Thursday, June 11, 2020
By Isabel Norwood, University of Colorado Law School
The Trump administration’s rejection of asylum-seekers at the US-Mexico border in the wake of the Coronavirus pandemic has drawn reproach from many corners for potentially violating both domestic and international law. As ImmProf previously reported, on June 9, the ACLU filed a lawsuit on behalf of a 16-year-old boy from Honduras who fled persecution and sought to reunite with his father in the U.S. The boy was apprehended by CBP on June 4th and is being held in its custody. The lawsuit claims that the CDC order, which suspended certain “covered aliens” from entering the United States in the name of Coronavirus concerns, contravenes existing laws that unaccompanied children from Central America must be transferred to the care of the Office of Refugee Resettlement within 72 hours. It is the first case challenging the CDC order to hit U.S. courts..
On April 17, 2020, the United Nations also responded to the CDC order, stating that it amounted to refoulment, or the forcible return of refugees or asylum seekers to a country where they are at risk of persecution. “We understand that in the current global Covid-19 public health emergency all governments have an obligation to enact measures to protect the health of their populations. While this may warrant extraordinary measures at borders, expulsion of asylum seekers resulting in refoulement should not be among them,” said Chris Boian from the UN Refugee Agency.
Other human rights groups and legal observers have similarly stated their opposition to the order. Human Rights Watch commented that the order fails to address “US obligations to asylum seekers and unaccompanied migrant children, who are also often asylum seekers, under US and international law.” A collection of legal and humanitarian groups in the U.S. condemned the order, saying that, “These expulsions violate U.S. refugee, immigration and antitrafficking laws passed by Congress, as well as due process and U.S. treaty obligations to protect people at risk of return to persecution and torture.”
Despite the pushback, the Trump administration has indefinitely extended the CDC Order, saying that it has successfully reduced the risk of Coronavirus transmissions to Border Patrol agents.
Isabel Norwood is a 2L at the University of Colorado Law School in Boulder and Vice-President of the Immigration and Policy Law Society.
The American Civil Liberties Union, Center for Gender & Refugee Studies, and Oxfam filed the nation’s first legal challenge (J.B.B.C. v. Wolf) to the Trump administration’s order restricting immigration at the border based on the invocation of the Public Health Service Act.
The order authorizes the summary removal of unaccompanied children without due process — even if the child is fleeing danger and seeking protection in the United States and shows no signs of having COVID-19. It also authorizes the summary removal of adults seeking protection in the United States.
The lawsuit argues that the administration is not authorized to issue the expulsion order under public health provisions in Title 42 of the U.S. Code — provisions that have rarely been used and never in this way. Title 42 does not permit expulsions of noncitizens who are in the United States, nor does it legally allow the removal of children.
The case was filed in federal court in Washington, D.C.
The complaint and other filings can be found here.
For several years, the Chief Justice of California has sought to keep Immigration and Customs Enforcement (ICE) away from the California courts. Last year, a federal judge in Massachusetts blocked ICE courthouse arrests there.
CNN reports the latest skirmish between the state courts and federal immigration enforcement.
The Department of Justice and the Department of Homeland Security Propose Rule on Procedures for Asylum and Withholding of Removal
The Trump administration has engaged in a massive transformation of the asylum system in the United States. And the effort to reform the system is not finished. In what have been described as "sweeping asylum restrictions," the administration are proposing new changes to the asylum process.
This announcement ("The Department of Justice and the Department of Homeland Security Propose Rule on Procedures for Asylum and Withholding of Removal") was released on June 9:
"The Department of Justice and the Department of Homeland Security (collectively, the Departments) submitted to the Federal Register for publication a notice of proposed rulemaking (NPRM) that would amend multiple provisions of the Departments’ regulations to create more efficient procedures for the adjudication of claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) regulations. The NPRM is now available for public inspection and is expected to publish in the Federal Register in the near future.
