followed, when no one would tell her where her child was or whether he was even alive.
Sharing this story is painful. But Leticia knows it would be more painful to still be living this experience, as hundreds of families still are. Because the U.S. government is, even today, separating families.
`For them I would tell my story over and over again' she says.
Before the country moves on, before a new administration and the public try to put this national atrocity in the rearview mirror: Leticia wants us all to remember. She wants us to provide what is owed to hundreds of children whose deported mothers and fathers still haven’t been located, because the government didn’t bother to keep records; and to the thousands more families who have been found, and in some cases reunited, but still fear for their lives.
Three years ago, Leticia and her son became victims of one of the largest-scale, ethnically motivated human rights abuses perpetrated by the U.S. government since Japanese internment. Today, they want to be advocates." (bold added).
s issued by President Donald Trump. It analyzes the Supreme Court’s decision in Trump v. Hawaii, especially the Court’s discussion on rational basis review. The article explains the Supreme Court’s jurisprudence regarding the role that both underinclusivity and overinclusivity play in rational basis analysis. It analyzes the underinclusivity and overinclusivity of Trump’s travel bans and his discriminatory animus against Muslims in light of travel bans.
Monday, November 23, 2020
Breaking News: Biden Announces Intention to Nominate Alejandro Mayorkas as Homeland Security Secretary
NBC News reports that President-elect Joe Biden has announced that Alejandro Mayorkas will be his nominee for Homeland Security secretary. Mr. Mayorkas previously served as Deputy Secretary of the U.S. Department of Homeland Services during the Obama administration. He currently is a partner at WilmerHale in Washington, DC.
Nolan Rappaport on the Hill reports on a development that would surprise many people:
"Nevertheless, attorneys do not need immigration law experience to become an immigration judge.
You read that correctly: Aspiring immigration judges need not have actual experience — just strong credentials in skills necessary to be a judge. The government will “train” them in the law. The problem is the training program for new judges does not spend enough time teaching immigration law to give them the knowledge they will need as immigration judges.
. . .
Recent hires in December 2019, included 11 attorneys with no immigration law experience. They began hearing cases in January 2020." (bold added).
U.S. Faces Key Opportunity to Reset Cooperation with Mexico and Central America & Build a Workable Regional Migration System
Migration from Central America and Mexico to the United States is an enduring, often shifting phenomenon that demands intelligent management. While the Trump administration focused heavily on a unilateral, enforcement-only approach to managing migration from the region, the strategy is unlikely to be sustainable.
As the incoming Biden administration begins to formulate its immigration policy agenda, it faces a signal opportunity to create a sustainable strategy, one built around regional cooperation. Such a strategy will not end illegal immigration entirely, an oft-cited if unrealistic policy aim, but stands a chance of managing it more effectively while also allowing the countries in the region—including the United States—to better harness the value of immigration.
A new report from the Migration Policy Institute’s Rethinking U.S. Immigration Policy initiative, Building a New Regional Migration System: Redefining U.S. Cooperation with Mexico and Central America, outlines a strategy to turn some of the region’s unauthorized migration flows into legal ones, restore access to humanitarian protection, professionalize border enforcement and make targeted investments to address some of the pressures that contribute to large-scale emigration.
The report, by MPI President Andrew Selee and Policy Analyst Ariel Ruiz Soto, offers the elements that a successful regional cooperation strategy should encompass:
- Expanded temporary labor migration pathways. Extending seasonal work visas, currently primarily allotted to Mexican nationals, to workers from Central America would help reduce irregular movements and provide economic migrants with short-term employment opportunities. Incentivizing employers to develop talent pipelines in the region and improving visa programs so that they are flexible and preferential to the countries with high migration pressures (Guatemala, Honduras and El Salvador) may facilitate more orderly and transparent migration flows.
