Wednesday, May 18, 2022
Rights Behind Bars, the California Collaborative for Immigrant Justice, and Centro Legal de la Raza, have filed a federal lawsuit against Immigration and Customs Enforcement (ICE), the GEO Group, and the City of McFarland, California to bring accountability for the wrongful death of Mr. Choung Woong Ahn in immigration detention in 2020.
Here are highlights from the press release:
On the second anniversary of the passing of Mr. Choung Woong Ahn, his family and legal team filed a lawsuit in federal court to seek justice and accountability for his torture and wrongful death at an immigration detention center. Mr. Ahn was a 74-year-old South Korean immigrant who died in custody at the Mesa Verde ICE Processing Center on May 17, 2020, a facility owned and operated by The GEO Group, Inc. Mr. Ahn’s family, represented by Rights Behind Bars, the California Collaborative for Immigrant Justice, and Centro Legal de la Raza, have named Immigration and Customs Enforcement (ICE), the GEO Group, and the City of McFarland, California as defendants in the lawsuit.
Trevor Kosmo, an attorney at Centro Legal de la Raza, stated: “We are proud to represent the Ahn family in their pursuit of accountability. No family should have to experience the agony of losing a loved one behind bars. Mr. Ahn was an elderly man who suffered from serious medical conditions, and was separated from his family for years; instead of being released to the community, or receiving the proper care and treatment he deserved, he died alone in a solitary confinement cell.”
. . . “We know that solitary confinement is a form of torture.” said Lisa Knox, Legal Director at the California Collaborative for Immigrant Justice. “Mr. Ahn was tortured to death by GEO Group and this lawsuit is a step towards accountability for that torture.” . . .
The primaries drew much attention yesterday. In Pennsylvania, Doug Mastriano, described as "a far-right state senator," is the projected winner of Pennsylvania’s Republican primary for governor. He easily bested former Hazleton, Pennsylvania Mayor and Congressman Lou Berletta, who championed an anti-immigrant ordinance in Hazleton that at the time made national news. The Hazleton law "made it illegal for unauthorized immigrants to rent housing and for landlords to rent to individuals they knew to be unauthorized. With the passage of its Illegal Immigration Relief Ordinance in July 2006, Hazleton catapulted itself onto the national political stage and became something of a cause celebre for proponents of state and local activism in immigration enforcement."
The courts invalidated the immigration enforcement ordinance and it never went into effect. In the end, Hazleton was ordered to pay attorneys fees to plaintiffs of $1.4 million in attorneys fees. The city also paid a hefty amount in fees to anti-immigrant activist Kris Kobach,, who unsuccessfully defended the constitutionality of the ordinance.
On his gubernatorial campaign website, Berletta proclaimed that
"As mayor of Hazleton, Barletta learned firsthand that immigration is not solely a federal issue – it matters who holds office in states as well. He was the first mayor in the country to pass a local ordinance standing up against illegal immigration and was promptly sued by the ACLU. As a member of Congress, he fought every day to protect our borders and strengthen our laws. As governor, Barletta will maintain his strong stance against illegal immigration, as a public safety issue, as job protection for Pennsylvania workers, and as a public health issue."
As the campaign concluded, Lou Barletta was pushed by the Republican establishment. "That might sound odd. The former congressman was among Donald Trump’s earliest supporters in 2016 — at a time when most national Republicans either didn’t take him seriously or desperately sought to elect anyone else." Still, Barletta was seen by some Pennsylvania Republican Party leaders as their last best chance to stop front-runner Doug Mastriano. The fact that Barletta, an ardent anti-immigrant leader, is viewed as a less extreme "moderate" should be sobering.