The NPRM proposes to make the following changes to the Departments’ regulations:
- Amend the regulations governing credible fear determinations so that individuals found to have such a fear will have their claims for asylum, withholding of removal, or protection under the CAT adjudicated by an immigration judge in streamlined proceedings, rather than in immigration court proceedings conducted under section 240 of the Immigration and Nationality Act (INA);
- Permit immigration judges to pretermit asylum applications without a hearing if the application does not demonstrate prima facie eligibility for relief;
- Clarify when an application is “frivolous”;
- Clarify standards for the adjudication of asylum and withholding claims including amendments to the definitions of the terms “particular social group,” “political opinion,” “persecution,” and “firm resettlement”;
- Outline factors for adjudicators to consider when making discretionary determinations;
- Clarify the standard for determining the acquiescence of a public official or other person acting in an official capacity under the CAT regulations;
- Raise the burden of proof for the threshold screening of withholding and CAT protection claims from “significant possibility” to a “reasonable possibility” standard;
- Apply bars to asylum and withholding when making credible fear determinations; and
- Clarify the requirement to protect certain information contained in asylum applications.
Overall, the NPRM, consistent with the INA, would allow the Departments to more effectively separate baseless claims from meritorious ones. This would better ensure groundless claims do not delay or divert resources from deserving claims. The Departments will consider written comments regarding the NPRM that are submitted per the instructions in the publication."
UPDATE (6/11, noon PST): Here is a summary of the details of the proposed rule. Download PROPOSED RULE ON ASYLUM_WH_CAT_SUMMARY
UPDATE (6/12, 2:45 p.m. PST): America's Voice offers this critical assessment of the proposed asylum rule.
UPDATE (June 14, 8;35 a.m. PST): Immigration Impact considers the proposed rule and offers this final assessment: "In sweeping new proposed regulations announced on June 11, the Trump administration took the first step toward administering a final blow to the U.S. asylum system." (emphasis added).
“The Trump administration’s proposed regulation would represent the end of the asylum system as we know it. It directly conflicts with the immigration statute, upends years of caselaw, and intentionally raises asylum standards to unreachable heights…
…Asylum has already been greatly weakened by years of sustained attacks from the Trump administration, and this regulation would be the final blow to our once proud legacy of the United States as a refuge for vulnerable and persecuted populations of the world.”
This Article takes immigration federalism “all-the-way-down” by focusing on two counties in Southern California—Los Angeles County and Orange County—to consider the role that subfederal governmental entities play in immigration enforcement. Part I synthesizes the existing literature on immigration federalism with particular attention to the role of sublocal, local, county and regional actors. Part II maps out local immigration enforcement policies in Los Angeles and Orange Counties from 2015 through 2018 to illustrate the complex and sometimes contradictory policy choices made at the substate level. Part III explores the effects of these regional policy choices, both in terms of their impact on federal immigration enforcement patterns in these counties and—drawing on 150 in-depth interviews with Southern California residents in the period from 2014–2017—how people living in those counties experienced these policies. Part IV explores how this bottom-up view of immigration enforcement policies may inform existing theories of federalism and localism, particularly within the immigration context.
Sustained analysis of immigration enforcement policy choices within a particular local context illustrates the tremendous importance not just of state but also of substate immigration enforcement choices. It also highlights the complexities of local governmental control, demonstrating the ways that specific county and local actors can undercut or enhance state and federal enforcement choices. Finally, this analysis illustrates that noncooperation “sanctuary” policies may serve an important, trust-building signaling function to residents, but also that such policies are not sufficient in and of themselves to generate trust. This is because local officials can and do exploit the vulnerabilities of immigrant populations to target them in ways that increase their costs, decrease their feelings of security and diminish their trust in law enforcement even when those individuals are not actually arrested or sent to jail, let alone referred to immigration agents. Residents, and particularly Latinx residents are policed in the shadow of deportation. Exploring immigration federalism all the way down reveals that building secure communities for these residents will require an end to criminal enforcement practices that rely on markers of race, class and geography to target and leverage the vulnerability of community members.
Wednesday, June 10, 2020
U.S. Asylum Agreement with Guatemala is Source of New Human Rights Abuses, Georgetown Law’s Human Rights Institute Finds
For generations forward, scholars will be studying the immigration actions of the Trump administration. There is a question whether the Trump administration is, figuratively speaking, "covering its tracks" with respect to the immigration courts.