- Rebuilding humanitarian protection systems. Following the Trump administration’s near-total ending of asylum at the U.S.-Mexico border, the incoming administration should move to re-establish fair asylum procedures while taking actions to streamline the process and relieve an overburdened immigration court system. Among other steps to revive humanitarian protection, the United States should create alternative ways to protect those facing persecution, including with in-country protection programs that identify them closer to home and resettling some through refugee programs as part of a multilateral effort that involves Canada, Mexico, Costa Rica and other countries in close coordination with UN agencies.
- Ensuring transparent and rules-based border enforcement. While enforcement of immigration laws will continue to be a central component of a regional migration management strategy, U.S. and Mexican enforcement measures should be transparent, rules-based and prioritize humanitarian considerations, including in the United States by way of alternatives to detention.
- Investment in economic and institutional development in countries of origin. While Mexico and Central American countries have made economic advancements, the COVID-19 pandemic is likely to exacerbate existing economic and social pressures that lead people to migrate. Devising innovative strategies, such as leveraging remittances for economic development and strengthening institutions that protect the rule of law, serve migration management goals alongside regional security and economic growth.
“To move the needle towards safer, more orderly, and legal migration, the United States will need to enhance collaboration across the region and, together with its partners, design and implement a multifaceted regional approach to an enduring regional phenomenon,” said Selee.
Job Announcement: Rutgers Immigrant Rights Clinic seeks Managing Attorney for its Detention and Deportation Defense Initiative (DDDI) Project
The Immigrant Rights Clinic at Rutgers Law School in Newark, New Jersey, is seeking to hire an experienced attorney to serve as Managing Attorney in its Detention and Deportation Defense Initiative (DDDI) project, to start in November or December 2020. Depending on the successful candidate’s qualifications, the title could also be Senior Managing Attorney. We expect this to be a long term position, contingent on renewed funding. The Managing Attorney will work with Professor Anju Gupta, Director of the Immigrant Rights Clinic (IRC), and staff attorneys and staff in the clinic’s detention project.
The Rutgers Immigrant Rights Clinic is one of four partners in an exciting and innovative project, funded by the state of New Jersey and Essex county, to provide legal representation to detained immigrants. The ultimate goal of the project is to provide universal representation to immigrants detained in New Jersey. With this funding, Rutgers has hired a Senior Detention Attorney, an experienced Staff Attorney, a Paralegal, and two post-graduate Detention Fellows, and now seeks to hire an additional experienced attorney. The Managing Attorney will represent detained immigrants before the immigration court and Board of Immigration Appeals and/or in habeas petitions before the federal courts (depending on the successful candidate’s interest and experience). The Managing Attorney will also oversee the DDDI project’s operations, including case assignment, hiring, professional development of the office staff, and budgeting, and will supervise the project attorneys and nonclinical law student interns providing assistance with the project. The caseload for the position will be appropriately reduced to take into account these managerial duties. The position will benefit from the support of a full-time paralegal, devoted exclusively to this project.
- A law degree;
- At least five years’ experience representing immigrants, preferably detained immigrants, before the immigration courts, Board of Immigration Appeals, and the federal courts;
- Membership in a bar of any state (NJ bar membership or willingness to become a member of the NJ bar is desired);
- Ability to work independently and as part of a team (managerial or supervisory experience is desired, though not required); and
- Strong written and oral communication skills (fluency in another language, particularly Spanish, is a plus, though not required).
This is a full time, year-round position. The Immigrant Rights Clinic is housed at Rutgers Law School in Newark, a short train ride or drive away from New York City. (Given the pandemic, the position will likely begin remotely, but we anticipate this will be an in-person position, once it is safe to return to the office.) The salary will be commensurate with experience, but we anticipate that it will be between $90,000 – $110,000/year, plus excellent benefits through Rutgers University. Applications will be reviewed on a rolling basis, but interested candidates should submit a cover letter, resume, list of references, and unofficial law school transcript no later than December 15, 2020. The cover letter should address all of the position requirements listed above. To apply, go here.
