ImmigrationProf Blog

Immigration Article of the Day: Refugee Detention as Constructive Refoulement by Shana Tabak

The Immigration Article of the Day is Refugee Detention as Constructive Refoulement by Shana Tabak, forthcoming in the Yale Journal of International Law and available on SSRN.

Here is the abstract:

The most fundamental obligation that states owe to refugees under the 1951 United Nations Convention Relating to the Status of Refugees is the commitment of non-refoulement. This commitment to “not force back” a refugee to a country where she may face serious harm to her life or liberty demands that states interrogate whether their treatment of refugees comports with their legal obligations toward these individuals. One urgent site for inquiry is the widespread practice of immigration detention. The practice of immigration detention raises human rights concerns, including the stripping of due process, the lack of individualized assessment, and the arbitrary deprivation of liberty.

In the United States, the detention of refugees presents an apparent contradiction: the state posture is one of respect for rule of law and its legal obligation of non-refoulement, yet perversely, the country detains refugees in such intolerable conditions and with such limited access to legal counsel that their chances at winning asylum are slim to none. The result is a pandemic of asylum denials and deportations of asylum-seekers. This Article identifies and describes this dissonance and offers a potential framework for thinking about a legal remedy.

Drawing on an analysis of the human rights violations in the United States’ practice of migrant detention, this Article presents a framework for a legal concept as yet untested in U.S. case law: constructive refoulement. Constructive refoulement arises when a state orchestrates material conditions so intolerable for an asylum-seeker that she has no choice but to return to the country from which she fled. This Article characterizes the refugee detention regime in the United States as anarchic, violative of due process, and morally corrupt. Such a characterization also demonstrates that the refugee detention regime breaches international and domestic law obligations. Ultimately, the United States’ practice of detaining refugees frustrates the intent of asylum-seekers to pursue protection and thereby amounts to constructive refoulement in violation of international law.

IE

Immigration Article of the Day: Reversing Racist Precedent by Ahilan Arulanantham

The Immigration Article of the Day is Reversing Racist Precedent by Ahilan Arulanantham, forthcoming in the Georgetown Law Journal and available here in SSRN.

Here is the abstract:

The Supreme Court has long read the Constitution to prohibit state action motivated by racial animus. Courts have applied that prohibition to various forms of governmental decisionmaking, from the individual decisions of judicial officers to constitutional amendments enacted by states. Yet they have not applied it to their own prior precedent. No court, including the Supreme Court, has ever held that courts must disregard prior court decisions that were themselves motivated by racial animus on the ground that such decisions violate the Constitution’s anti-discrimination constraint.

I first noticed that strange omission while litigating immigration cases against the federal government, several of which involved race discrimination claims. Time and time again I found government attorneys relying on cases from the Chinese Exclusion Era to support their positions, despite the fact that those cases are full of racist reasoning and rhetoric.

Courts often accepted those arguments, occasionally even citing the Chinese Exclusion Era cases themselves.

In this Article, I identify racist precedent as a key feature of our legal system that furthers racial injustice. I argue that the Constitution’s prohibition on invidious race discrimination should apply to court decisions by stripping such decisions of precedential force. Courts should apply that principle by creating a new exception in stare decisis doctrine: cases should be denied precedential force if they were motivated by racial animus. I ground this argument in anti-discrimination caselaw and show how it could operate alongside extant stare decisis doctrine. I then respond to various objections. Finally, I illustrate how the approach would work in detail by applying it to two Chinese Exclusion Era cases that remain foundational to contemporary constitutional immigration law.

Applying the Constitution’s prohibition on invidious race discrimination to prior precedent would dramatically alter the legal landscape in areas like immigration law, where the governing doctrine rests on cases infected by racism. It would give lawyers a reason, and judges an obligation, to examine the potentially racist origins of many rules that would otherwise be left undisturbed. If embraced fully, this doctrinal shift could disrupt a foundational source of structural racism in our legal system—the continued force of racist precedents.

IE

Green Card Game

David Biers of the Cato Institute created a "game" to illustrate the perils of migrating to the US... legally.