Immigration Article of the Day: Who Is an American Soldier? Military Service and Membership in the Polity by Jin Niu
The military is one of the most powerful institutions to define membership in the American polity. Throughout this country’s history, noncitizens, immigrants, and outsiders have been called to serve in exchange for the privileges of citizenship and recognition. At its height, the idea that service constitutes citizenship—which this Note calls “constitutive service”—successfully transformed a group of “perpetual foreigners” to “citizens.” Until 1952, individuals of Asian descent were categorically excluded from the polity, a barrier that ultimately crumbled after Asian Americans rendered a long history of military service, beginning with the War of 1812, to the Civil War, then to the two World Wars. Yet, precisely because military service is so transformative, the United States over the past decade has imposed both formal and informal restrictions barring certain groups of people from serving, among them individuals who are gay, transgender, undocumented—and to a lesser extent—women and Muslim Americans. These restrictions are reminders that the United States continue to debate who is fit to be an “American,” and therefore, an “American soldier.”
Tuesday, May 17, 2022
Today's Toronto Star reports on a new lawsuit in Canada challenging the use of maximum-security jails for the purpose of immigration detention.
Although immigrants are held in these jails, they are not charged with a crime and civil detention is not supposed to be punitive. As Toronto Star reporter Brendan Kennedy quotes the lawyer for the detainees as saying: "No one who is not convicted of a crime or is not accused of a crime should be placed there."
Those interested in learning more about the jailing of immigrant detainees in Canada should definitely read this article by Stephanie J. Silverman and Petra Molnar: Everyday Injustices, published in the Refugee Survey Quarterly (March 2016), pp. 109-127.
The tragedy of the hate crimes this weekend in Buffalo, New York remains in the national spotlight. The killer apparently was an adherent of the "Great Replacement Theory" positing that elites are brining immigrants to the country to replace whites. The theory until this weekend was a staple of Fox News.
Kathleen Belew in the New York Times insightfully observes that
The great replacement is the latest incarnation of an old idea: The belief that elites are attempting to destroy the white race by overwhelming it with nonwhite groups and thinning them out with interbreeding until white people no longer exist. This idea is not, at its core, about any single threat, be it immigrants or people of color, but rather about the white race that it purports to protect. It's important to be cautious and not too credulous when reading the writings of assailants in attacks motived by race, but we should note an important pattern: their obsession with protecting white birthrates.
For decades, white power activists have worried about their status as a majority. They see a looming demographic crisis, and talk about when their community, town or the United States will no longer be majority white. Even when demographic change slows, this fear has not abated."
Belew is the author of Bring the War Home: The White Power Movement and Paramilitary America (2018).
Monday, May 16, 2022
Official Supreme Court Picture
As described in the syllabus to the slip opinion, the majority held that "Federal courts lack jurisdiction to review facts found as part of discretionary-relief proceedings under §1255 and the other provisions enumerated in §1252(a)(2)(B)(i)."
Justice Barrett delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Alito, and Kavanaugh joined. Justice Gorsuch filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined.
Justice Barrett began the majority opinion as follows:"
"Congress has comprehensively detailed the rules by which noncitizens may enter and live in the United States. When noncitizens violate those rules, Congress has provided procedures for their removal. At the same time, there is room for mercy: Congress has given the Attorney General power to grant relief from removal in certain circumstances. Federal courts have a very limited role to play in this process. With an exception for legal and constitutional questions, Congress has barred judicial review of the Attorney General’s decisions denying discretionary relief from removal. We must decide how far this bar extends -- specifically, whether it precludes judicial review of factual findings that underlie a denial of relief. It does. joined.
Justice Gorsuch began the dissent as follows:
"It is no secret that when processing applications, licenses, and permits the government sometimes makes mistakes. Often, they are small ones—a misspelled name, a misplaced application. But sometimes a bureaucratic mistake can have life-changing consequences. Our case is such a case. An immigrant to this country applied for legal residency. The government rejected his application. Allegedly, the government did so based on a glaring factual error. In circumstances like that, our law has long permitted individuals to petition a court to consider the question and correct any mistake. Not anymore. Today, the Court holds that a federal bureaucracy can make an obvious factual error, one that will result in an individual’s removal from this country, and nothing can be done about it. No court may even hear the case. It is a bold claim promising dire consequences for countless lawful immigrants. And it is such an unlikely assertion of raw administrative power that not even the agency that allegedly erred, nor any other arm of the Executive Branch, endorses it. Today’s majority acts on its own to shield the government from the embarrassment of having to correct even its most obvious errors. Respectfully, I dissent."