It is university policy to provide equal employment opportunity to all its employees and applicants for employment regardless of their race, creed, color, national origin, age, ancestry, nationality, marital or domestic partnership or civil union status, sex, pregnancy, gender identity or expression, disability status, liability for military service, protected veteran status, affectional or sexual orientation, atypical cellular or blood trait, genetic information (including the refusal to submit to genetic testing), or any other category protected by law. As an institution, we value diversity of background and opinion, and prohibit discrimination or harassment on the basis of any legally protected class in the areas of hiring, recruitment, promotion, transfer, demotion, training, compensation, pay, fringe benefits, layoff, termination or any other terms and conditions of employment. For additional information please see the Non-Discrimination Statement here.
Catlin Dickerson for the New York Times reports that "[u]ndocumented women are risking their health by postponing prenatal care and giving birth at home in response to the Trump administration’s immigration enforcement policies."
President Trump’s public charge rule has led some immigrants to avoid accessing public benefits and medical care. Undocumented people have also avoided medical care to avoid being detected and possibly deported. Doctors and health officials say this extends to pregnant undocumented women, who are afraid to seek prenatal care. The revised public charge rule threatens an immigrant’s chances of getting a visa or achieving citizenship if they have relied on public benefits.
As Dickerson writes,
"Though undocumented immigrants are ineligible for most welfare programs and have been shown to use those that are available at lower rates than American citizens, the Trump administration said the expansion was necessary to discourage people who could not support themselves financially from moving to the United States. `Give me your tired and your poor who can stand on their own two feet and who will not become a public charge,' Kenneth T. Cuccinelli II, the acting director of United States Citizenship and Immigration Services, said at the time."
Julia Preston for the Marshall Project writes on the formidable challenges to President-elect Biden to overturning the Trump administration immigration policies:
"As President-elect Joe Biden moves deliberately to transition towards the White House, even while Trump refuses to accept defeat, he has laid out a fast-paced agenda to unwind Trump’s harsh immigration policies. But even if Biden quickly orders a final end to family separations and re-opens the border for asylum-seekers, his plans could stall without action at the Justice Department, which holds extensive power over the immigration system.
To carry out Biden’s proposals, his attorney general will have to reverse decisions by Sessions and Attorney General William Barr that sharply limited asylum . . . . Biden’s justice officials will have to contend with an immigration appeals court loaded by Barr with conservative judges known for denying asylum."
Immigration Article of the Day: The Final Act: Deportation by ICE Air by Deborah M. Weissman, Havan Clark, & Angelina Snodgrass Godoy
Immigration enforcement has long served as an indicator of the prevailing visceral fears and loathing toward the Other. The foreign is always suspect. Foreigners in great numbers are especially suspicious. These developments are historically tied to the conventions of colonialism, expanded as a function of foreign policy, and to be sure, ideology. By the mid-2010s, the Global South was characterized as “shithole countries,” populated by people who were terrorists, rapists, murderers, and corrupt drug dealers. These representations have shaped a retributive agenda and served to create a structure with roots in federal policies and branches in localities throughout the country through which to expel noncitizens.
Deportation is a legal concept about which much has been written. But it is more complicated. For noncitizens, forced expulsion is a lived experience occurring in time and space—an act against the body, mostly black and brown bodies. In this Article we part ways with the well-established narratives of deportation and the punishment/non-punishment paradigm to conceive of deportation not only as a legal concept, but as a physical act—the final act—that is, the culmination of the immigration enforcement dragnet. The physical removal of persons from the United States requires a complex system comprised of aviation networks and their various components, airports and airplanes, hangars and flight crews, and an array of physical restraints to intimidate, punish, or subdue deportees. We examine this infrastructure to illuminate the circumstances of expulsion and the egregious rights violations often suffered by deportees—violations that are almost always hidden from public view.