Earlier this month, I blogged about a recent report from the Transactional Records Access Clearinghouse (TRAC), a respected group based at Syracuse that provides reliable data on government action, including immigration matters. The report concluded that
"the data updated through April 2020 it has just received on asylum and other applications for relief to the Immigration Courts are too unreliable to be meaningful or to warrant publication. We are therefore discontinuing updating our popular Immigration Court Asylum Decisions app, and will take other steps to highlight this problem. We also wish to alert the public that any statistics [the Executive Office for Immigration Review (EOIA)] has recently published on this topic may be equally suspect, as will be any future reports the agency publishes until these major data deficiencies are explained and rectified.
The EOIR's apparent reckless deletion of potentially irretrievable court records raises urgent concerns that without immediate intervention the agency's sloppy data management practices could undermine its ability to manage itself, thwart external efforts at oversight, and leave the public in the dark about essential government activities. Left unaddressed, the number of deleted records will compound each month and could trigger an expensive data crisis at the agency. And here the missing records are the actual applications for asylum, and how the court is handling them. This is a subject on which there is widespread public interest and concern."
Nolan Rappaport on The Hill expresses concerns about the EOIR's treatment of data. He notes that revealed in a report in October 2019, that EOIR was removing court records from its data. TRAC’s efforts to persuade EOIR to stop doing this and to replace the missing data have been unsuccessful.
In a June 3, 2020 report, TRAC concludes that the data it has received on asylum and other applications for relief through April 2020 are too unreliable to be meaningful — and it has stopped updating its public data on asylum. It also notes that data it has received and posted in recent months may not be accurate.
Rappaport, once a staffer on immigration to the House Judiciary committed, concludes:
"I agree with TRAC’s conclusion in its June report that EOIR's apparently `reckless deletion of potentially irretrievable court records raises urgent concerns.'
The agency's failure to produce coherent data in response to regular (and expected) FOIA requests is inexplicable. What’s more, it makes it more difficult to identify and correct problems the immigration court is having, it prevents congress from conducting meaningful oversight, and it makes it impossible for the public to know how well the immigration court system is actually functioning."
Professor Lindsay Harris Honored with American Immigration Lawyers Association 2020 Excellence in Teaching Award
Professor Lindsay Harris has been honored with the American Immigration Lawyers Association 2020 Elmer Fried Excellence in Teaching Award for her exemplary work educating future immigration attorneys.
Professor Harris supervises students representing D.C. community members in removal proceedings and applications for humanitarian immigration relief. She also leads service-learning trips to detention centers and the U.S./Mexico border."
Photo of George Floyd mural from My Modern Met
A sign of the times: CNN has a page "Black Lives Matter protests across the US and world: Live updates."
The question is whether the push for racial justice will remain after the funerals and grieving. Bill Hing and others called on all of us to stand up in our daily lives to racism. Hope we are up to the challenge of reforming our criminal justice system as well as beginning the long road to remedying racial injustice.
While we must address the racial violence in our criminal justice system, we should not forget the racial disparities in health care, education, employment, etc. The coronavirus also has illuminated racial disparities. For example, Black, Latino and Pacific Islander residents of Los Angeles County are twice as likely to have died from infection by the coronavirus, a troubling sign of the role racism and inequity have played in the uneven spread of COVID-19.
Immigration Article of the Day: The Rise of Zero Tolerance and the Demise of Family by Mariela Olivares
This article explores the intersection of immigration law and family law and argues that the current regime dedicated to decimating immigrant families in the United States does not comport with the history and spirit of immigration law and policy. Policies shifting away from family unity and towards an inhumane treatment of immigrant families is anchored in the political rhetoric that normalizes the oppression of immigrants. By characterizing immigrants as nonhuman — even “animals,” as described by President Donald Trump — the current slate of anti-immigrant policies that specifically target families is normalized. Part I discusses contemporary immigration law that terrorizes the family unit and explores the Zero Tolerance Prosecution policy against asylum seekers and other entering immigrants that led to Customs and Border Protection officials tearing children away from their parents at the border. The continuation and expansion of family detention bolsters the policy, in which immigrant families and unaccompanied minors are held in government custody. These policies prevail in part because the narrative surrounding immigrant criminality and dehumanization — despite empirical evidence demonstrating no correlation between immigrant status and criminality — paves the way to more easily tyrannize immigrant families.
