ImmigrationProf Blog

TRAC Finds Immigration Judges Working Faster, Still Can't Keep Up With New Cases

Immigration Court dispositions are reaching record highs. In FY 2023, Court closures are on pace to grow to nearly half a million cases disposed of by Immigration Judges. Case dispositions in FY 2022 were a record 47 percent higher than the previous high set during FY 2019. During the first four months of FY 2023 (Oct 2022-Jan 2023), Court closures reached 172,180, 85 percent higher than a comparable period during 2019.

However, if the pace of new Department of Homeland Security (DHS) filings in Immigration Court continues, FY 2023 may also reach a new record for incoming cases. During the same four months of FY 2023, a total of 329,380 Notices to Appear (NTAs) issued by the DHS were recorded in Immigration Court case-by-case records. Thus, the Court is on pace this year to receive nearly a million new NTAs seeking to deport immigrants.

TRAC's full report is available here: https://trac.syr.edu/reports/709/.

 

-AK

Why Not a Humanitarian Climate Visa?

The latest episode on the Changing Climate, Changing Migration podcast of the Migration Policy Institute features Ama Francis, a climate displacement strategist with the International Refugee Assistance Project and Columbia Law School’s Sabin Center for Climate Change Law.

One interesting idea advocated by Ama Francis on the podcast is a Humanitarian Climate visa for climate displaced people from climate vulnerable areas. The visa could have two-step eligibility that asks, first, if the person is from an area particularly prone to climate impact. Second, the visa could evaluate vulnerability. As Francis points out, there is an example of such a visa from Argentina, which in 2022 approved a new humanitarian visa to enable people displaced regionally by climate disasters (in Mexico, Central America, and the Caribbean) to access the visa.

You can listen to the full episode here.

IE

Immigration Article of the Day: The Immigration Shadow Docket by Faiza W. Sayed

The Immigration Article of the Day is "The Immigration Shadow Docket" by Faiza W. Sayed, published here, in the Northwestern University Law Review.

Here is the abstract:

Each year, the Board of Immigration Appeals (BIA)—the Justice Department’s appellate immigration agency that reviews decisions of immigration judges and decides the fate of thousands of noncitizens—issues about thirty published, precedential decisions. At present, these are the only decisions out of approximately 30,000 each year, that are readily available to the public and provide detailed reasoning for their conclusions. This is because most of the BIA’s decision-making happens on what this Article terms the “immigration shadow docket”—the tens of thousands of other decisions the BIA issues each year that are unpublished and nonprecedential. These shadow docket decisions are generally authored by a single BIA member and consist overwhelmingly of brief orders and summary affirmances. This Article demonstrates the harms of shadow docket decision-making, including the creation of “secret law” that is accessible to the government but largely inaccessible to the public. Moreover, this shadow docket produces inconsistent outcomes where one noncitizen’s removal order is affirmed while another noncitizen’s removal order is reversed—even though the deciding legal issues were identical. A 2022 settlement provides the public greater access to some unpublished BIA decisions, but it ultimately falls far short of remedying the transparency and accessibility concerns raised by the immigration shadow docket.

The BIA’s use of nonprecedential, unpublished decisions to dispose of virtually all cases also presents serious concerns for the development of immigration law. Because the BIA is the final arbiter of most immigration cases, it has a responsibility to provide guidance as to the meaning of our complicated immigration laws and to ensure uniformity in the application of immigration law across the nation. By publishing only 0.001% of its decisions each year, the BIA has all but abandoned that duty. This dereliction likely contributes to well-documented disparities in the application of immigration law by immigration adjudicators and the inefficiency of the immigration system that leaves noncitizens in protracted states of limbo and prolonged detention. This Article advances principles for reforms to increase transparency and fairness at the BIA, improve the quality, accuracy and political accountability of its decisions, and ensure justice for the nearly two million noncitizens currently in our immigration court system.

IE

Immigration Article of the Day: The End of California’s Anti-Asian Alien Land Law: A Case Study in Reparations and Transitional Justice

The Immigration Article of the Day is: "The End of California’s Anti-Asian Alien Land Law: A Case Study in Reparations and Transitional Justice" by Gabriel "Jack" Chin and Anna Ratner, published in 20 Asian American Law Journal 17 (2022) and available on SSRN.