Recaps of the opinion will be posted when available.
UPDATE (May 17): Aline Barros on Voice of America reports on the Patel v. Garland decision.
Sunday, May 15, 2022
Thurs May 19 4pm EST. A virtual event that is part history lesson and part conversation, this program will feature three leading authors, scholars, and advocates: Dr. Erika Lee, Dr. Mae Ngai, and Helen Zia. Register here.
The Mellon Foundation organizers write: "Chinese immigrants and their descendants have shaped the United States, but their experiences are not always acknowledged as part of our collective history. Chinese American stories touch on every facet of the American experience: from those of immigrants who arrived at the US via the Angel Island Immigration Station in San Francisco; to builders of the transcontinental railroad connecting America’s east and west; drivers of urban development and access to public education; and subjects of discrimination and anti-Chinese legislation. In sharing these histories, we can cultivate a fuller understanding of our current moment and promote truthful narratives about Chinese American histories and Asian American experiences."
Erika D. Smith for the Los Angeles Times analyzes the events yesterday surrounding an 18-year-old white man going on a shooting spree in a market in a predominantly Black neighborhood in Buffalo, N.Y. Most of the victims were Black.10 people were killed and three others wounded.
Smith focuses on "the white supremacist explanation" for the shootings as suggested in "a manifesto that authorities say [the shooter] Gendron uploaded":
"He is an adherent of the so-called `great replacement' theory. According to authorities, [the shooter] felt compelled to drive roughly 200 miles to shoot innocent Black people indiscriminately with a high-powered rifle because white Americans are being `replaced' by people of color."
As Smith writes, the theory dominated California politics in the 1990s, a time when the voters passed the anti-immigrant milestone Proposition 187:
"That’s when Republicans, desperate to hold on to political power, were spreading fear and paranoia about millions of Mexican immigrants wanting — how dare them! — resources and rights, and the inevitable decline of the state’s white population. These were the formative years of Stephen Miller, the Santa Monica native who grew up to become President Trump’s repugnant, immigrant-hating senior advisor."
UPDATE May 16
The House GOP leadership has enabled white nationalism, white supremacy, and anti-semitism. History has taught us that what begins with words ends in far worse. @GOP leaders must renounce and reject these views and those who hold them.— Liz Cheney (@Liz_Cheney) May 16, 2022
Ashley Southall for the New York Times follows up on one of "New York’s worst subway attack in decades." Police have credited immigrants -- "an undocumented Mexican immigrant, a Lebanese student and an American-born Syrian who had fled civil war and left his parents behind" -- with helping to capture the man charges with opening fire inside an N train on April 12 in Brooklyn. They now seek relief from the U.S. immigration system as they seek "visas set aside for victims, witnesses and informants who help law enforcement, and [are] determining whether they can access alternatives like humanitarian parole or political asylum. . . . . Their lawyers say aiding their clients would help to rebuild trust among Muslims and immigrants after years of heightened hostility toward them under President Donald J. Trump."
More than a third of New York residents are immigrants, including roughly half a million undocumented people and 760,000 Muslim residents.
The Supreme Court’s 2012 decision, Arizona v. United States, turned back the most robust and brazen state regulation of immigration in modern times, striking down several provisions of Arizona’s omnibus enforcement law. Notably, the Court did not limit preemption inquiry to conflicts between the state law and congressional statutes. The Court also based its decision on the tension between the state law and executive branch enforcement policies. The landmark decision seemed to have settled the Court’s approach to immigration enforcement federalism. Yet, a scant eight years after Arizona, in Kansas v. Garcia, the Court upheld Kansas’ prosecutions of noncitizens who used stolen identities to procure employment in violation of federal immigration law. In so doing, the majority opinion took aim at Arizona’s central premise, rejecting the relevance of presidential enforcement in immigration preemption.