In contrast to this contemporary movement against the family, Part II provides critical historical context, asserting that the history of immigration law and policy is one deeply committed to family unity. Although this history is clearly marred by the deeply entrenched legacy of racial and ethnic discrimination and is rooted in principles of male dominance, it is undeniable that family primacy is a fundamental principle in immigration law. Part III then explores immigration law’s precarious intersection with the laws that protect families and children, noting how immigration policies cloaked as national security measures have more recently infringed upon immigrant families’ decision making. The last generation of jurisprudence, though, has embraced a broader fealty to family integrity. This Part also discusses how policies of detaining immigrant families and children and separating immigrant families are in direct contradiction to the law’s established commitment to actions that are in the best interests of children and pursuant to child welfare standards. This discussion then leads to Part IV’s exploration of the recent litigation and advocacy efforts to dismantle the Family Separation Policy. It then predicts that this litigation and movement are harbingers of establishing due process rights of immigrant family integrity. The article concludes with a call to advocates to resist the demeaning, dehumanizing narrative and to push forward in preserving and protecting families.
Tuesday, June 9, 2020
Professor Shoba Sivaprasad Wadhia is the New Associate Dean for Diversity, Equity, and Inclusion at Penn State Law
Penn State Law has announced that superstar immigration professor Shoba Sivaprasad Wadhia is the new Associate Dean for Diversity, Equity, and Inclusion at Penn State Law beginning July 1, 2020. She has been a leader for years in efforts at Penn State Law to advance diversity, equity, and inclusion, and is playing an important leadership role currently as we listen to our Black student leaders, develop concrete action steps, and work to implement them.
Congratulations Professor Wadhia!
Immigration Article of the Day: The 1986 Immigration Reform and Control Act as Antecedent to Contemporary Latina/o/x Migration by Mariela Olivares
The 1986 Immigration Reform and Control Act as Antecedent to Contemporary Latina/o/x Migration by Mariela Olivares, 37 UCLA Chicana/o Latina/o Law Review 1, 2020
This essay focuses on a vital question: what can immigrant advocates learn from the history of immigration law and policy reform? The topic is vast, but in this essay, I offer a brief look at one of the most critical pieces of contemporary legislation — the 1986 Immigration Reform and Control Act (IRCA). I discuss the effects of IRCA on Latina/o/x migration through a historical and critical legal studies lens. First, I discuss the history of immigration law and policy and the important and undeniable intersections between immigration law and formal and informal racial and ethnic discrimination. I provide a brief review of the history prior to the passage of IRCA to understand the political context of its passage and of its effects. The essay then explores the passage of IRCA and its immediate effects on the legalization of millions of previously undocumented immigrants, while also noting the gendered implications of the legalization program. In fact, IRCA helped set the stage for continued gendered discrimination against women migrants by favoring the traditional male workforce in the agricultural industries. Moreover, despite its antithetical purpose, the legalization program resulted in increased rates of undocumented migration from Central America. Next, the essay contextualizes this historical perspective to more contemporary times by noting how IRCA-era migration trends are reflected in more recent numbers of Central American migration and in current political movements to legalize other sectors of undocumented immigrants, like in the Deferred Action for Childhood Arrivals (DACA) program and the now-failed Deferred Action for Parental Accountability (DAPA) program. More recently, these trends have influenced increased numbers of undocumented families and children to risk migration to the United States. The essay concludes by commenting on the continuation of these entrenched historical trends.
Monday, June 8, 2020
The American Immigration Council recently released a fact sheet on Immigrants in California. Among the facts listed:
More than a quarter of California residents are immigrants, while nearly one in four residents is a native-born U.S. citizen with at least one immigrant parent.
More than half of all immigrants in California are naturalized U.S. citizens.
Over 2 million U.S. citizens in California live with at least one family member who is undocumented.
California is home to over 186,000 Deferred Action for Childhood Arrivals (DACA) recipients.
One in three workers in California is an immigrant, together making up a vital part of the state’s labor force in a range of industries.
Immigrants are an integral part of the California workforce in a range of occupations.
Immigrants in California have contributed tens of billions of dollars in taxes.
As consumers, immigrants add hundreds of billions of dollars to California’s economy.