Here is the abstract:

For nearly a century, California law embodied a rabid anti-Asian policy, which included school segregation, discriminatory law enforcement, a prohibition on marriage with Whites, denial of voting rights, and imposition of many other hardships. The Alien Land Law was a California innovation, copied in over a dozen other states. The Alien Land Law, targeting Japanese but applying to Chinese, Koreans, South Asians, and others, denied the right to own land to noncitizens who were racially ineligible to naturalize, that is, who were not White or Black. After World War II, California’s policy abruptly reversed. Years before Brown v. Board of Education, California courts became leaders in ending Jim Crow. In 1951, the California legislature voluntarily voted to pay reparations to people whose land had been escheated under the Alien Land Law. This article describes the enactment and effect of the reparations laws. It also describes the surprisingly benevolent treatment by courts of lawsuits undoing the secret trusts and other arrangements for land ownership intended to evade the Alien Land Law. But ultimately, the Alien Land Law precedent may be melancholy. California has not paid reparations to other groups who also have conclusive claims of mistreatment. Reparations in part were driven by geopolitical concerns arising from the Cold War and the hot war in Korea. In addition, anti-Asian immigration policy had succeeded in halting Japanese and other Asian immigration to the United States. Accordingly, one explanation for this remarkable act was that there was room for generosity to a handful of landowners with no concern that the overall racial arrangement might be compromised.

IE

BIA's Reading Room for Unpublished Decisions is LIVE!

Check it out, the BIA's reading room for unpublished decisions is now live. Here is the link: https://foia.eoir.justice.gov/app/ReadingRoom.aspx. And here's the NYLAG press release:

Historic Settlement Levels the Legal Playing Field for Immigrant Advocates 

 

Immigrants, Immigration Lawyers Win Access to Secret Case Law 

 

NEW YORK – A federal district court in New York on Wednesday evening ordered the U.S. Board of Immigration Appeals to establish an online library of its unpublished opinions – the result of a settlement between the New York Legal Assistance Group (NYLAG) and the U.S. Department of Justice. By giving immigrants and their lawyers full access to the Board’s opinions, the settlement will allow them to fight removal and other adverse actions with the same knowledge of case law that attorneys representing the government already have. Public Citizen Litigation Group served as lead counsel for NYLAG in the case, along with NYLAG’s own lawyers. 

“This historic settlement will change the practice of immigration law in this country,” said Beth Goldman, NYLAG president and attorney-in-charge. “After our crucial victory in the Second Circuit, the Board has agreed to stop keeping its decisions secret – a practice that, for years, has put immigrants at an unfair disadvantage when asserting their rights in court. Opening up these opinions to the public will finally help even the playing field between immigration advocates and their adversaries, and it will allow the dedicated immigration practitioners at NYLAG and around the country to do their best work advocating for their clients. We are pleased that the Board agreed to make this move toward transparency without the need for further litigation.” 

The Board of Immigration Appeals is the administrative body within the U.S. Department of Justice (DOJ) that adjudicates appeals from decisions made by immigration judges. Most of the Board’s tens of thousands of decisions each year are kept secret from the public. Only a handful of opinions are made publicly available online, and a small number of additional opinions are available in hard copy at a law library in Falls Church, Virginia. 

The Freedom of Information Act (FOIA) requires that agencies make all their opinions and orders available to the public over the internet, but the Board of Immigration Appeals has ignored this requirement for years and designated almost all the opinions it issues in immigration cases as unpublished. The case arose when NYLAG, which provides free legal services to immigrants in New York, requested that the Board post all of its opinions in immigration cases in its electronic reading room. When the request was denied, NYLAG and Public Citizen Litigation Group filed suit to require the Board to comply with the law.  

Under the settlement approved Wednesday, the Board will be required to place nearly all its opinions into an online reading room, accessible to all in perpetuity, ensuring that immigration advocates will have access to these opinions within six months of when they are issued. The Board also must post its decisions dating back to 2017 as well as some from 2016. Posting will begin in October and will be phased in over several years. The settlement ensures that NYLAG and Public Citizen will be able to monitor the Board’s compliance and, if problems arise, seek the help of the court.  