Try it here.

MHC

The Changing Make-Up of Immigration Court Cases Now That Title 42 Has Ended

According to a new report by TRAC, the end of Title 42 coincides twith an increase in new Mexican and Central American cases in court alongside a decline in cases from South America and elsewhere.

A large influx of new Immigration Court cases was widely expected after the termination on May 11, 2023, of Title 42 -- a public health policy that allowed individuals arriving at the U.S.-Mexico border to be immediately expelled without a hearing. According to the latest data released by the Immigration Courts, this influx did not occur.

The largest segment (45%) of immigrants with new Immigration Court cases towards the end of Title 42 came from South America. Individuals from Venezuela and Colombia made up three out of every ten South Americans. The other countries with the largest numbers were Peru, Ecuador, and Brazil.

The next largest segment (22%) was from countries outside of North and South America. Here immigrants from India, Russia, and China were most numerous. These were followed by immigrants from Mauritania, Uzbekistan, and Turkey, each with closely similar numbers.

The remaining third came from countries north of South America. Leading the list were Central American countries accounting for 13 percent, followed closely by Caribbean nations with 11 percent. The rest were Mexicans who made up 8.5 percent. After Mexicans, the next largest nationalities were Haitians, followed by Nicaraguans, Hondurans and Guatemalans.

Read the report here: https://trac.syr.edu/reports/727/

- Austin K.

Directory of Migration Research Institutes

 

The global Directory of Migration Research Institutions (DMRI) provides a comprehensive mapping of dedicated centres and institutes that pool resources for training researchers with special focuses on migration in the period between 1945 and 2020, with information on their location, year of establishment, the size, the type, and the main subjects of analysis.

Yet to be added are the research institutes Center for Race, Immigration, Citizenship, and Equality or RICE at UC Law (led by ImmigrationProf Bloggers Ming H. Chen) and the UC Davis Global Migration Center (led by ImmigrationProf Blogger Kevin Johnson). Still it's an amazing resource and encouraging to see how migration studies have expanded globally!

MHC

New Report and Webinar on Immigration Court Backlog from the Center for Migration Studies

On June 6, 2023 the Center for Migration Studies of NY (CMS) hosted a webinar on a new paper The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog.y The webinar features the authors of the report, Donald Kerwin and Evin Millet, as well as other experts including immigrationprof Richard Boswell and Mimi Tasankov, President of the National Association of Immigration Judges.

The paper and accompanying webinar highlight systemic problems in the US immigration system that have caused and sustained the backlog, and offers recommendations for reversing the backlog.

IE

 

Global Immigration Backlash

This summer, there was more than one boat tragedy. There was the tragic sinking of a fishing boat carrying up to 750 migrants near Greece.  The boat was carrying Pakistani, Syrian, Egyptian, and Palestinian refugees and migrants. Barely 100 had been rescued alive. The news was shrouded in mystery due to the uncertain involvement of the Greek coast guard and then further eclipsed by media coverage of a submarine carrying wealthy sea adventurers to see the shipwrecked Titanic.

It remains uncertain exactly how and why the migrant ship capsized and whether the Greek coast guard acted neglectfully. But their troubles are part of a larger tide of anti-immigrant sentiment sweeping the globe. Migrant vessels are sometimes left to chance survival rather than assisted in accordinance with international obligations, according to UN Special Envoy for thte Central Mediterranean Vincent Cochetel. Others are provided food, water, life jackets and fuel precisely so they will stay afloat long enough to drift away from the nearest coast and left to the care of countries further downstream, often Italy.  These "pushbacks" mean to avoid the legal obligation to rescue and process aslyum requests by forcing refugees out of their territory. The migrants, and the accompanying legal obligations, are foisted onto someone else. According to the Berlin-based European Center for Constitutional and Human Rights (ECCHR), pushbacks are a violation of international law and European regulations. (Greek Prime Minister Kyriakos Mitsotakis denies that his country engages in pushbacks.)