The Article considers the “legal” trajectories of forced expulsion to demonstrate how hostility toward immigrants has given rise to an ever-expanding deportation apparatus by which growing numbers of immigrants are stripped of legal protections, subjected to a subverted legal processes that result in a heightened risk of wrongful deportation and thus by which immigrants reach the point of the final act of removal. It takes up concerns largely unaddressed in legal scholarship: the detailing of human rights abuses on airplanes and airports—sites that function as the terminal instrumentalities of banishment. It then examines airports and airplanes as sites of resistance in the context of immigration federalism debates. We build on the literature that has called attention to the importance of political geography and immigration devolution policies to underscore the importance of new forms of local activism as a means to assert immigrant rights.
The efforts to accelerate the removal of non-citizens from the United States has reconfigured the historic narrative about nation’s relationship to immigration and immigrants. Concerns for the humanity of immigrants requires attention to all facets of the injustices of deportation, including the sites of the final act of removal. This Article demonstrates that this may be accomplished through a variety of political and legal strategies designed to call attention to the ways that deportation violates rights protection that exist at the very local to the very global levels of law. What this article offers is a way of understanding and modeling new forms of resistance at sites previously overlooked-- resistance that must stand in for rights protection until the structures of immigration laws and processes can be humanely reset.
Saturday, November 21, 2020
The 2020 edition of the Organisation for Economic Co-operation and Development (OECD's International Migration Outlook analyzes recent developments in migration movements and policies in OECD countries and some non-member countries, and looks at the evolution of the labor market outcomes of immigrants in OECD countries. It includes a special chapter on the impact of migration on the structural composition of the economy. It also includes country notes and a statistical annex.
In summarizing the results of the report, Rural Migration News observes
"The OECD’s annual migration report emphasized that immigration and temporary migration fell sharply in 2020. Both immigration and temporary labor flows are expected to fall by half in 2020 for two reasons. First, the economic recession means that employers are sponsoring fewer foreign workers for immigrant and temporary work visas. Second, governments closed visa-processing facilities and borders to prevent the spread of covid, making it hard to complete the paperwork required for immigration and temporary work abroad.
Governments opened otherwise closed borders for some migrant workers, especially health care and farm workers. The demand for migrant health care workers is rising due to population aging and wages that are sometimes held down in order to avoid raising the taxes that pay the wages of caregivers for children and the elderly. Specialized farms that produce labor-intensive commodities prefer just-in-time guest workers to just-in-case local workers, who may not show up as promised or perform farm work only until they find better nonfarm jobs.
There were 5.3 million immigrants admitted to the OECD countries in 2019, including a quarter to the US. The OECD countries had over 135 million foreign-born residents in 2019, making international migrants over 10 percent of OECD residents."
Bess Levin for Vanity Fair wins the ImmigrationProf title of the day award. And hos is this for an introductory paragraph?
"One of the most evil policies from the uniquely evil Trump administration was that of separating families at the border, including those with children who were actual infants. That policy somehow got a boost in monstrousness last month when it was reported that the government couldn’t find the parents of 545 separated kids, a horrifying situation that Donald Trump responded to by noting that children who may never be reunited with their parents are “so well taken care of” and are “in facilities that are so clean.” And while it would be difficult to top that, somehow the White House and allegedly its resident sadist, Stephen Miller, have risen to the occasion." (bold added).
Friday, November 20, 2020
"On Nov. 19, Judge Susan Illston of the U.S. District Court for the Northern District of California held that a new asylum rule exceeded the power of both the attorney general and the Department of Homeland Security and issued a nationwide temporary restraining order against the rule’s implementation. The rule had imposed blanket, categorical bars on asylum for a whole host of crimes and conduct—such as all felonies, most uses of false identification and aiding close family members entering the U.S.—that had previously lacked this harsh effect. Illston cited on page 21 an amicus curiae brief in which I, along with Penn State Law professor Shoba Sivaprasad Wadhia and Susan Krumplitsch of DLA Piper, served as co-counsel for immigration law scholars. "
For details, click the link above.