This Article provides an urgently needed reappraisal of immigration preemption in the wake of Kansas. My primary claim is that immigration preemption requires a framework that accounts for the diminishing relevance of formal law, the discretionary enforcement options available to federal authorities, and the inherent liabilities associated with unauthorized status. I argue that presidential enforcement practices – as a distillation of competing statutory values, congressional appropriations, executive policy preferences, and allocation of agency resources – limn federal policy for immigration preemption purposes. In defending this claim, this Article recasts immigration preemption decisions from the past fifty years, revealing a long-standing judicial concern for federal enforcement practices. Second, this Article critiques Kansas for discounting federal enforcement practices, and defends a return to Arizona-like jurisprudence. Finally, it argues that this approach will not unduly aggrandize judicial or executive power, or imbalance federal-state authority over criminal enforcement.
Saturday, May 14, 2022
After years of advocacy from the National Immigration Judges Association (here and here), immigration attorneys (from ABA and AILA), and scholars, Representatives Zoe Lofgren (D-CA), Jerrold Nadler (D-NY), and Hank Johnson (D-GA), introduced the Real Courts, Rule of Law Act of 2022 (H.R. 6577) that has passed House Judiciary Committee with a vote of 24-12. It will next move to the House floor.
An section-by-section analysis of the full text legislation is here.
Joe Biden continues to put America LAST by shipping pallets of baby formula to the southern border as American families face empty shelves.— Rep. Elise Stefanik (@RepStefanik) May 13, 2022
This is unacceptable.
American mothers and their babies shouldn’t suffer because of the #BidenBorderCrisis.https://t.co/zgWHz84lkZ
The White House, House Dems, & usual pedo grifters are so out of touch with the American people that rather than present ANY PLAN or urgency to address the nationwide baby formula crisis, they double down on sending pallets of formula to the southern border. Joe Biden has NO PLAN— Elise Stefanik (@EliseStefanik) May 13, 2022
[Note: The “usual pedo grifters,” who were unidentified, appeared to be a reference to a particularly outlandish QAnon conspiracy theory that an international ring of child sex traffickers is being operated by Democratic leaders.]
CBP had to issue a statement today explaining that it is has a legal responsibility to feed babies in custody because Republican lawmakers are expressing outrage that CBP had formula to feed babies in migrant detention centers pic.twitter.com/O8NbanfG77— Salvador Hernandez (@SalHernandez) May 12, 2022
The mid-term elections are just around the bend. Expect immigrants to be blamed for everything not going well in the nation. The latest: immigrants and the baby formula shortage.
In a joint statement issued earlier this week, Texas Governor Greg Abbott and the National Border Patrol Council accused President Biden of turning "a blind eye to parents across American who are facing a nationwide baby formula shortage." "While mothers and fathers stare at empty grocery store shelves in a panic, the Biden Administration is happy to provide baby formula to illegal immigrants coming across our southern border," they wrote.
Fox News reports on the growing number of Republican lawmakers and officials pushing the Biden administration on the extent to which undocumented immigrants in detention are bring provided baby formula when the nation has a shortage. Fox News explains that the U.S. government is legally obligated to care for and feed those in its custody and care, including immigrant children. That includes providing formula to infant children, and it is a standard requirement for government facilities to offer that to migrants -- including during the Trump administration.
Still, some Republicans are linking the border crisis to the issues with formula supply. In a letter to Health and Human Services and the Department of Homeland Security, Representative. Jim Banks (R-Ind.) noted that, during the 2019 "border crisis," the Border Patrol spent $230 million on "snacks, diapers and baby formula."
Linda Qui for the New York Times performed a fact check on the Republicans' charge:
"Republican lawmakers have misleadingly suggested that the Biden administration is sending baby formula to undocumented immigrants at the expense of American families amid a national shortage. . . . .