Outside of pushbacks at sea, many countries have declined to absorb migrants since the 2015 refugee crisis -- both in Europe (where 1 million have entered) and in the US.  Unrest in Syria is one reason for the great migration but, all told, the scale of global migration is at the highest levels that it's been in more than one hundred years. The New York Times has a country-by-country analysis showing that the foreign-born share of the population has progressively risen in several wealthy western countries: 30% in Australia and 13-15% in the US, Spain, UK, Netherlands, and France.

While some of these countries have a tradition of receiving and even welcoming immigrants, the general population in these countries criticize the migrant flows. They say the volume of migration places strain on the welfare state. Even less popular is irregular migration deemed to disrespect local laws, disrupt the workforce, and interfere with customary ways of life. Government responses have roiled and divided the countries, as illustrated dramatically with the recent collapse of the Netherlands government amid discord and the hateful rhetoric of right-wing politicians in France (Marine Le Pen), Spain, and the US (Donald Trump).

Politicians on the left have waffled in their response to migration, struggling to project the appearance of openness while also promising the keep migration levels manageable to appease workers in their parties or appeal to skeptical voters from other parties. This is one way of understanding the shifting posture of Democratic New York City Mayor Eric Adams in response to the diversion of migrants to NYC and the vacillation of President Biden toward asylees: whether motivated by pragmatics, politics, or hate, they are playing into a greater global backlash.

MHC

Human Rights First Publishes a Report on the Biden Asylum Ban

Human Rights First released a new report by Eleanor Acer, Christina Asencio, and Rebecca Gendelman this week: “Refugee Protection Travesty: Biden Asylum Ban Endangers and Punishes At-Risk Asylum Seekers."

The report analyzes the ways in which President Biden administration’s asylum ban violates basic principles of human rights laws and puts lives at risk.

Key findings of the report include:

• The asylum ban endangers the lives of thousands of at-risk asylum-seeking children, families, and adults waiting in Mexico for limited CBP One appointments
• The asylum ban rigs the expedited removal and credible fear processes against people seeking asylum, with pass rates plummeting by 45%
• People waiting to seek asylum overwhelmingly did not know about the Biden asylum ban nor understand the penalties it inflicts, contrary to government assertions touting the ban as a key factor in lowered border apprehension rates
• People seeking asylum face unlawful, accompanying barriers to access U.S. ports of entry including limited and inequitable access to CBP One appointments and actions by U.S. Customs and Border Protection (CBP) and Mexican authorities to illegally turn away or meter people without appointments.
• Black, Indigenous, LGBTQ+ people, and those without financial resources face particular difficulties, dangers, and disparities when seeking asylum under the new process established by the Biden asylum ban
• People waiting to seek asylum are forced to endure inhumane standards of shelter, safety, water, sanitation, and hygiene even in extreme summer heat.

The report recommends, among other measures, that the Biden administration immediately end and rescind its asylum ban, which received widespread opposition and which U.S. agencies have stated is a “temporary” measure and subject to review.

IE

How much work are asylum cases? New AILA research says 50-75 hours of attorneys' time.

New in-depth research by the American Immigration Lawyers Association (AILA) provides original insight into the key components of asylum cases and, more importantly, how much time a competent attorney needs to complete an asylum case.

Their research says that a competent attorney requires around 50-75 hours of time spread out over a few months to adequately prepare an asylum case, although complicating factors add considerable time.

The new report is available online on AILA's website here. To learn more about the report and the implications for policy, AILA is hosting a virtual public discussion on Friday, July 14 at 1:30 PM. Register here to join.

- Austin Kocher

How fine dining in Europe and the US came to exclude immigrant cuisine and how social media is pushing back – podcast

 

In this episode of The Conversation Weekly, three experts who study food culture and fine dining talk about the perceptions and definitions of “good food.” They explore how food trends are deeply tied to immigration, how the history of Western culinary techniques limits the creativity and authenticity of modern restaurants and how social media compares with the Michelin Guide as a tool in the quest for good food:

"The history of restaurants, food and, especially, fine dining, is deeply tied to the history of immigration to the U.S. and French cultural power in the early 20th century. Not surprisingly, the story that leads to Yelp and Anthony Bourdain is not without its share of racism that the modern food world and its tastemakers are still grappling with today."