Lorelei Laird for Above the Law offers a horror show of immigration damage that the Trump administration can do in its waning days. She offers a no-hold-barred summary of the administration's immigration exploits, which no doubt will go down in the history of infamy:
"For the past almost-four years, the Trump administration’s politically appointed leadership has essentially vandalized the immigration agencies. Just under 50% of the American people trusted them to run agencies that grant visas, naturalize new Americans, run the immigration courts and apply asylum law. That trust has been repaid with abject cruelty, open prejudice, outright lies, and blatant violations of federal and international law, implemented by people who can barely even bother disguising their racism.
None of this was an accident, or the actions of rogue officials; they had every intention of doing more. So I’d be a fool to expect them to leave quietly. I haven’t seen any specifically immigration-focused coverage of how they might set more fires on the way out the door, so in this column, I’m taking a stab at it."
Click the link above to see the immigration possibilities to follow, which read as if they came from a crime noir thriller, including "deporting the witnesses."
The American Society of International Law's International Refugee Law Interest Group (IRLIG) is pleased to announce the seventh annual International Refugee Law Student Writing Competition, co-sponsored by:
- American Society of International Law (ASIL);
- Global Migration Centre, ASIL Academic Partner Graduate Institute of International and Development Studies;
- International Law Students Association (ILSA);
- International Journal of Refugee Law; and,
- Oxford University Press.
Eligibility and Requirements
- Papers may address any topic related to international law and refugees, stateless persons, internally-displaced persons (IDPs), and/or forced migrants.
- Student authors must be enrolled in an undergraduate or graduate degree program at an accredited university at the time of submission.
- Papers must be written solely by the candidate, in English, and may not have been submitted for publication elsewhere.
- Citations should be in footnotes, rather than endnotes. If the paper is selected for publication in the International Journal of Refugee Law, it must comply with the Journal's style guide (https://academic.oup.com/ijrl//pages/style_guide) and the OSCOLA footnote style (https://www.law.ox.ac.uk/sites/files/oxlaw/oscola_4th_edn_hart_2012.pdf). For that reason, students should consider adopting this style in their submission.
- Submissions may range from 7,000 to 12,000 words, including footnotes.
- Each candidate is limited to a single submission.
- Candidates should only resubmit previously unsuccessful submissions following substantial revision.
Deadline and Method of Submission
- The deadline for submissions is 11:59 PM Eastern Standard Time, 15 January 2021.
- Articles should be submitted to email@example.com as Microsoft Word attachments. Questions should be directed to the same address.
- By submitting papers, candidates represent that they fulfill the eligibility requirements of the Competition. The organizers may request formal proof of eligibility.
- No later than 72 hours after the submission deadline, candidates will receive an e-mail confirming that their submissions have been received.
Competition Procedures and Selection Criteria
- The author's name and affiliation, the paper title, and word count should be written on a separate first page. Nothing identifying the author should be included in the paper itself.
- The administrator will detach the first page, and each submitter will be assigned a number. Reviewers will refer only to those numbers in their communications.
- The Competition will be judged by reviewers named by IRLIG, in consultation with ILSA and the other co-sponsors. In assessing papers, reviewers will take into account:
- contribution to the literature;
- knowledge of facts and law;
- proper and articulate analysis;
- extent of research, innovation, and scholarly creativity;
- clarity and organization; and,
- style, grammar, and proper citation of sources.
- A message announcing the name of the winner of the Student Writing Competition will be sent to all members of the International Refugee Law Interest Group following the final selection, as well as to the co-sponsors and to the IRLIG forum on www.asil.org. The winner's name will also appear in the program of the ASIL Annual Meeting. An e-mail with the final outcome will also be sent to all who submitted papers.
Award and Announcement
- The winner of the seventh annual International Refugee Law Student Writing Competition will receive from IRLIG a $100 cash award, as well as complimentary admission to the 115th ASIL Annual Meeting, to be held in Washington, DC, from 24-27 March 2021; a complimentary one-year student membership provided by ASIL; and a £300 book credit with Oxford University Press.