Immigrant entrepreneurs in California generate tens of billions of dollars in business revenue.
Amy Howe on Howe on the Court lists the remaining decisions from the Supreme Court 2019 Term. Some of the most controversial cases are left, including ones involving LBST protections, abortion, the Affordable Care Act, and more. There also are two immigration cases left.
1. DACA: Department of Homeland Security v. Regents of the University of California (consolidated with Trump v. NAACP and Wolf v. Vidal(argued November 12, 2019): Challenge to the Trump administration’s to end the program known as Deferred Action for Childhood Arrivals. Roberts is the only member of the court who has not yet written an opinion for November.
2. Expedited Removal: Department of Homeland Security v. Thuraissigiam (argued March 2, 2020): Whether a federal law that limits judicial review of expedited deportation orders in habeas corpus proceedings violates the Constitution’s suspension clause.
It is expected that the Supreme Court will release decisions on June, 15, June 22, and June 29.
Minutes ago, the Supreme Court granted cert in Niz-Chavez v. Barr, No. 19-863. This immigration case raises a technical issue: Whether, to serve notice in accordance with 8 U.S.C. § 1229(a) and trigger the stop-time rule, the government must serve a specific document that includes all the information identified in Section 1229(a), or whether the government can serve that information over the course of as many documents and as much time as it chooses.
The case involves the application of the Court's 2018 decision in Pereira v. Sessions, 138 S. Ct. 2105, 2116 (2018). The Sixth Circuit in an unpublished memorandum had denied Niz-Chavez's petition of review.
will seek to resolve a circuit split over whether these immigration court notices, known as a notice to appear, can consist of multiple documents, or whether they must contain all the legally required information in one document to trigger the so-called stop-time rule.
That rule stops the clock on time an immigrant spent in the U.S. prior to receiving a notice to appear, which can determine whether the immigrant can qualify for certain forms of deportation relief."
Mexico’s Migration and Asylum Policies, and Conditions at U.S.-Mexico Border, Have Been Significantly Reshaped in Year Since U.S.-Mexico Migration Cooperation Deal Was Signed
On June 7, 2019, after months of heightened Central American migration through Mexico to the United States, the Mexican and U.S. governments signed an agreement to work together to control the movement of asylum seekers and other migrants to the U.S. border. This ushered in an intense period of policy and institutional change that is reshaping Mexico’s immigration enforcement and humanitarian protection systems, and has also had significant impacts on conditions for migrants at the U.S.-Mexico border.
A new Migration Policy Institute (MPI) policy brief, One Year after the U.S.-Mexico Agreement: Reshaping Mexico’s Migration Policies, traces the changes resulting from the signing of the migration cooperation proclamation. It also examines the effects on the U.S.-Mexico border of the policy responses undertaken by both governments to contain the spread of COVID-19.
After being threatened with steep tariffs on Mexican goods, Mexico agreed to step up enforcement efforts at its border with Guatemala and in the country’s interior, including by deploying its newly created National Guard for immigration missions. It also accepted the expansion of the U.S. Migrant Protection Protocols (MPP, also known as Remain in Mexico) along the U.S.-Mexico border, and promised to increase collaboration with the United States to disrupt migrant-smuggling networks. These enforcement-first actions marked a departure from the policy agenda the administration of President Andrés Manuel López Obrador had sketched upon taking office in December 2018, which promised a greater focus on human rights as well as creation of legal pathways to facilitate orderly migration.
For its part, under the agreement, the United States pledged to expedite the asylum cases of migrants waiting in Mexico under MPP and to invest in economic development efforts in southern Mexico and Central America to address the drivers of migration.
Within 90 days of implementation, illegal migration at the U.S.-Mexico border and throughout Mexico sharply decreased, meeting the agreement’s primary objective. Heightened Mexican enforcement combined with U.S. unilateral policies designed to narrow access to asylum at the U.S.-Mexico border also increased demand for humanitarian protection within Mexico: asylum requests more than doubled, from 30,000 in 2018 to 71,000 in 2019.