Public Citizen’s Scott Nelson, the lead attorney for NYLAG in the case, added: “This case is a tremendous advance for freedom of information in three ways. First, to get this far, we had to win a landmark decision in the Second Circuit Court of Appeals recognizing that people can sue under FOIA to force agencies to comply with their obligation to publish records online. Second, the online library that this case will create will be of great use to immigrants and their lawyers. Third, this settlement will help DOJ and its components serve as a model of FOIA compliance, as agencies devoted to the rule of law should be.” 

-KitJ

Immigration Article of the Day: Ten Years of Democratizing Data: Privileging Facts, Refuting Misconceptions and Examining Missed Opportunities (CMS)

Ten Years of Democratizing Data: Privileging Facts, Refuting Misconceptions and Examining Missed Opportunities is a new report from the Center for Migration Studies authored by Donald Kerwin and Robert Warren. Here's the abstract:

The Center for Migration Studies of New York (CMS) initiated its “Democratizing Data” project in 2013 to make detailed demographic information widely available on the US undocumented, eligible to naturalize, and other non-citizen populations. The paper begins by outlining top-line findings and themes from the more than 30 CMS studies under this project. It then examines and refutes four persistent misconceptions that have inhibited public understanding and needed policy change: (1) migrants never leave the United States; (2) most undocumented migrants arrive by illegally crossing the US-Mexico border; (3) each Border Patrol apprehension translates into a new undocumented resident; and (4) immigrants are less skilled than US-born workers. The paper then offers new analyses in support of select policy recommendations drawn from a decade of democratizing data. It concludes with a short reflection and a case study on the failure of data, evidence-based policy ideas, and national ideals to translate into necessary reform.

-KitJ

Emerging Research on Canada's Detention System

A report by Olamide Olaniyan, titled "An Immigration Detention System That Makes No Sense," and appearing in The Tyee, features Efrat Arbel and Molly Joeck discussing why Canada’s treatment of migrants needs reform.

In the article, Professor Arbel describes an important new research project:

“The goal of this project is really to highlight those experiences that too often are left unknown and unexamined, because they take place in the so-called black box,” she said. “To bring these stories out of the darkness and into the light in order to demonstrate what I view to be fundamental problems with the legal regime as it is structured.”

The movement against immigration detention got a major win in July 2022 when the B.C. government announced it would be ending its arrangement with the Canada Border Services Agency that allowed immigration detainees to be kept in provincial jails. Arbel called the announcement “a moment of real hope in a regime that does not create many opportunities for hope.”

IE

U.S. Immigrants and Emigrants

WaPo and NYT have competing stories of great interest today.

The NYT reports that nearly 1 million migrants became U.S. citizens in 2022: a 15-year high. There are another 670,000 naturalization applications pending! The NYT article also clued me into changes coming w/r/t naturalization that hadn't been on my radar. Did you know that USCIS is redesigning the oral portion of the natz test? They plan to ask applicants "to describe three photographs of everyday activities, the weather or food" with the goal of testing "ordinary use of English."

Meanwhile, WaPo has an absolutely fascinating piece about U.S. emigration -- looking at where Americans land around the globe when the choose to leave this country. Do you know the largest receiving country? Go ahead. Take a moment to think. Yup, it's Mexico. And most of the Americans living in Mexico are children of Mexican citizens, so-called "accidental Americans." (Not sure how I feel about that particular moniker.) Where do others go? "Canada, the United Kingdom, Germany, Israel, Australia and other advanced economies."

The WaPo article also has this wonderful nugget -- did you know that a number of Americans seek asylum overseas each year? How many, do you think? Turns out the number for 2022 was 426, according to the U.N. Refugee Agency. (They also headed for Germany, the U.K. and Canada.)

Data regarding emigration is somewhat sketchy. As WaPo notes "The U.S. government does not keep a close count of Americans who have left the country; few governments do." The data cited in the article comes from a variety of sources -- researchers and international organizations.

-KitJ

Welcoming America in San Jose

Welcoming America convenes its interactive workshop from April 26-28 in San José, California. 

There will be 500 inclusion practitioners from around the world for networking opportunities, deep dive sessions, and powerful plenary presentations from thought leaders in the DEI space, and of course, our legendary city tours. 