But it is inaccurate to suggest that President Biden is choosing to prioritize the needs of immigrant children over those of American children. Providing food — like formula — and water to migrant children detained at the border is required by a lawsuit settlement, and the Trump administration also adhered to that requirement. And it is unlikely that the amount of formula in stock at detention facilities would meaningfully ease the shortage."
Call for Proposals for the Fourth Annual Equality Law Scholars’ Forum, November 4-5, 2022 – Loyola Law School, Los Angeles
Building on the success of the Equality Law Scholars’ Forum held at UC Berkeley Law (2017), UC Davis Law (2018), and Boston University Law )2021), and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green (University of San Francisco, visiting Loyola Los Angeles 2022/23;) Angela Onwuachi-Willig (Boston University) and Leticia Saucedo (UC Davis)) announce the Fourth Annual Equality Law Scholars’ Forum to be held in Fall 2022.
This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas. We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, queer theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.
We will select five or six relatively junior scholars (untenured, newly tenured, or prospective professors) in the U.S. to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law. Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting. The Forum will take place all day Friday through lunch on Saturday. Participants are expected to attend the full Forum. The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.
This year’s Forum will be held on November 4-5, 2022, at Loyola Law School in Los Angeles.
Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by June 10, 2022.
Full drafts of papers must be available for circulation to participants by October 20, 2022.
We urge submission of proposals for drafts that will still be substantially in progress in October/November 2022 over drafts that will be in late-stage law review edits at that time.
Proposals should be submitted to: Leticia Saucedo, UC Davis School of Law, email@example.com. Electronic submissions via email are preferred.
Official White House Photo
Joel Rose for NPR reports on the Biden administration's struggle to end a number of immigration restrictions adopted by the Trump administration. In many lawsuits, Republican-led states challenged lifting immigration enforcement measures.
Immigrant advocates say these states are bringing the cases to conservative federal judges appointed by former President Trump. "To date, these states have brought no less than 17 lawsuits challenging President Biden's immigration moves," said Karen Tumlin, the founder of Justice Action Network, on a call this week with reporters. In effect, these states are using the courts to "keep a shadow Trump administration in office on immigration issues," she said.
The United States has granted reparations for a variety of historical injustices, from imprisonment of Japanese Americans during the Second World War to the Tuskegee syphilis experiments. Yet the nation has never considered reparations for 150 years of discriminatory immigration and citizenship policies that excluded millions based on race, gender, and political opinion—including some who are alive today. This article argues that the United States should atone for these past transgressions by granting “reparative citizenship” to those individuals and their descendants.
Providing access to U.S. citizenship—an economically, politically, and symbolically valuable status—is an appropriate remedy for immigration law’s historical injustices. Returning “stolen” citizenship could also serve an educative function, informing current citizens that the status they enjoy was denied to others on grounds now acknowledged to be both immoral and unconstitutional. Such an initiative would reaffirm constitutional commitments to equality generally, and equal access to citizenship in particular. Immigration officials could implement a narrow version of reparative citizenship unilaterally, by loosening evidentiary standards and liberally granting discretionary remedies to victims of past discriminatory policies. A more expansive version would require amending the Immigration and Nationality Act to provide a new pathway to citizenship for historically excluded groups.
Even if reparative citizenship does not become law, however, the concept brings a new perspective to stalled debates over immigration. Today, politicians ask whether undocumented immigrants and other would-be Americans should be allowed to “earn” their citizenship. Reparative citizenship flips the narrative, arguing that the nation owes legal status to those wrongfully excluded in the past.
Friday, May 13, 2022
As many have observed, the warm embrace of Ukrainian refugees in Europe has not been the experience of many others who have fled their homelands, such as Syrians fleeing horrific warfare in 2016/17. In an article on The Conversation ("A court case against migrant activists in Italy offers a reminder – not all refugees are welcome in Europe"), Eleanor Paynter, Cornell University explains how migrants are often not well received in Europe, despite a welcome of Ukrainian refugees.