While the full impact of the deal will likely take years to unfold, this policy brief charts trends in migrant apprehensions and returns by Mexican authorities, the volume of asylum applications filed in Mexico, and returns to Mexico under the U.S. MPP program. The brief also examines challenges that have intensified during this time, including the precarious conditions many migrants face while waiting in Mexican border communities for their U.S. asylum cases to be heard and the COVID-19 pandemic that hit in early 2020. Looking ahead, the brief highlights opportunities for further policy development.
International Organization for Migration: The Montreal Recommendations on Recruitment: A Roadmap towards Better Regulation
Migrant workers can be vulnerable to abuse and exploitation during migration and employment due to factors including unethical recruitment, migration status, fear of deportation, or the inability to find alternative employment, particularly during the current COVID-19 crisis.
Today (8 June) the International Organization for Migration is publishing new, pioneering guidance for Member States on the regulation of international recruitment and protection of migrant workers.
The Montreal Recommendations on Recruitment: A Roadmap towards Better Regulation provides clear guidance to policymakers on how to protect migrant workers during recruitment, migration, and employment. It is designed to help develop comprehensive, multi-faceted approaches to promote ethical recruitment, enhance transparency and accountability, and improve the migration and employment outcomes for all stakeholders.
This resource presents policymakers and regulators with practical guidance and ideas to improve regulation and oversight of international recruitment and protection of migrant workers. It covers a broad range of themes, including the following: (a) recruitment fees; (b) licensing and registration of labour recruiters; (c) inspections and enforcement; (d) access to grievance mechanisms and dispute resolution; (e) bilateral and multilateral mechanisms; and (f) migrant welfare and assistance. The guidance results from a global conference held in Montreal, Canada, that brought together leading experts and practitioners from more than 30 countries around the world. It reflects an important milestone in global efforts to promote ethical recruitment.
As early as later this morning, the Supreme Court could decide the lawfulness of President Trump's attempted rescission of the Deferred Action for Childhood Arrivals (DACA) policy. A decision is likely to be handed down by the end of June, the end of the Court's 2019 Term.
Anita Kumar on Politico analyzes the possible political impacts if the Supreme Court upholds the Trump administration's dismantling of DACA. She notes that "no side expects President Donald Trump will immediately end the program if the ruling goes in his favor. Instead, Trump is expected to slowly wind down the program and use that as leverage to try and strike a broader immigration deal with Democrats this summer, according to six people familiar with the situation."
Democrats want to wait to see if their party wins back the White House and Senate in November. Kumar reports that Trump’s team plans to blame Democrats for not being willing to negotiate. Democrats, and their likely presidential nominee Joe Biden, are running on a pledge to make DACA permanent
"Already, Jared Kushner, the president’s son-in-law and senior adviser, has floated including DACA as part of a broader immigration package after the Supreme Court ruling, according to two of the people familiar with the conversations. And some Senate offices, both Republicans and Democrats, have started talking about what they could ask for in exchange for legal status for Dreamers, according to those familiar with the conversations."
Sunday, June 7, 2020
Shuttered Canada-US border highlights different approaches to the pandemic – and differences between the 2 countries
Daniel Baldwin Hess and Alex Bitterman for The Conversation write about different responses to the COVID-19 pandemic in the United States and Canada. They note that "the the recent closure of the U.S.-Canada border because of the coronavirus underscores a growing divide between the two countries":
"In response to the coronavirus pandemic, the U.S. closed its border to Canada for the first time since the War of 1812.
Halting leisure traffic and barring entry to noncitizens, the closure impedes consumers who want to cross the border to shop and take advantage of favorable exchange rates, lower prices or greater product selection. The closure also effectively suspends tourism and blocks the daily commute for cross-border workers and property owners, until at least June 21.
The Trump administration announced it planned to deploy military troops to the U.S.-Canada border, too, also a move not seen since 1812. Ultimately, at the urging of the Canadian government, the U.S. relented and did not install troops at the border.
These thorny actions mark a shift in the normally friendly relationship between the countries.'
NPR reports that a new poll shows that two-thirds of Americans think President Trump has increased racial tensions in this country. 67% said Trump has mostly increased racial tensions, including 92% of Democrats, 73% of independents, 88% of Africans Americans and 63% of whites. The poll comes in the wake of criticism of Trump's handling of the protests from, among others, former President George W. Bush and Retired Marine Gen. Jim Mattis.