A description of past Welcoming Interactives is here: 2022 recap. Sign-up and registration for the 2023 Welcome Interactive is here.

MHC

 

American or US citizen: Stanford language guide aims for inclusivity, ignites public debate

Stanford University's IT department released an internal guidance on the use of harmful language. Among other terms, they recommend the term "US citizen" instead of "American." Their reasoning is that the term American is overinclusive, and it overlooks Canadians, Central Americans, South Americans and other countries who are implied to be less important than the United States of America. 

Conservative media outlets, like the Washington Times, have decried the Stanford language guide as bending to wokeness and the specific guidance on "American" to be unpatriotic. Stanford has said that banning language is not their intent and clarified for the broader public that the guide is not a ban on language, nor is it endorsed by the university writ large. Steve Gallagher, Stanford chief information officer, said 

 “We have particularly heard concerns about the guide’s treatment of the term ‘American.’ We understand and appreciate those concerns. To be very clear, not only is the use of the term ‘American’ not banned at Stanford, it is absolutely welcomed.”

He continued by clarifying that the intent of this specific entry “was to provide perspective on how the term may be imprecise in some specific uses, and to show that in some cases the alternate term ‘U.S. citizen’ may be more precise and appropriate.”

Nevertheless, the public debate raises the question of whether US citizen is an inclusive term? Many Immprofs consider immigrants to be social or political members of communities, lending the term "American" an inclusive valence by recognizing identification with a community, not withstanding legal status. The status designation of "US citizen", in contrast, is the exclusive one, especially considering that legal designations of undocumented status can be inconclusive. In a related vein, critical race theorists express skepticism toward overemphasizing formal citizenship. Rose Cuison Villazor, in Rejecting Citizenship, elaborates on the point as a response to my book, Pursuing Citizenship in the Enforcement Era.  It is an issue of importance and one that I wrestle with in a new article, Colorblind Nationalism and the Limits of Citizenship, while trying to envision alternatives to the binary legal status imprinted on policies surrounding membership and belonging in America. In short, the language and terms of belonging for immigrants is complex terrain that extends beyond the point-counterpoint debates surrounding the Stanford language guide.

MHC

A Guide to Obtaining Detention Records: New Publication from the American Immigration Council and the Black Alliance for Just Immigration

The American Immigration Council and the Black Alliance for Just Immigration (BAJI) have published a new guide to help individuals who have been detained by immigration agencies and their advocates request records about their detention.

The guide walks individuals through the detention process and identifies the agencies that maintain documents and information about an individual’s detention, including oversight components of DHS that receive complaints from detained individuals.

This step-by-step guide is intended to help demystify the process of getting documents from federal agencies under FOIA for people who have been detained and answer some of the questions inherent in the process.

IE

Podcast: Belonging in Unceded Territory

ImmigrationProf Blog readers in the US may be interested in the intersection of migration, settler colonialism and indigeneity. Leading scholars have collaborated on a Global Migration Podcast episode featuring a Vancouver-based research collaboration, Belonging in Unceded Territory. You can access the episode here, where you will also find links to Spotify or other preferred listening platforms.

MHC (h/t Antje Ellermann, Founding Director Centre for Migration Studies)

Caught in the Web: The Role of Transnational Data Sharing in the U.S. Immigration System

Today the National Immigrant Justice Center (NIJC) released a new policy report on the role of foreign data sharing programs in the U.S. immigration system.

“Caught in the Web” presents the result of an in-depth investigation into the ways that data sharing between the United States and foreign governments interacts with immigration enforcement programs.

Surveying NIJC’s legal teams and legal service providers throughout the country, the investigation reveals how immigration decisionmakers routinely rely on faulty information to determine the fate of immigrants seeking safety or immigration status in the United States.

The policy brief also highlights people directly impacted by foreign data sharing, including 11-year-old Felipe, who CBP separated from his parents at the border in May and who still remains separated today. 

IE

Immigration Article of the Day: How States Can Play a Role in Abolishing Immigration Prisons by Yuri Han and Katrina Landeta

The Immigration Article of the Day is How States Can Play a Role in Abolishing Immigration Prisons by Yuri Han and Katrina Landeta, published in volume 38 of the Chicanx-Latinx Law Review and available here.