Interim Dean Rose Cuison-Villazor, Director of the Immigration Law, Policy, and Justice (CILPJ) at Rutgers Law School, invites you to a May 17, 2022, between 12:30 and 2:30 PM (EST) (in person or via Zoom), symposium discussing New Jersey's Immigrant Trust Directive, which then Attorney General Gurbir Grewal issued in November 2018. The Immigrant Trust Directive limits certain voluntary assistance by state and local law enforcement in the enforcement of immigration law. CILPJ analyzed publicly disclosed records from more than 400 law enforcement agencies in New Jersey on their implementation of the Directive.
Overall, CILPJ affiliates will report that although the Immigrant Trust Directive has helped reduce ICE removals in New Jersey, parts of it have not been fully enforced. Greater and more consistent enforcement of the Immigrant Trust Directive is necessary to achieve its goals. (The report will be circulated on May 17).
New Jersey Assemblymember Raj Mukherji and immigrants' rights advocates will be participating as well. Lunch (up to 30 people) will be provided before the symposium begins.
The link to register is here.
Between 2017 and 2021, the Trump administration waged an unprecedented battle on U.S. asylum structures, procedure, and substantive law. Seeking to alter longstanding legal principles and practices in a host of areas, the former administration’s efforts to demolish asylum protections were systematic and comprehensive. The Immigration Policy Tracking Project catalogued no fewer than 96 discrete policy and regulatory changes that the former administration implemented to curtail access to asylum. While some of the administration’s actions, such as the decision to separate children from their parents at the border, were carried out in the open, many other actions were largely hidden from public view. In their totality, scholars have characterized those changes without much hyperbole as the end of asylum in the U.S., a veritable administrative wall to refugees.
Despite widespread initial optimism upon the election of a new President and some incremental steps, the Biden administration has yet to roll back the majority of these changes, let alone take steps to expand access to asylum or increase fairness in the system. Within his first month in office, President Biden promised to undertake a comprehensive review of the U.S. asylum system and to promulgate within 270 days regulations consistent with our international legal obligations; however, that deadline has come and gone without any proposed regulations or an explanation for their absence.
The contemporary U.S. asylum system was born through the robustly bipartisan 1980 Refugee Act. From that moment to the present, the nation has not witnessed such unmitigated antipathy towards refugees and asylum-seekers as during the Trump era. The toll paid by these changes, measured both in human lives and the erosion of our national values, is staggering. Yet, the fissures revealed by this unparalleled period of restriction of access to asylum can guide us both in understanding the extent of the present asylum crises and in knowing how best to move forward.
Through all its bluster about building a physical wall along the Southern border to keep refugees and other immigrants out, the Trump administration succeeded in erecting an administrative wall, preventing countless bona fide refugees from seeking or obtaining the protection for which they are eligible. To date, that wall has not been taken down. At best, Biden has tinkered with this barrier to refugees, and at worst, he has deliberately left some sections standing.
In this essay, we will summarize the status quo of this crisis. We will highlight warning signs that began to appear even before the Trump administration to understand how we reached this point. We will then propose solutions to chart a pathway forward, exploring strategies for implementing lasting reforms aimed at tearing down this administrative wall and replacing it with a more fair and welcoming system.
Thursday, May 12, 2022
On Monday, Russia's Victory Day, anti-war messages appeared on the Russian news site Lenta. Reportedly (because it turns out translating Russian isn't in my wheelhouse), the slogans included:
- "Vladimir Putin has turned into a pitiful dictator and paranoiac"
- “Russian authorities have banned journalists from talking about the negative”
- "Russia threatens to destroy the whole world"
- “War makes it easier to cover up economic failures"
- "Zelensky turned out to be cooler than Putin"
So where does the asylum real-o-thetical come in? With these few lines from the BBC: "two employees of the pro-Kremlin publication took responsibility for the 'performance', adding they were now outside Russia and had written that they would probably need jobs, lawyers and political asylum."
In the Guardian's coverage of this story, the journalists are identified by name and one told the paper: "Of course I am afraid... I am not ashamed to admit that. But I knew what I was doing, what the consequences could be.”