KJ

WaPo Stats on International Marriage Rates

WaPo's article The states where you’re most (and least) likely to marry a local includes fascinating data about not only interstate but also international marriages in the United States.

Here are some of the numbers:

• 12.4% of Americans marry someone from another country. That's up from a low of 6.3% in 1980. We last reached those heights, nearly, in 1900 when 12.1% of Americans married someone from another country.
• About a fifth of international marriages involve a partner from Mexico.
• Germany, the Philippines, Canada and the U.K. also supply a significant number of American spouses.
• Mexican marriages dominate most of the Western United States.
• Canadian marriages, unsurprisingly, dominate the Northern border (Montana, N Dakota, Minnesota, Michigan, New Hampshire, Vermont, and Massachusetts.)
• In Alaska, by contrast, German marriages dominate. That's not too surprising when you think about it -- Alaska is military country and we've got bases in Germany.

Man, I super love WaPo's Department of Data coverage. It's always fascinating.

-KitJ

Locked Away: The Urgent Need for Immigration Detention Bond Reform

The National Immigrant Justice Center (NIJC) has authored a policy brief on the immigration bond system, Locked Away: The Urgent Need for Immigration Detention Bond Reform.

The full brief is available here.

The brief argues that the immigration bond system is arbitrary and harmful and proposes policy reforms. These reforms include shifting the evidentiary burden to the government, requiring judges to consider a person’s ability to pay, and ensuring that all detained persons have have access to bond hearings.

IE

Documenting The Criminalisation Of People Seeking Asylum In The UK

New research by Vicky Taylor and published with Border Criminologies Blog (worth checking out if you're unfamiliar) out of the UK examines the rising number of people crossing the English Channel in small boats. This research, based on courtroom observations, argues that this situation is a manufactured crisis caused by the British government's securitization policies.

The Nationality and Borders Act 2022 introduced harsher penalties for those arriving irregularly, including life imprisonment for facilitation. The Home Office has been quiet about these changes, and prosecutions are not widely publicized. But people are charged under criminal law based on their re-entry status or if they are identified as the alleged captain of the boat.

The court proceedings lack proper defense rights, and judges often rely on government rhetoric in their sentencing justifications. The research argues that the arbitrary nature of these prosecutions and the harm caused to asylum seekers and potential victims of trafficking.

Read the post here: https://blogs.law.ox.ac.uk/border-criminologies-blog/blog-post/2023/06/evidence-courtwatching-documenting-criminalisation

Austin Kocher

Library of Congress: Global Legal Monitor

Today we continue our discovery of amazing resources for immprof hosted by the Library of Congress. Check out the LOC Global Legal Monitor--an online publication "covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources."

Here's how to access it.

Go to law.gov. Click on "Collections" (circled in red below).

Click on "Digital Collections" (circled in red below).

Click on "Global Legal Monitor" (circled in red below).

On the left menu you can browse by topics and by jurisdiction (see red circle below).

If you click Browse All Topics you'll find things like:

• Asylum
• Border Security
• Citizenship and Nationality
• Immigration

If you click Brose All Jurisdictions, you'll find a list of countries. You can search for a country of interest and see what they have. For example, I clicked on Mexico and found this interesting report among the 155 they have on hand: Mexico: Migration Law Amendment Requires Placing Undocumented Children in Shelters, Not Detention Centers. 

Happy researching y'all.

-KitJ

Library of Congress: Legal Reports

Yesterday I bragged on the tour of the Library of Congress that I was able to attend on Friday. Today I'm going to spill the tea on one of the many amazing LOC resources I learned about on that tour: Legal Reports.

First things first, how can you find them?

Go to law.gov.

Click on "Legal Reports," circled in red below:

Now click on "topic" in the left-hand menu, circled in red below:

When you do that, you'll see a long list of topics. Guess what? Immigration is on that list (see red circle below)! Click it.