Here is the abstract:

On October 11, 2019, California Governor Gavin Newsom signed the strictest ban on private prisons in the country. California Assembly Bill (AB) 32 would phase out all privately-run prisons, including immigration prisons, by 2028. As the first prison abolition legislation of its kind in the United States, AB 32 brought to light the mounting concern regarding the cruel nature of immigrant detention as well as increasing outrage over serious abuses at for-profit prisons.

This article is the first to explore this landmark legislation and analyze its legal and policy implications in the movement for immigrant prison abolition. After setting forth a brief history on the growth of private detention, this article discusses AB 32’s pathway through the courts. The article concludes by arguing that AB 32 can serve as an important illustration for other states where federal action has fallen short. While in 2021 President Biden signed an executive order to end Department of Justice contracts with private prisons for criminal detention, the order did not apply to immigration detention. States can adopt legislation like AB 32 to play a role in eradicating immigrant prisons across the country.

IE

Portrait of Asian Americans in the Legal Profession 2.0

The National Asian Pacific American Bar Association (NAPABA), in collaboration with the American Bar Foundation, recently released  A Portrait of Asian Americans in the Law 2.0: Identity and Action in Challenging Times (Portrait Project 2.0). Five years ago, I was very moved by the original Portrait Project report and worked with the Asian Pacific American Bar Association and Asian Pacific American Law Students Association in Colorado to bring the primary author, California Supreme Court Justice Goodwin Liu, to Colorado during a snowstorm. This follow-up study is just as good and even more necessary.  

The updated report (77 pages) combines detailed analysis of employment data in various legal sectors to gain insight into Asian American career advancement and political participation. It is based on interviews, focus groups, and a national survey completed by over 700 Asian American lawyers. 

Some of the key findings: 

• Asian American attorneys are more engaged with social and political issues than in 2016. Those seeking to change their legal practice areas ranked a desire to advance issues important to them among their most significant reasons for doing so. (This was previously ranked among the least significant reasons). 
• Nearly half of Asian American attorneys (47% of survey respondents) became more involved in community organizations, protests, or other forms of advocacy specifically on behalf of Asian Americans since March 2020. 
• Although there is underrepresentation of Asian American attorneys in the top ranks of the legal progression, there has been progress in the appointment of federal judges (from 3.4% to 6%) and as general counsel. While Asian Americans are the largest minority group at major law firms, they have the lowest ratio of partners to associates and remain underrepresented among law clerks, law professors, state court judges, and state and federal prosecutors.

Read the full report here.

MHC

RICE launch event on belonging

On Friday, November 18 (11:20-12:20pm), the Center for Race, Immigration, Citizenship and Equality (RICE) at the University of California Hastings College of Law will offer a panel discussion that will focus on the theme of “othering and belonging.” It will feature scholars whose research and teaching illuminate the value of taking an intersectional, interdisciplinary, or comparative approach to the topic, with an emphasis on racial equality and integration. Speakers include: Professor Irene Bloemraad, UC Berkeley Interdisciplinary Migration Initiative; Professor Raquel Aldana, UC Davis Global Migration Center and Davis Law; Professor Hiroshi Motomura from UCLA Law and the Center for Immigration Law & Policy; and Professor Tomas Jimenez, Stanford University Sociology and Center for Comparative Race and Ethnicity / Immigration Policy Lab. The event will be open to the UC Hastings community inperson; it will be livestreamed for the broader immprof community.

This event will serve as the launch for the center, which is established by ImmigProf blogger Prof. Ming H. Chen. Stay tuned for more events, including a spring 2023 colloquium series.

RSVP here: RICE Conference | UC Hastings Law | San Francisco

 

Immigration Article of the Day: The Immigration Implications of Presidential Pot Pardons by Jason A. Cade

The Immigration Article of the Day is The Immigration Implications of Presidential Pot Pardons by Jason A. Cade, just posted on SSRN. Here is the abstract:

This essay examines the immigration implications of President Joe Biden's Proclamation on October 6, 2022, which pardons most federal and D.C. offenders—including lawful permanent residents—who have committed the offense of simple marijuana possession. When used this way, the Art. II clemency power serves a communitarian, forward-looking function—in this case by giving legal effect to a societal recalibration of what constitutes appropriate punishment for marijuana possession and a growing awareness of the racially disproportionate impact that arrests and prosecutions for this crime tend to produce.