- The winning paper will also be promptly reviewed by the editorial team of the International Journal of Refugee Law, who will also advise and work with the winner with a view to bringing the paper forward to publication.
- The award will be formally presented at the 115th ASIL Annual Meeting.
- To enable the winner to attend the Annual Meeting, the Global Migration Centre at ASIL Academic Partner Graduate Institute of International and Development Studies Geneva will contribute up to Sfr 1,500 toward travel expenses.
As President-elect Biden forges ahead with transition planning for his administration, Nicole Narea at Vox breaks down the top candidates rumored to be under consideration to head up the Department of Homeland Security.
The list includes Alejandro Mayorkas, former deputy secretary at DHS under President Obama, who is "best known as the architect of [DACA];" California Attorney General Xavier Becerra (who Fox News worries also is being considered for Attorney General); Rep. Val Demings (D-Florida); and Lisa Monaco, former Homeland Security adviser for President Obama.
Whatever the choice, the new AG will be very different from Jeff Sessions and Bill Barr.
Ali Noorani, President & CEO of the National Immigration Forum joins Cheddar for a short discussion of what immigration reform could look like under a Biden presidency. His top three, which he said have bipartisan support, are:
1. Extending DACA, which President Trump sought to rescind.
2. Extending Temporary Protected Status (TPS) for Salvadorans, Haitians, and other groups that President Trump has attempted to end TPS for.
3. Increase the refugee resettlement cap from 15,000 to 125,000.
Noorani also thought that a major challenge will be to make the border more flexible while ensuring effective border enforcement.
Thursday, November 19, 2020
A message from Jennifer M. Chacón (o/b/o myself and the rest of the AALS Immigration Law Section Executive Committee: Jill Family, Kit Johnson, Carolina Nuñez and Fatma Marouf)
We just wanted to remind you that registration for the AALS conference is up and running! Here’s the link.
Our panel this year – Outsourced Borders and Invisible Walls – will feature presentations by Stephen Lee (UCI), Lori Nessel (Seton Hall), Stella Burch Elias (Iowa), Paul Gowder (Northwestern), Ming Hsu Chen (Colorado) and Heide Castañeda (Anthropology, University of South Florida). That panel will take place on January 7 from 1:15-2:30 (Eastern). We plan to hold our section business meeting immediately after the panel session. We’ll send more details on that later.
Our works-in-progress session will take place on January 6 from 4:15pm- 5:30pm (Eastern) featuring papers by Tania Valdez (The Case for Abolishing the Fugitive (Alien) Disentitlement Doctrine) and Beth Zilberman (Unenforced Split Enforcement in Immigration Agencies). This session will proceed in two parts. We will first consider Professor Valdez’s paper. She will provide a brief, 5 minute, introduction to her work, highlighting areas for feedback. I (Jennifer) will serve as lead reader on this paper and will offer comments for 10 minutes. Then we’ll have 20 minutes of roundtable discussion by attendees. At the half way mark of our session, we’ll pick up Professor Zilberman’s paper. She will provide a 5 minute introduction, Jill Family (lead reader) will offer comments for 10 minutes, and we’ll have another 20 minutes of roundtable discussion. The two papers will be circulated in advance of the conference to all attendees. Please RSVP at this link so we can be sure to share the paper with you in advance.
We are also co-sponsoring a panel hosted by the Section on Disability Law (January 8 from 11:00-12:15) on “Disability and Intersectionality: Celebrating 30 Years of Intersectionality and the ADA.” And we are co-sponsoring a panel with the Section on Education Law (January 8 from 1:15-2:30) on the future of Plyer v. Doe on its 40th anniversary, featuring Rachel Moran, Hiroshi Motomura, and Michael Olivas.
Details about all of the panels and events can be found in the online program. We look forward to seeing you there!