You're now looking at a list of Publications of the Library of Congress on the topic of immigration. What does that mean? Well, as the LOC notes on its landing page for Legal Reports: "The Law Library of Congress produces reports on foreign, comparative, and international law in response to requests from Members of Congress, Congressional staff and committees, the federal courts, executive branch agencies, and others. Selected reports are provided for the public for reference purposes only and do not constitute legal advice. The information provided reflects research undertaken as of the date of writing, which has not updated unless specifically noted."

You can sort the returns by Date, Title, Shelf Order, Relevance. And you can narrow your results via the left-hand menu by things like Format, Date, Location, Contributor, Subject, and Language.

Here are just a few examples of really fascinating reports:

• Mexico : immigration law : visa categories in Mexico
• Repatriation of immigration detainees' remains
• Asylum application processes : Canada, European Union, Germany, Italy, Malta, Portugal, Sweden, Turkey, United Kingdom
• Immigration laws from the 1940s : France, USSR

Happy researching y'all!

-KitJ

Library of Congress Webinars: Tomorrow and Beyond

I had the distinct pleasure of spending Thursday and Friday at the 2023 Emerging Immigration Scholars Conference, hosted by GW Law in Washington, DC. On Friday afternoon, our hosts took us to the Library of Congress for a special introduction to the LOC's Law Library. It was fabulous! I'll be downloading some of my newly acquired research knowledge in the coming day or two.

For now, I wanted to let you know that the LOC hosts webinars to help introduce patrons far and wide to their resources and services.

TOMORROW (July 20) there are TWO webinars of note:

• 1:00PM Eastern: Orientation to Law Library Collections. Register here.
• 2:00PM Eastern: An introduction to Congress.gov. Register here.

In terms of upcoming webinars that are a little farther out, some are just dead sexy including:

• Federal Legislative History: July 13, 2023 at 1:00pm. Register here.
• Tracing Federal Regulations: August 10, 2023 at 1:00pm. Register here.

-KitJ

USCIS Citizenship and Integration Grant Program

U.S. Citizenship and Immigration Services has announced the expansion of the Citizenship and Integration Grant Program, which provides funding for citizenship preparation programs in communities across the country. The program, now open for applications, will provide up to $25 million in grants to prepare immigrants for naturalization and promote civic integration through increased knowledge of English, U.S. history, and civics. In addition to the traditional programs that fund citizenship and English classes, the 2023 grants also include opportunities for creative and innovative approaches to preparing immigrants for naturalization.  

“Through our Citizenship and Integration Grant Program, we are helping to increase integration services like English language, U.S. history, and civics instruction to noncitizens on their journeys to becoming American citizens,” said USCIS Director Ur M. Jaddou. “Through additional funding opportunities, organizations will be able to reach more communities and ensure noncitizens have access to the tools and resources needed for citizenship education.” 

USCIS seeks to expand availability of high-quality citizenship and integration services throughout the country under the Citizenship and Integration Grant Program: 

• Citizenship Instruction and Naturalization Application Services: This grant opportunity will fund public or nonprofit organizations that offer both citizenship instruction and naturalization application services to lawful permanent residents (LPRs). USCIS expects to award 55 organizations up to $300,000 each for two years through this opportunity. Applications are due by July 28, 2023. 
• Community and Regional Integration Network Grant: This grant opportunity will provide extended integration services with a focus on individualized programming to certain immigrants, including those who entered the United States under the U.S. Refugee Admissions Program, were granted asylum, or were admitted or entered the United States as a Cuban or Haitian entrant, to attain the skills and knowledge required for successful citizenship. The program, formerly called the Refugee and Asylee Integration Services Grant, has expanded eligibility to include organizations that serve the following vulnerable populations: individuals who were admitted or entered the United States as Cuban or Haitian entrants; individuals admitted on a Special Immigrant Visa; victims of human trafficking and criminal activity; and abused spouses, children, and parents under the Violence Against Women Act. USCIS expects to award up to three public or nonprofit organizations with experience serving vulnerable populations up to $300,000 each for a period of two years through this opportunity. Applications are due by July 28, 2023. 
• Regional Hub Program: This grant opportunity is designed to build community and organizational capacity to identify, support, and prepare LPRs for citizenship. To achieve this goal, recipients will help create or expand citizenship networks and provide technical assistance to individual network members that offer citizenship instruction and naturalization application services. Through a hub and spoke funding model, the Regional Hub grant will more holistically support LPRs on the pathway to citizenship and encourage the integration of LPRs into their receiving communities. USCIS anticipates awarding up to four grants of up to $1 million each for a period of two years through this opportunity. Applications are due by July 28, 2023. 
• Innovations in Citizenship Education Program: Through this grant opportunity, USCIS will fund public, nonprofit, or for-profit organizations that foster creative approaches to preparing immigrants for naturalization and encouraging the civic, linguistic, and cultural integration of immigrants into their communities. While USCIS’ other funding opportunities support specific citizenship preparation services, the Innovations program invests in initiatives that develop, test, and share creative solutions for overcoming barriers to naturalization and expanding access to citizenship education and preparation services. USCIS expects to award up to 14 organizations up to $250,000 each for a period of two years through this opportunity. Applications are due by July 28, 2023. 