With respect to the impact of pardons on efforts to avoid deportation or to gain lawful admission to the United States, however, ambiguities lurking in the Immigration & Nationality Act (INA) raise unsettled complications. Through most of the nation’s history, both gubernatorial and presidential pardons effectively negated the effect of the pardoned crime for immigration purposes. Toward the end of the twentieth century, however, Congress muddied the waters by amending key provisions of the INA. These amendments, in turn, led the Board of Immigration Appeals (BIA) to infer legislative intent to make pardons ineffective in the immigration context, except with respect to four specifically-enumerated removal categories—which do not included controlled substance offenses. While the Supreme Court has not yet assessed these rulings, lower federal courts have deferred to the agency's interpretation.

All of the immigrant pardon cases to reach the courts thus far, however, have concerned state prosecutions and gubernatorial pardons, such that governing federal law has been given preemptive effect. Presidential pardons, on the other hand, raise a specialized separation-of-powers problem in light of long-undisturbed precedent interpreting the Article II pardon power as immune from congressional constraint. According to the analysis I offer, a lawful permanent resident with a pardoned federal marijuana possession conviction facing deportation should ultimately prevail in light of the broad scope of the presidential pardon power. But the constitutional question need not be fully resolved. At the end of the day, I argue, there are reasons to doubt Congress in fact intended what the BIA has inferred, and a reasonable alternative construction would give effect to President Biden's drug-possession pardons while prudently avoiding the constitutional danger zone animated by the BIA’s statutory interpretation.

The essay concludes with a set of considerations to which policymakers should attend as they contemplate the adoption of reformatory programs that impact immigration rules. Although the Biden Proclamation too-tightly cabins which noncitizens fall within its reach, it is a step in the right directions and may well foreshadow additional reforms, including future moves by legislative and executive branches at both federal and state levels.

IE

NEW GAO REPORT on Immigration Detention

Yesterday the GAO issued a new report titled Immigration Detention: Actions Needed to Collect Consistent Information for Segregated Housing Oversight. Here is a summary of some of their findings:

"U.S. Immigration and Customs Enforcement can, under certain circumstances, place detained noncitizens in segregated housing—one to two person cells separate from the general population. There were 14,581 such placements from FYs 2017-2021.

ICE oversees segregated housing, and also monitors placements involving vulnerable persons—e.g., those with medical or mental health conditions. But it relies on reports and data that don't always have enough detail about the circumstances leading to a placement, or indicate that a placed person is vulnerable.

As a result, ICE can't adequately oversee segregated housing."

Example of a Segregated Housing Cell in an ICE Facility included in the GAO report:

IE

Celebrating Richard Alba's immigrant assimilation theories

CUNY Graduate Center has organized a festschrift to celebrate the scholarly legacy of Richard Alba. Alba is a distinguished professor of the sociology of immigration. His scholarship on "assimilation theory" laid a foundation for understanding the contemporary, multi-racial era of immigration, with studies in America, France and Germany. His seminal texts on assimilation theory (written with Victor Nee), Remaking the American Mainstream (2003) and Rethinking Assimilation Theory for a New Era of Immigration won the Thomas & Znaniecki Award of the American Sociological Association and the Eastern Sociological Society’s Mirra Komarovsky Award among others. They are among the most-cited work in sociology writ large and spawned a generation of sociologists writing about immigrant incorporation and including segmented assimilation, many of whom will be speaking at the CUNY conference on November 18, 2022.

MHC

 

TRAC Updates Immigration Judges Reports with Data and New Design

The Transaction Records Access Clearinghouse (TRAC) at Syracuse University updated their Immigration Judge reports today with new data and a new design that is easier to navigate, includes cleaner graphics, and includes significant revisions to individual judge text to more accurately reflect factors involved in asylum outcomes.

The reports are available to the public here: https://trac.syr.edu/immigration/reports/judgereports/

- Austin Kocher