Since 2009, the USCIS Citizenship and Integration Grant Program has awarded $132 million through 579 grants to immigrant-serving organizations. These grant recipients have provided citizenship preparation services to more than 300,000 immigrants in 39 states and the District of Columbia. In Fiscal Year 2023, USCIS received support from Congress through appropriations to make these funding opportunities available to communities and expects to announce award recipients in September 2023. 

To apply for these funding opportunities, visit www.grants.gov. USCIS encourages applicants to visit www.grants.gov before the application deadline to obtain registration information needed to complete the application process. 

For additional information on the Citizenship and Integration Grant Program for fiscal year 2023, visit or email the USCIS Office of Citizenship at [email protected]. 

MHC

NEW REPORT: "The State of Immigration Enforcement and Legal Resources in Orange County”

Don't miss the NEW REPORT by Sabrina Rivera, Executive Director of the Orange County Justice Fund, and Dr. Blanca A. Ramirez, a sociologyst at USC, "The State of Immigration Enforcement and Legal Resources in Orange County.”

A full copy of the report is available here. 

The report places a spotlight on the changing immigration enforcement conditions in Orange County and the ways in which families in Orange County must navigate these threats.

The report relies on different data sources, including interviews with community members, legal services providers, and immigration attorneys. They also rely on data from TRAC at Syracuse University, the California Department of Social Services, and the VERA Institute. The report's appendix includes a timeline of immigration enforcment in Orange County.

The report comprehensively analyzes the different types of legal resources available in Orange County, including through law school clinics, nonprofit organizations, and private immigration lawyers.

IE

Portrait of Asian Americans in the Legal Profession 2.0

In celebration of AAPI Heritage Month, join Covington & Burling for a conversation with the Honorable Goodwin Liu, Associate Justice of the California Supreme Court and Eric Chung, Senior Counsel, CHIPS, U.S. Department of Commerce, as they discuss their contributions to “A Portrait of Asian Americans in the Law 2.0" which explores the reasons for, and potential solutions to, the current challenges facing the Asian American legal community.  The program will be hosted in the Washington DC office of Covington & Burling - in person and virtual attendance is offered. Sponsored by APABA-DC, Asian Pacific American Bar Association Educational Fund, and NAPABA For any event related questions, please contact Covington’s DEI Team.   Registration is here. MHC

TRAC Releases New Data Tool for Federal Immigration Prosecutions

TRAC released a new resource on their immigration quick facts page that provides data on immigration prosecutions in federal court. The page is updated monthly with data obtained through FOIA on prosecutions filed by US Attorney offices in federal courts around the country.

The page includes four data points: the total number of immigration prosecutions, the total number of referrals from CBP and ICE, the percent of immigration convictions out of all convictions for the most recent month, and the state with the largest percentage of immigration convictions out of all convictions. 

TRAC's new Immigration Prosecutions page is available online here: https://trac.syr.edu/immigration/quickfacts/criminal.html. TRAC's two other quick facts pages include recent data on immigrant detention and immigration court cases.

-Austin Kocher